K1 or K3 Visa?

[LoveInBrazil1109 0]

Hi fellow VJer's!

This is my first post, but I've been lurking for the last couple months. I first would like to say thank you to all of you for sharing your stories and for providing a wonderful resource for people like myself that found love outside of the USA.

Before I ask my question I think it's appropriate that I introduce myself and my SO. My name is Ken, I'm 32, have lived on Orlando, FL for the past 20 years, finalizing a divorce and I am a partner in a successful automotive shop. My "better half" is Michelle. She is 26, lives in Vitoria, ES Brasil. She teaches English part time and works as a front desk agent in a hotel, full time. She has a 5 year old son and is also finalizing a divorce. We met online in July of this year and I recently visited from Sept 25 thru Oct 2, and I'll be visiting again for Christmas and New Years. We are completely in love and so excited to begin our journey to be together. However, our situation is a little unique...

The obvious issue we have now is that we are both getting divorced, My divorce is nearly complete and quite simple. We have no children together and have agreed and split all of our assets. We are just waiting for our final judgement. Hers is a bit more complicated.

She was married in Massachusetts, were she lived previously for approximately 7 years. Her previous husband entered into the country legally on B-1 visa with the intent to start a business, which he did successfully. However, Michelle was brought into the country in a "less than legal manner". Apparently her previous husband paid someone a large amount of money, and she flew from Brasil to Mexico City. From Mexico City she flew to Nuevo Laredo where she, and another Brazilian woman, where met by a man who she said did not appear to be Mexican and spoke English much better than he spoke Spanish. He picked them up from their hotel and drove them across the border at the Nuevo Laredo/Laredo border crossing. She says she was never asked for her passport and that the driver was only asked for his identification and that it looked like he showed the Border Patrol Agent a badge of some sort. (I know, I thought stuff like this only happened in movies.) He then proceeded to drive her and the other woman to Houston, TX where she was met by her then fiance. They then drove back to Massachusetts and started their life.

Shortly after arriving they married in Milford, MA. and a little more than a year later she gave birth to her son.She signed the birth certificate and her Brazilian Passport information was recorded on it. Her son is a US Citizen and has both a US and Brazilian Passport. She learned English and began working as a travel agent for one of her husband's friend's company. They continued to live as a family in Milford for several more years.

However, the marriage started to go south and she decided that she wanted to return to Brasil and separate from her husband. Upon exiting the country she cleared US customs, was never asked how she entered the country, and her passport was never stamped. She has since been back in Brasil for a little over a year, which leads us to today.

Whew! I hope you were able to keep up with that. So, this leads me to my question. We love each other dearly and want nothing more than to be together, but not sure which way will be the best for our situation. She believes that if we apply for a K-1 visa that she will likely be denied because she entered the country illegally previously. I contend that even though she was here illegally, she was never really "caught" (if that's the appropriate terminology) so I'm not sure if it would really be relevant. Granted, giving birth to a son here is pretty good evidence that she was here.

So, she believes that it would be easier for us to get married in Brasil and to file for a K-3 visa. This, in my opinion, would be a much more complicated, expensive, and drawn out process in order for us to be together. Largely because I will have to travel to Brasil twice within 30-45 days to get married because we would be required to first apply for a marriage license, then wait 30 days to be married. Not to mention that translating foreign marriage documents sounds much more difficult than the standard K-1 process.

Lastly, we're not sure whether or not her son will need a K-2 visa for either choice. My inclination is that he won't as he is a US Citizen and has a US passport.

I hope this wasn't too much of a doozey of a first post, and I'm eagerly awaiting your feedback and knowledge! Thank you!

[Ryan H 3,795]

Moved from K1 Process & Procedures to What Visa Do I Need - Family Based Immigration forum.

[Hypnos 6,576]

K-3s are rarely issued anymore, you should forget about that route. Additionally, US citizens are never issued visas because they can enter and leave the country at will, so you won't need to worry about that either.

You are right to be concerned about your wife's previous entry and departure. I'm not even going to venture a guess with regards to that, other than to say consult an experienced immigration attorney before filing anything. I would consult a few and find a consensus.

Edited November 13, 2013 by Hypnos

[Girl from Celebes 588]

Some experienced users here will able to answer your question. The positive side of your story is your girlfriend realized what she did by break the law was wrong and aware that it's probably will make her difficult to obtain a visa unlike some other users insisted they did nothing wrong whatsoever.

Speaking about what kind visa will be better, K-3 is now obselete so the choice left only CR-1/IR-1 or K-1 visa. They will going to ask her past trips to US on application and definitely this one will be under scrutiny. Though you said she's never been caught but remember giving false information on the application will going to jeopardize her chance to be with you in US.

Last but not least, I am hoping you'll find the answer here. Your picture both of you together is very lovely. Good luck!

[aleful 1,905]

hi

she has a 10 year ban which she will need to file a waiver and you do the hardship letter. if a person lives here for more than a year and leaves the country, it automatically triggers a 10 year ban, for any type of GC petition she will need a waiver to overcome the ban

you will need to write a hardship letter proving that that you would suffer greatly if she is not allowed back in the country and reasons why you cannot move to Brazil to live with her.

so you will have to go through the CR1 route, she will be denied the visa and then receive a letter letting her know if she qualifies for the i601 waiver.

check the forum about waivers and also you can check the website immigrate2us.net

they have forums for i601 waivers from different countries

Edited November 13, 2013 by aleful

[FulanoDeTal 19]

Hi, and welcome! As others have mentioned, it's important that your fiance fully disclose her prior entry and presence in the U.S. on any documents that you file. I also think that this is the kind of case in which an immigration lawyer would be helpful. For example, there may be an argument that technically your fiance did not "enter without inspection," because she evidently did entered the U.S. at an official border crossing and was cleared by a CBP Officer (albeit an apparently corrupt one). Of course, she didn't have a visa upon entry, and even if she had a visa she presumably would have been in an overstay situation. There may potentially be other issues involved, such as whether your fiance had prior knowledge of payments to the CBP Officer, or was simply doing as she was instructed. So there's a lot going on here, and I think that at a minimum, a consultation with an experienced immigration lawyer would be in order.

Good luck!

[LoveInBrazil1109 0]

Thanks for all of the replies everyone. I can't say enough how great it is to speak with others who have been or are in the same position as us. I'm sure it's obvious that we are completely overwhelmed by this process, and we haven't even begun yet!!

So, just so understand, the general consensus is that we should marry in Brasil and start the CR-1 process, and completely abandon the idea of the "simpler" K-1 visa. During this process we should expect to receive a denial, and I will need to prepare a hardship letter with all supporting evidence of the hardship I would endure. But, of course, only after consulting with a few reputable immigration attorneys.

Does this sound correct?

[FulanoDeTal 19]

Thanks for all of the replies everyone. I can't say enough how great it is to speak with others who have been or are in the same position as us. I'm sure it's obvious that we are completely overwhelmed by this process, and we haven't even begun yet!!

So, just so understand, the general consensus is that we should marry in Brasil and start the CR-1 process, and completely abandon the idea of the "simpler" K-1 visa. During this process we should expect to receive a denial, and I will need to prepare a hardship letter with all supporting evidence of the hardship I would endure. But, of course, only after consulting with a few reputable immigration attorneys.

Does this sound correct?

That pretty much sums it up. I suggest you talk to the lawyer(s) before doing anything else like getting married or filing paperwork, so that you do not inadvertently create any additional issues. Also, as you have probably figured out, this is going to take time and patience, so be prepared and best wishes!