To get a lawyer or not?

[NatalieRose 24]

Okay, so my fiancé and I are trying to decide if we should get a lawyer or do the k-1 process on our own. Our situation is a little tricky and that’s why we’re even considering a lawyer. I applied for an ex fiancé in 2017. We passed the I-129f and our application had reached the embassy. Then in March 2018 I withdrew the application. (We had broken up a few months prior but I forgot to withdraw the application) My ex fiancé was abusive. I fell in love with my current fiancé who I have known since 2016 and we started dating in march 2018. We ended up getting pregnant in August 2018. I’m now 24 weeks. We want to apply for a fiancé visa because we want to move to the US to start our life with our son. I’ve been living in Cambodia since 2016. Because I applied for a different beneficiary in 2017 and withdrew the application in 2018 and now one year later am applying again, that’s why we’re considering a lawyer. I believe we will need a IMBRA waiver. Any advice?? 

Edited January 22, 2019 by NatalieRose

[accumbyte 148]

8 hours ago, NatalieRose said:

I believe we will need a IMBRA waiver. Any advice?? 

It's called a waiver for multiple filings: https://www.marriagevisaattorney.com/k1-fiance-visa-waiver-multiple-filings/ It's for people that have filed around 2 or more prior I-129F petitions for different beneficiaries. It doesn't apply to you since you only have done 1 prior I-129F petition and that one was not approved since you withdrew it.

Edited January 22, 2019 by accumbyte

[NatalieRose 24]

7 minutes ago, accumbyte said:

It's called a waiver for multiple filings: https://www.marriagevisaattorney.com/k1-fiance-visa-waiver-multiple-filings/ It's for people that have filed around 2 or more prior I-129F petitions for different beneficiaries. It doesn't apply to you since you only have done 1 prior I-129F petition and that one was not approved since you withdrew it.

Hmm, my mother did a consolation with a lawyer (I couldn’t since I’m overseas and can’t call) and the lawyer said I would need one. 

[accumbyte 148]

5 minutes ago, NatalieRose said:

Hmm, my mother did a consolation with a lawyer (I couldn’t since I’m overseas and can’t call) and the lawyer said I would need one. 

My hunch is the lawyer is incorrect but I'll tag on more knowledgeable users: @pushbrk, @geowrian, @Hypnos, @NikLR, @payxibka, etc.

[payxibka 10,044]

Waiver is needed for a second petition within two years of the approval of a previous petition, or on the third petition filed.  If the NOA2 date is within 2 years of the desired filing date of the current (which based on the limited information it most likely could be) then a waiver is needed.

The OP needs to come forth with the exact dates in order to do the math properly.

 

I did my waiver requests myself...

 

@accumbyte

Edited January 22, 2019 by payxibka

[payxibka 10,044]

9 hours ago, NatalieRose said:

Okay, so my fiancé and I are trying to decide if we should get a lawyer or do the k-1 process on our own. Our situation is a little tricky and that’s why we’re even considering a lawyer. I applied for an ex fiancé in 2017. We passed the I-129f and our application had reached the embassy. Then in March 2018 I withdrew the application. (We had broken up a few months prior but I forgot to withdraw the application) My ex fiancé was abusive. I fell in love with my current fiancé who I have known since 2016 and we started dating in march 2018. We ended up getting pregnant in August 2018. I’m now 24 weeks. We want to apply for a fiancé visa because we want to move to the US to start our life with our son. I’ve been living in Cambodia since 2016. Because I applied for a different beneficiary in 2017 and withdrew the application in 2018 and now one year later am applying again, that’s why we’re considering a lawyer. I believe we will need a IMBRA waiver. Any advice?? 

Why don't you get married and apply for a spousal visa.  IMBRA multiple petition limits do not affect I-130's

Edited January 22, 2019 by payxibka

[geowrian 22,335]

A multiple filer waiver is needed when:

"1. You are filing this petition on behalf of your fiancé(e) and you previously filed Form I-129Fs on behalf of two or more fiancé(e) beneficiaries; or

2. You are filing this petition on behalf of your fiancé(e), you have previously had a Form I-129F approved, and less than two years have passed since the filing date of your previously approved petition"

 

If either of those is met, then a waiver is needed.

The waiver is not formalized...you just need to describe why one is needed and that you are requesting the waiver. They are generally approved.

Usually when waivers are involved I suggest a lawyer, but the multiple filer waiver is generally simple enough to do on your own.

