Family separated by immigration policies

[Caladan 19]

I have some sympathy for them as it seems to be quite a common misconception here that if you apply for a fiancé visa while you're both still single, and have a wedding in the person's home country, and then get the visa, it's okay to enter the country. There's about one question per week like that in the K-1 forum, and there's always someone who doesn't quite get it because they are fulfilling the spirit of the law.

Intuitively, you're married to the person you told DoS you were going marry, and if you haven't educated yourself about the ins and outs of all the laws (is there a visajourney in 1998? lots of pdfs of info? a nice website?), it would be very easy to get bad advice from a lawyer or a well-intentioned friend who would say, "Come on, you're not doing anything wrong, you were engaged when you got the visa and you're not using anyone for a green card, just go ahead."

All y'all can cast stones if you want, but there have been so many counterintuitive steps in this process where if I hadn't had the Internet at my fingertips we wouldn't have known what to do.

So while the ban seems to be correct due to the overstay, I hope she's eligible for a hardship waiver.

[rebeccajo 14]

As I often say when a reference is made to 'breaking the law' as it refers to a immigration 'crime'...........

C'mon people...is it murder? Is it manslaughter? Is it theft?

As with any 'crime', the punishment needs to befit it. Due process needs to be involved, and all the charges and all the tools of the prosecution should be transparent to the defendant.

Anything less violates the Constitution.

But then...the Constitution doesn't protect non-US citizens........

Oh what a tangled web.

Edited April 12, 2007 by rebeccajo

[raymaga 25]

I knew all the rules and regulations when we applied for the K-1 Visa, and never would I have married first and then entered the U.S. with a K-1 (FIANCE!!!!!!) Visa.

The mistake a lot of people make is that they plan the wedding BEFORE they actually have the visa in hand. People need to realize they need to wait for their approval and THEN make wedding plans. Don't put the cart before the horse!!!!

Ten years is too harsh a punishment. Now that she is back in her home country, she should just have to apply for the K-3 visa.

[ivona 0]

The date for the wedding approached quickly, but the visa was still missing.The couple decided to go on with the ceremony anyway.

How is this NOT fraud?

1). They could have postponed the entire event but CHOSE not to do so because it would be "inconvenient".

2). They could have CHOSEN to have a ceremony without doing the legal paperwork to get married. Lord only knows why they did not choose this option.

3). They could have CHOSEN to re-file for an appropriate visa after getting married.

They had plenty of reasonable, viable options. What did they do? They CHOSE the route that (they thought) was most convenient and suitable for them, instead of following the law. They CHOSE to engage in a clear fraud. Kudos to USCIS.

Cheers!

AKDiver

While I do think a 10 year ban is too harsh concerning two children and so on, I do have to agree with AKDiver- the name of the visa itself shows what its purpose is. What the couple decided to do was their conscious decision and therefore fraud....

I have some sympathy for them as it seems to be quite a common misconception here that if you apply for a fiancé visa while you're both still single, and have a wedding in the person's home country, and then get the visa, it's okay to enter the country. There's about one question per week like that in the K-1 forum, and there's always someone who doesn't quite get it because they are fulfilling the spirit of the law.

According to the article, the wedding was in Hawaii

How did she enter the country for the wedding is my question?

And I completely don't get what happened with the AOS after she entered the country....

LisaD said it best

Edited April 12, 2007 by ivona

[Caladan 19]

I have a friend (real life), married about five years now, who only didn't run into this problem because the Montréal officer happened to ask about their plans. Bad lawyer. My friend says, "I want to get married to my fiancé in Canada." Lawyer says, since he's your fiancé, get a K-1. They are both single, they apply, the officer says "Congrats, when's the wedding?" the guy says "We're getting married outside Toronto in a couple weeks", the officer says "Whoa, wait a minute. Don't register it legally or you'll have to start over."

Nice catch by the consulate, and I'm not sure what they were thinking, except that it seems that the train of thought was 'I am a fiancé of an American as of now, so therefore I apply for the fiancé visa now." Not thinking that the status had to persist past the interview up to the PoE, if you get my drift. And I'm not seeing anywhere in C.'s paperwork that says 'Now that you have the visa, you must preserve your eligibility to enter the U.S.'

[Caladan 19]

According to the article, the wedding was in Hawaii

...

I imagine she had a tourist visa. It's not illegal to get married and *leave*, so if she had a visa to visit Hawai'i, she could come and marry, then fly back to Japan. That's perfectly fine; the problem is using the K-1 after that.

[ivona 0]

According to the article, the wedding was in Hawaii

...

I imagine she had a tourist visa. It's not illegal to get married and *leave*, so if she had a visa to visit Hawai'i, she could come and marry, then fly back to Japan. That's perfectly fine; the problem is using the K-1 after that.

With K1 pending I would think getting a visitors visa would pose a bit of an issue, guess not...

My bigest conundrum is still the whole- what was going on with immigration from the time of her entry to nine years after that.....why wasn't this caught earlier.....

[LaL 418]

According to the article, the wedding was in Hawaii

...

