Should my South Korean fiancee and I cancel our K-1 visa application to use an F-1 student visa instead?

[judah&shin 0]

My fiancee studied with a K-1 visa in the US for 4 years and graduated recently. Our K-1 visa application was recieved by USCIS in Vermont on April 30th. We recieved our first notice of approval last week. Now we are uncertain whether it was wise to file the K-1 application. This is because we wish to be married in Korea on June 6 and return to America on June 19th (to be wed in August)--considering that the K-1 process takes a long time. Will cancelling the K-1 application help us now? Will the USCIS record with the filing of a K-1 visa ruin her chances to return with me to the US on an F-1 student visa for more classes and eventual marriage? We know our options are very limited--so what is the best plan for us now?

[Minya's wife 25]

My fiancee studied with a K-1 visa in the US for 4 years and graduated recently. Our K-1 visa application was recieved by USCIS in Vermont on April 30th. We recieved our first notice of approval last week. Now we are uncertain whether it was wise to file the K-1 application. This is because we wish to be married in Korea on June 6 and return to America on June 19th (to be wed in August)--considering that the K-1 process takes a long time. Will cancelling the K-1 application help us now? Will the USCIS record with the filing of a K-1 visa ruin her chances to return with me to the US on an F-1 student visa for more classes and eventual marriage? We know our options are very limited--so what is the best plan for us now?

Welcome to VJ!

If you're planning to marry in Korea, a K-1 is not right visa for you at all. If you marry outside the US while a k-1 is pending (being processed) the K-1 visa becomes invalid and you must start all over again with a spousal visa application.

The F-1 is a student visa...and should not to be used to come to the US for marriage purposes. (Its a question of "intent"....and the burden of proof is on you.)

You may be causing difficulty for yourself, for future Adjustment of Status, by marrying in Korea. If you marry there, but your *now* wife uses a student visa to enter the US....you would not be able to adjust status here in the US. You as the US citizen would have to fill out a spousal visa petition, submit to USCIS and your wife would still have to go back to Korea to go through an interview to receive a spousal immigrant visa. The K-1 visa application is obviously in the USCIS database once you receive the letter of receipt from them (the NOA1). If you cancel, there is no guarantee that it will not be a subject that you may have to explain at a later date....either during the F-1 visa interview (not sure what information you are asked to disclose during that process) or during the eventual Adjustment of Status process.

Just an FYI, your petition is at the Vermont Service Center....their processing times are much more speedy than California. Your case will be approved much more quickly than you expect. (VSC-s average processing times, as reported here on VJ is about 30 days or so, I think.) Take a look at the various guides available on this site....it will give you a better idea of the options available for family based immigration. This way you will be able to make the best decision with regards to your own situation.

-P

Good luck!

[Dan J 277]

Is your fiancee in the US right now? Did you get engaged before her last entry into the US? If so the best course of action would be to immediatly get married and file for AOS. In this case, she will not be able to leave the US and return unless she either receives her green card or advanced parole. But this is the shortest path to immigration.

If not, then your only option is to take the marriage/fiancee visa route. If you intend to legally get married outside of the US, you cannot use the K-1 visa. You have to file for K-3 after the wedding. Its also possible that she will be denied entry on the J1 visa since she has a fiancee/husband here and may intend to immigrate.

[Sinergy 3]

If you cancel your K1 now you will have to start ALL OVER again with the K3. I would suggest go on with the K1 since it was already approved, WAIT, get married here first since it is required within 90 days after the arrival of your fiance, then go back to korea and marry in her country.

Again its up to you, but your so close i wouldnt cancel the K1 right now. IMO

[judah&shin 0]

Thank you for all your responses! Unfortunately, there is a typo in my original question. My fiancee has been here on an F-1 visa for 4 and a half years. We were planning on going the K-1 visa route, but now we think it was the wrong way to go because we didn't file early enough for her to have her interview during our already-purchased plane trip to South Korea (leaving May 23rd, returning June 19th). Notice that the wedding we've planned for Korea is ceremonial only--not for legal purposes. So, did the K-1 visa application we filed ruin her chances of being able to return with me to the US on an extension of her F-1 visa even if she has a full-time post-grad class load scheduled? Should we cancel the K-1 and rely on the F-1 because we could get married in August like we've planned? Or should we go through with the K-1, even though we'd have to postpone the American wedding from August to a less convenient time for us and our guests? What advice do you all have for us now that I've clarified the issue?

