Applying for CR-1 Spouse Visa while fiance still under J1 212(e)/two-year requirement

[greenyfield 0]

Hello all,

I'd really appreciate your help and advice on our unique situation. I'm a US citizen, and my fiance was studying in the US on a J1 visa, and went home last December (2014), which means her 2 year home requirement is up December 2016. We are not trying to waive her two year requirement, but want to start the CR1 and I-130 process prior to December 2016, as this will take many months to complete. I'm planning to fly to Brazil early in 2016 to do a small wedding ceremony at the court just to get our marriage license to start the process, as we want to have our bigger family ceremony in Brazil next November 2016. We aren't interested in the K1/fiance visa, as we need to have our ceremony down in Brazil.

Here's my main questions:

1. Once we obtain our marriage license in Brazil early in 2016, can we start the immigration paperwork even though she has the 2 year requirement hanging over her head? Again, we're not trying to waive this requirement, but rather just start the process so that when it ends in December 2016, she can come right away to the US (assuming the approvals are all complete).
2. Will USCIS automatically deny our application if they see her two year requirement isn't completed yet?
3. Once we file the I-130 and start the CR1 paperwork, can she still travel to the US on a B1 visitors visa without affecting her application, and without adding extra time to her 2 year home stay requirement?

Thank you so much for any help and insight!

Sincerely,

Shawn

[FabtheFab 67]

Hi Shawn,

I just got my CR1 visa from the embassy in Rio. It took me 9 months. I don't think that USCIS will stop your petition (they do not do that even for people who have overstayed or were deported), but the Consular Officer will bring it up during your interview - and it would be after that you would need to come with a waiver if you were interested in one.

But since you are not using a waiver, my suggestion is that you wait a bit to apply. Do it, let's say, in April-May next year. That way, you will probably get your interview after December 2016 and the 2 year requirement will not be a problem anymore. If for any reason the interview comes before that, you can always write to the embassy and ask them to postpone your interview a little bit, that is not a problem.

She can travel normally during the whole process using her B1.

Good luck!

[Ryan H 3,925]

Here's my main questions:

1. Once we obtain our marriage license in Brazil early in 2016, can we start the immigration paperwork even though she has the 2 year requirement hanging over her head? Again, we're not trying to waive this requirement, but rather just start the process so that when it ends in December 2016, she can come right away to the US (assuming the approvals are all complete).
2. Will USCIS automatically deny our application if they see her two year requirement isn't completed yet?
3. Once we file the I-130 and start the CR1 paperwork, can she still travel to the US on a B1 visitors visa without affecting her application, and without adding extra time to her 2 year home stay requirement?

Answers:

1. The process can begin as soon as you are officially married. You would need to submit a photocopy of the marriage certificate with your forms (marriage license is useless since it doesn't actually prove you are married, only that you are allowed to).
2. You will submit a petition to USCIS, not an application. They will not deny the petition if the HRR (home residency requirement) date has not passed. She will even be able to interview prior to the HRR being over but no visa will be issued until the HRR end date passes.
3. Yes she can travel on a visitors without adversely affecting the process or extending the HRR if she already has one. If she does not yet have one and wishes to apply, the chances of it being granted are next to nil (refusal of a visitors visa would also would not adversely affect the immigration process or the HRR).

[grad_student 11]

To greenfield, I am going throgh the same situation. I also had J1 visa to US with home residency requirement (HRR). I even filed the I-130 petition before leaving US for my home country which was approved later. So it wont be an issue to start the process. You can prolong the process at NVC by intentionally delaying the submission of the documents. You have one year to take each step at the NVC, so that wont be an issue.

One thing to rememebr, your fiancee's 2 year HRR will start when the DS-2019 expires, that may be way after she leaves US for Brazil. Just so you know.

