Hi! :) New member here looking for advice <3

[jerni 24]

It sounds like you are already in the US, if you had no specific plans to marry when you arrived, then after you get married you could file for Adjustment of Status. You can do it from within the US and you don't have to leave during the process (in fact you cannot leave until you get your EAD/AP). With AOS you would get your Greencard in 3-6 months. (My process took 4 months)

See http://www.visajourney.com/content/i130guide2

You would need a co-sponsor if your boyfriend does not earn above poverty level, but that could be one of the parents. As far as his criminal history see http://www.avvo.com/legal-answers/i-am-a-born-u-s--citizen--but-i-have-three-felonie-185695.html where some lawyers have given opinions on felony convictions and their effect on a citizens ability to sponsor a spouse.

Edited March 2, 2014 by jerni

[cee-gee 20]

IMBRA isn't an issue with marriage visas btw. The only thing that really stops a spousal visa is the Adam Walsh Act to protect children.

I know, but the OP had initially said she thought K1 was the way to go; so IMBRA would come into play.

[NikLR 13,220]

I know, but the OP had initially said she thought K1 was the way to go; so IMBRA would come into play.

Yes I know. Which is why i'm suggesting they get married vs going the K1 route.

[Kaori 1]

I'm wanting to do whatever would be the easiest. Im here in Hawaii for 5 1/2 months specifically to see him so I'm worried that if we get married and I although I think this adjustment of status would he easiest for us- I'm worried I'll be rejected because I AM staying with him and the real purpose of me being here is to be with him.

[NikLR 13,220]

You cant be denied because you're already have been let into the USA. They can't deny you for intent after the CBP let you through unless they can prove at a later date it was intent. doesn't sound like it was, since you're researching other visa paths but yes, it's legal for you to marry and adjust your status. If you don't want to go back home for 3 months at least, then by all means, adjust away!

[cee-gee 20]

Yes I know. Which is why i'm suggesting they get married vs going the K1 route.

I think I was confused, my bad

[cee-gee 20]

I agree with NLR, getting married is the best option for you. Keep us posted!

[kitthekat 1,317]

This might help: http://www.visajourney.com/content/compare

For the felony convictions, the kidnapping one especially, you are not likely to get approved.

Your petitioner will need to file a mandatory waiver because he committed a violent crime against another person, in his case kidnapping.

From http://www.lawandsoftware.com/ina/INA-214-sec1184.html

d. Issuance of visa to fiancée or fiancé of citizen

1. A visa shall not be issued under the provisions of section 101(a)(15)(K)(i) of this Act [8 U.S.C 1101(a)(15)(K)(i)] until the consular officer has received a petition filed in the United States by the fiancée and fiancé of the applying alien and approved by the Secretary of Homeland Security. The petition shall be in such form and contain such information as the Secretary of Homeland Security shall, by regulation, prescribe. Such information shall include information on any criminal convictions of the petitioner for any specified crime. It shall be approved only after satisfactory evidence is submitted by the petitioner to establish that the parties have previously met in person within 2 years before the date of filing the petition, have a bona fide intention to marry, and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien's arrival, except that the Secretary of Homeland Security in his discretion may waive the requirement that the parties have previously met in person. In the event the marriage with the petitioner does not occur within three months after the admission of the said alien and minor children, they shall be required to depart from the United States and upon failure to do so shall be removed in accordance with section 240 [8 U.S.C 1229a] and section 241 of this Act [8 U.S.C 1231] .

2. A. Subject to subparagraphs (B) and © , a consular officer may not approve a petition under paragraph (1) unless the officer has verified that—

I. the petitioner has not, previous to the pending petition, petitioned under paragraph (1) with respect to two or more applying aliens; and

ii. if the petitioner has had such a petition previously approved, 2 years have elapsed since the filing of such previously approved petition.

2. B. The Secretary of Homeland Security may, in the Secretary's discretion, waive the limitations in subparagraph (A) if justification exists for such a waiver. Except in extraordinary circumstances and subject to subparagraph ©, such a waiver shall not be granted if the petitioner has a record of violent criminal offenses against a person or persons.

2. C. i. The Secretary of Homeland Security is not limited by the criminal court record and shall grant a waiver of the condition described in the second sentence of subparagraph (B) in the case of a petitioner described in clause (ii).

2. C. ii. A petitioner described in this clause is a petitioner who has been battered or subjected to extreme cruelty and who is or was not the primary perpetrator of violence in the relationship upon a determination that—

I. the petitioner was acting in self-defense;

II. the petitioner was found to have violated a protection order intended to protect the petitioner; or

III. the petitioner committed, was arrested for, was convicted of, or pled guilty to committing a crime that did not result in serious bodily injury and where there was a connection between the crime and the petitioner's having been battered or subjected to extreme cruelty.

2. C. iii. In acting on applications under this subparagraph, the Secretary of Homeland Security shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Secretary.

3. In this subsection:

A. The terms “domestic violence”, “sexual assault”, “child abuse and neglect”, “dating violence”, “elder abuse”, and “stalking” have the meaning given such terms in section 3 of the Violence Against Women and Department of Justice Reauthorization Act of 2005.

B. The term “specified crime” means the following:

i. Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking.

ii. Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of the crimes described in this clause.

iii. At least three convictions for crimes relating to a controlled substance or alcohol not arising from a single act.

Basically unless he can prove he was not the primary perpetrator of this crime, you will likely not be granted the waiver and thus would result in denial.