[Dan J 277]

Thank you for all your responses! Unfortunately, there is a typo in my original question. My fiancee has been here on an F-1 visa for 4 and a half years. We were planning on going the K-1 visa route, but now we think it was the wrong way to go because we didn't file early enough for her to have her interview during our already-purchased plane trip to South Korea (leaving May 23rd, returning June 19th). Notice that the wedding we've planned for Korea is ceremonial only--not for legal purposes. So, did the K-1 visa application we filed ruin her chances of being able to return with me to the US on an extension of her F-1 visa even if she has a full-time post-grad class load scheduled? Should we cancel the K-1 and rely on the F-1 because we could get married in August like we've planned? Or should we go through with the K-1, even though we'd have to postpone the American wedding from August to a less convenient time for us and our guests? What advice do you all have for us now that I've clarified the issue?

Your situation is a bit more complicated than most peoples, you may want to find a lawyer. But I'll see how I can help.

Ok that helps. Its possible she will not be able to enter on an F-1 visa with a K visa pending. Its up to the officers at the PoE. She may not be allowed into the country even if you didnt have a K-1 visa, just having a fiancee here would be enough to deny entry.

Student visas sometimes have a Home Residency Requirement of up to 2 years before you can file for another type of visa. It may or may not apply to your situation.

You do have the opportunity to skip the visa process and go directly to AOS. You can file for AOS on other visas provided you two were engaged after her last entry into the US. However, if you do take this route, you would have to postpone your trip to Korea (Airline tickets can be reschedule for free or for a fee depending on your fare class).

If you do however take your trip and reenter the country (F1 visa), you will no longer be able to get married and file for AOS, at that point it would be considered fraud and she may have alot of trouble getting or be denied a green card.

If you do follow the K-1 route, and you are able to enter the country after your trip on the F1 visa, she will have to return to Korea for the medical/interview. This could take some time. As well as visas are rarely granted the same day as the interview.

If I were you, I would postpone the trip to Korea, get married at the courthouse, file for AOS and then make the trip to Korea once AP has been granted. Thats probably the shortest and maybe cheapest route to same goal. With or without a K-1 visa pending, there is no guarantee that she will even be able to re-enter the country after your trip to Korea on the F1 visa..

[judah&shin 0]

Thank you so much for your recent response Dan (and to everyone else too)! I think we should play it safe and file an AOS quickly since we are here now and she didn't have the intent of marrying when she entered the US. We can go to Korea later. How do you suggests that we deal with USCIS Vermont now to change our plan from K-1 to AOS?Does anyone have experience with such a process that can explain? Also, what role does advance parole play in our plan?

[pnd629 0]

Thank you so much for your recent response Dan (and to everyone else too)! I think we should play it safe and file an AOS quickly since we are here now and she didn't have the intent of marrying when she entered the US. We can go to Korea later. How do you suggests that we deal with USCIS Vermont now to change our plan from K-1 to AOS?Does anyone have experience with such a process that can explain? Also, what role does advance parole play in our plan?

You will need to cancel your K-1 petition since you aren't going to use it. Then you need to file for AOS. Different forms and different mailing address.

Your wife (or soon to be wife) should definitely apply for AP so she can enter the U.S. again after visiting her home country.

[Dan J 277]

You will have to start with canceling the current petition and then getting married. Your AOS will be a bit diffrent from those filing for AOS from K-1 visas. There are a couple guides on this site that will help you. You will need to have a medical done here in the US.

http://www.visajourney.com/forums/index.ph...page=i130guide2

http://www.visajourney.com/forums/index.ph...p;page=otheraos