Answers:

1. The process can begin as soon as you are officially married. You would need to submit a photocopy of the marriage certificate with your forms (marriage license is useless since it doesn't actually prove you are married, only that you are allowed to).
2. You will submit a petition to USCIS, not an application. They will not deny the petition if the HRR (home residency requirement) date has not passed. She will even be able to interview prior to the HRR being over but no visa will be issued until the HRR end date passes.
3. Yes she can travel on a visitors without adversely affecting the process or extending the HRR if she already has one. If she does not yet have one and wishes to apply, the chances of it being granted are next to nil (refusal of a visitors visa would also would not adversely affect the immigration process or the HRR).

I agree with what Ryan H said above, other than his response to #2. I emailed US Embassy here in Islamabad and I was told that I need to have fulfilled my 2 year HRR at the time of interview or have a waiver for it. Which makes it sound like they will deny my visa application if I schedule my visa interview before completing 2 year HRR and also dont have the waiver (which is impossible to get in my home country).

Ryan H, do you care to explain the source of your info? It would be great if I can have my visa interview scheduled before my 2 year HRR is up so I can leave for US as soon as it is up.

[greenyfield 0]

Thank you all for this very helpful information. It's given me and my fiance some great direction as we move forward in submitting the petition to USCIS early in 2016. I do have a couple remaining questions for Ryan H, if you or others wouldn't mind clarifying:

1. You will submit a petition to USCIS, not an application. They will not deny the petition if the HRR (home residency requirement) date has not passed. She will even be able to interview prior to the HRR being over but no visa will be issued until the HRR end date passes.
2. Yes she can travel on a visitors without adversely affecting the process or extending the HRR if she already has one. If she does not yet have one and wishes to apply, the chances of it being granted are next to nil (refusal of a visitors visa would also would not adversely affect the immigration process or the HRR).

Regarding #1, I've heard mixed recommendations about having her interview before her home residency requirement (HRR) is expired. I would hate to file the application and waste the fees, only to be denied because she still has time left on her HRR. Would it be better to wait until after her HRR is finished to schedule her interview? Would her visa be granted the day of the interview, or would we need to wait further before her approval to come to the US is granted?

Regarding #2, does this mean that the US Consular office would be unlikely to grant her a B-2 visitor/tourist visa because she has the two year HRR? We'd like to get her a B-2 just so she can visit me in the US this year until her remaining HRR completes. She has a valid job/contract in Brazil and has graduated from university. What, if any, could be reason for her getting denied a B-2 visitors visa?

Many, many thanks for all your help and recommendations!

[newacct 688]

3. Once we file the I-130 and start the CR1 paperwork, can she still travel to the US on a B1 visitors visa without affecting her application, and without adding extra time to her 2 year home stay requirement?

Any time she's in the US, she's obviously not physically present in her home country, so that time won't be counted as part of the 2 years.

[Ryan H 3,925]

Regarding #1, I've heard mixed recommendations about having her interview before her home residency requirement (HRR) is expired. I would hate to file the application and waste the fees, only to be denied because she still has time left on her HRR. Would it be better to wait until after her HRR is finished to schedule her interview? Would her visa be granted the day of the interview, or would we need to wait further before her approval to come to the US is granted?

Regarding #2, does this mean that the US Consular office would be unlikely to grant her a B-2 visitor/tourist visa because she has the two year HRR? We'd like to get her a B-2 just so she can visit me in the US this year until her remaining HRR completes. She has a valid job/contract in Brazil and has graduated from university. What, if any, could be reason for her getting denied a B-2 visitors visa?

Many, many thanks for all your help and recommendations!

Answers:

• If an interview were to take place prior to the HRR end date and that was the only impediment to a visa being issued, then the visa would simply not be issued until that date has passed. One thing to realize is the medical exam as a limited validity so this scenario could result in a short time to use the visa or having to undergo another medical exam. To avoid hassles, it's best to have the interview take place either after the HRR end date or a very brief time period before that date. Don't less this delay you filing the I-130 though, the NVC phase is the time where the process can be stretched out to fit one's own personal circumstances.
• The HRR has no bearing on a tourist visa application whatsoever. Tourist visa applicants must show "strong ties" to their own country when applying. However, having a US Citizen spouse essentially supersedes any ties an applicant may have to their own country (i.e. a US Citizen spouse is more of tie to the US, not their won country) which makes the odds of being granted a tourist visa low.