Apologies if I am misreading, but doesn't this (and the I-129F instructions) say that the petitioner only requires a waiver if he is a multiple filer (two or more) or has had a petitioned approved less than 2 years ago? If this is his first petition, then his criminal history should not have any bearing on an approval/denial right? It seems like IMBRA is more concerned with disclosure of a first-time petitioner's criminal history to the beneficiary than anything else. At least that is what I understood. Please correct me if I misinterpreted.

Just asking to satisfy my own curiosity, since either way, it does seem like the best choice for them is to marry and AOS right now.

Edited March 4, 2014 by kitthekat

[Kaori 1]

Thanks again everyone for your help I'm starting to think AOS might be the way to go. should we go through an engagement period? Do we have to have engagement photos and photos as proof of our wedding reception and all or because my intention was not to get married here is it best to do a quick engagement and go sign the marriage papers at the courts? Confused..

[Zedayn 485]

Apologies if I am misreading, but doesn't this (and the I-129F instructions) say that the petitioner only requires a waiver if he is a multiple filer (two or more) or has had a petitioned approved less than 2 years ago? If this is his first petition, then his criminal history should not have any bearing on an approval/denial right? It seems like IMBRA is more concerned with disclosure of a first-time petitioner's criminal history to the beneficiary than anything else. At least that is what I understood. Please correct me if I misinterpreted.

Just asking to satisfy my own curiosity, since either way, it does seem like the best choice for them is to marry and AOS right now.

Wow it appears you are correct. Upon closer reading, the waiver is only required if this is a multiple filer. The disqualification of the specified crime only relates to that waiver. No where does it say that the petitioner could be denied due to one of the specified crimes listed IF he is filing without the need for a waiver...ie first time filer. Good catch!

[kitthekat 1,317]

Wow it appears you are correct. Upon closer reading, the waiver is only required if this is a multiple filer. The disqualification of the specified crime only relates to that waiver. No where does it say that the petitioner could be denied due to one of the specified crimes listed IF he is filing without the need for a waiver...ie first time filer. Good catch!

Thanks for the reply and for confirming!

[NikLR 13,220]

Good catch!

Op you dont need an engagement period. Check out the AOS forum to see what you need and check out the guides. Best of luck!

Edited March 6, 2014 by NLR

[cee-gee 20]

Good catch!

Apologies if I am misreading, but doesn't this (and the I-129F instructions) say that the petitioner only requires a waiver if he is a multiple filer (two or more) or has had a petitioned approved less than 2 years ago? If this is his first petition, then his criminal history should not have any bearing on an approval/denial right? It seems like IMBRA is more concerned with disclosure of a first-time petitioner's criminal history to the beneficiary than anything else. At least that is what I understood. Please correct me if I misinterpreted.

Just asking to satisfy my own curiosity, since either way, it does seem like the best choice for them is to marry and AOS right now.

[Kaori 1]

It sounds like you are already in the US, if you had no specific plans to marry when you arrived, then after you get married you could file for Adjustment of Status. You can do it from within the US and you don't have to leave during the process (in fact you cannot leave until you get your EAD/AP). With AOS you would get your Greencard in 3-6 months. (My process took 4 months)

See http://www.visajourney.com/content/i130guide2

You would need a co-sponsor if your boyfriend does not earn above poverty level, but that could be one of the parents. As far as his criminal history see http://www.avvo.com/legal-answers/i-am-a-born-u-s--citizen--but-i-have-three-felonie-185695.html where some lawyers have given opinions on felony convictions and their effect on a citizens ability to sponsor a spouse.

May I ask what you did for part 2 of the application that asks:

I am applying for an adjustment to permanent resident status because:

An immigrant petition giving me an immediately available immigrant visa number that has been approved. (Attach a copy of the approval notice, or a relative, special immigrant juvenile, or special immigrant military visa petition filed with this application that will give you an immediately available visa number, if approved.)

My spouse or parent applied for adjustment of status or was granted lawful permanent residence in an immigrant visa category that allows derivative status for spouses and children.

I entered as a K-1 fiancé(e) of a U.S. citizen whom I married within 90 days of entry, or I am the K-2 child of such a fiancé(e). (Attach a copy of the fiancé(e) petition approval notice and the marriage certificate.)

I was granted asylum or derivative asylum status as the spouse or child of a person granted asylum and am eligible for adjustment.

I am a native or citizen of Cuba admitted or paroled into the United States after January 1, 1959, and thereafter have been physically present in the United States for at least 1 year.

I am the husband, wife, or minor unmarried child of a Cuban described above in (e), and I am residing with that person, and was admitted or paroled into the United States after January 1, 1959, and thereafter have been physically present in the United States for at least 1 year.

I have continuously resided in the United States since before January 1, 1972.

Other basis of eligibility. Explain (for example, I was admitted as a refugee, my status has not been terminated, and I have been physically present in the United States for 1 year after admission). If additional space is needed, see Page 3 of the instructions.

I am already a permanent resident and am applying to have the date I was granted permanent residence adjusted to the date I originally arrived in the United States as a nonimmigrant or parolee, or as of May 2, 1964, whichever date is later, and: (Check one)

I'm assuming other?? How did you word it?

Edited March 6, 2014 by Kaori

[Kaori 1]

Dunno why this post doubled and I'm not sure how to delete it. I'll just use this space to thank everyone again <3

Edited March 6, 2014 by Kaori