I imagine she had a tourist visa. It's not illegal to get married and *leave*, so if she had a visa to visit Hawai'i, she could come and marry, then fly back to Japan. That's perfectly fine; the problem is using the K-1 after that.

With K1 pending I would think getting a visitors visa would pose a bit of an issue, guess not...

My bigest conundrum is still the whole- what was going on with immigration from the time of her entry to nine years after that.....why wasn't this caught earlier.....

in the article it states she tried to AOS several times at the suggestion of their attorney(s). She wasn't just here trying to fly under the radar, they were trying to correct a mistake. 10 years is rediculous as a punishment.

Edited April 12, 2007 by lal_brandow

[homesick_american 1]

According to the article, the wedding was in Hawaii

...

I imagine she had a tourist visa. It's not illegal to get married and *leave*, so if she had a visa to visit Hawai'i, she could come and marry, then fly back to Japan. That's perfectly fine; the problem is using the K-1 after that.

With K1 pending I would think getting a visitors visa would pose a bit of an issue, guess not...

My bigest conundrum is still the whole- what was going on with immigration from the time of her entry to nine years after that.....why wasn't this caught earlier.....

in the article it states she tried to AOS several times at the suggestion of their attorney(s). She wasn't just here trying to fly under the radar, they were trying to correct a mistake. 10 years is rediculous as a punishment.

I agree; I think 10 years is too harsh but on the other hand there are people sitting in countries around the world twiddling their thumbs waiting out multi-year bans for overstays too. Letting her off with a slap on the wrist would set a bad example.

What I think the USCIS should do is simplify their procedures and make their instructions much more clear. US government publications are full of jargon and legal mumbo-jumbo that most people won't understand the first time they read it, and it's easy to make a mistake. Most of us double- and triple-check, but not everyone does. The fact that so many boards like this exist for US immigration issues is clear evidence that the procedures are a little too complicated. It IS easy to make an innocent mistake and the penalties for those are severe.

In this case, however, I don't think the mistake was innocent. The paperwork they got from the INS should have spelled it out clearly enough, and at the end of the day it's their legal responsibility to understand the terms of eligibility.

In the end this woman will almost certainly get a hardship waiver. She won't be cooling her heels in Japan for 10 years. No way.

[ivona 0]

I'm not saying they were trying to fly under the radar and like I said, I do agree 10 year ban is a bit too harsh, BUT the original "mistake" of marrying and then entering on K1 was their choice... and I don't think it was an innocent we didn't understand the instructions type of mistake...

it seems to me more like they decided to not take the immigration process and USCIS seriously enough and risk it...

And frankly, I do not agree that the process is too complicated but like everything else it demans YOUR responsibility and checking and rechecking.... I've written grants more complicated than K1 and AOS packets were...

And these don't seem to be some poor, uneducated people who can barely read or understand english

In any case, if you look hard enough you will find circumstances that you can use to justify stepping away from the rules but were would that get us?

I find it more appaling how she was tricked to leave the country, the USCIS ows its citizens if not the immigrants to spell out its decision without trickery

Edited April 12, 2007 by ivona

[homesick_american 1]

I find it more appaling how she was tricked to leave the country, the USCIS ows its citizens if not the immigrants to spell out its decision without trickery

I don't see that she was tricked at all. How was she tricked?

[*JG* 2]

I find it more appaling how she was tricked to leave the country, the USCIS ows its citizens if not the immigrants to spell out its decision without trickery

I don't see that she was tricked at all. How was she tricked?

I agree. It's called a "Fiance" visa for a reason. The rules of it are clearly stated in everything I have read on the subject.

And, how many people on here, even today, still say they are going to get married in their fiance's home country before they come to the US? They knew the rules before they started the journey. They decided for the quickest visa they could get. Then, they decide, oh, I really wanted the other.

If you want to get married in your SO's home country first, then go for the K-3. Plain and simple.

[homesick_american 1]

I find it more appaling how she was tricked to leave the country, the USCIS ows its citizens if not the immigrants to spell out its decision without trickery

I don't see that she was tricked at all. How was she tricked?

I agree. It's called a "Fiance" visa for a reason. The rules of it are clearly stated in everything I have read on the subject.

And, how many people on here, even today, still say they are going to get married in their fiance's home country before they come to the US? They knew the rules before they started the journey. They decided for the quickest visa they could get. Then, they decide, oh, I really wanted the other.

If you want to get married in your SO's home country first, then go for the K-3. Plain and simple.

I agree. Well said!

[Caladan 19]

I find it more appaling how she was tricked to leave the country, the USCIS ows its citizens if not the immigrants to spell out its decision without trickery

I don't see that she was tricked at all. How was she tricked?

She was told "Your K-3 is waiting in Japan, go for the interview!" and when they got her there said "Oh, you now have a ten-year ban on re-entry. Sucker."

[mybackpages 0]

I can understand the responsibility of misunderstanding the law or disregarding the law falls sqarely on the couple. What I have a problem with is how the USCIS defines fraud. It seems the strict legal interpretation does not account for extenuating circumstances or genuine human mistakes. Surely this couple's "fraud" is not what the intention of the law hoped to target.