[payxibka 10,044]

2 minutes ago, geowrian said:

A multiple filer waiver is needed when:

"1. You are filing this petition on behalf of your fiancé(e) and you previously filed Form I-129Fs on behalf of two or more fiancé(e) beneficiaries; or

2. You are filing this petition on behalf of your fiancé(e), you have previously had a Form I-129F approved, and less than two years have passed since the filing date of your previously approved petition"

 

If either of those is met, then a waiver is needed.

The waiver is not formalized...you just need to describe why one is needed and that you are requesting the waiver. They are generally approved.

Usually when waivers are involved I suggest a lawyer, but the multiple filer waiver is generally simple enough to do on your own.

IMBRA imposes limitations on the number of petitions a petitioner for a K nonimmigrant visa for an alien fiancé(e) (K-1) may file or have approved without seeking a waiver of the application of those limitations.

 

1) If the petitioner has filed two or more K-1 visa petitions at any time in the past, or

2) Previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver.

 

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives 1998-2008/2006/imbra072106.pdf

 

I read # 2 to be the approval date not the filing date of the approved petition.  What do you think?

[accumbyte 148]

12 minutes ago, payxibka said:

Why don't you get married and apply for a spousal visa.  IMBRA multiple petition limits do not affect I-130's

OP has considered the CR-1:

• https://www.visajourney.com/forums/topic/690704-fiancé-and-i-have-a-child-together-should-we-do-the-k1-or-k3-visa/?page=2
• https://www.visajourney.com/forums/topic/695700-applying-for-a-new-k-1-visa-within-2-years-apart/?do=findComment&comment=9540968

[geowrian 22,335]

2 minutes ago, payxibka said:

IMBRA imposes limitations on the number of petitions a petitioner for a K nonimmigrant visa for an alien fiancé(e) (K-1) may file or have approved without seeking a waiver of the application of those limitations.

 

1) If the petitioner has filed two or more K-1 visa petitions at any time in the past, or

2) Previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver.

 

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives 1998-2008/2006/imbra072106.pdf

 

I read # 2 to be the approval date not the filing date of the approved petition.  What do you think?

I literally copied/pasted from the I-129F instructions, which only say 2 years from the date of filing.

That said, the memo you posted does describe it differently (as you pointed out): that it's within 2 years since the approval of the petition.

 

As a matter of technical "correctness", I would generally go by the latest instructions as the memo is from 2006 and the content may have been subsequently updated. But the safer option would be to go by the approval date.

[payxibka 10,044]

8 minutes ago, geowrian said:

I literally copied/pasted from the I-129F instructions, which only say 2 years from the date of filing.

That said, the memo you posted does describe it differently (as you pointed out): that it's within 2 years since the approval of the petition.

 

As a matter of technical "correctness", I would generally go by the latest instructions as the memo is from 2006 and the content may have been subsequently updated. But the safer option would be to go by the approval date.

I agree going with choosing the worst case scenario as there are other technical "incorrectness" in other sections of the I-129F instructions.  If you make the request and it is not needed then it would be ignored.

[geowrian 22,335]

1 minute ago, payxibka said:

I agree going with choosing the worst case scenario as there are other technical "incorrectness" in other sections of the I-129F instructions.  If you make the request and it is not needed then it would be ignored.

100% agreed

[pushbrk 12,103]

7 hours ago, NatalieRose said:

Hmm, my mother did a consolation with a lawyer (I couldn’t since I’m overseas and can’t call) and the lawyer said I would need one. 

Hopefully, you mean "consultation".  Asking them to waive the multiple filing limits consists of a couple sentences added to a cover letter.  USCIS seems to be interpreting two or more prior, as two total.  Silly, but true.

[NatalieRose 24]

11 hours ago, payxibka said:

Waiver is needed for a second petition within two years of the approval of a previous petition, or on the third petition filed.  If the NOA2 date is within 2 years of the desired filing date of the current (which based on the limited information it most likely could be) then a waiver is needed.

The OP needs to come forth with the exact dates in order to do the math properly.

 

I did my waiver requests myself...

 

@accumbyte

Thank you! I do have records of the exact days, but I will need to dig through some paperwork to get those (I will do that of course before we complete the petition.) Do you have an example form of what the waiver should look like? 

[NatalieRose 24]

11 hours ago, payxibka said:

Why don't you get married and apply for a spousal visa.  IMBRA multiple petition limits do not affect I-130's

We had considered the spouse visa (and still are). But due to some circumstances (like me going to the US to give birth) we would not be able to get married until approx Jan 2020 (if we got married in cambodia). So that would make the timeline much longer.