Lawyer Suggestions for (we think) a complicated case

[L&C ARG 0]

Hello All,

 

What a great community. My girlfriend and I live in Argentina (I'm a US citizen, she's an Argentine citizen) and are planning on getting married in the short future. In the meantime we are both also applying to graduate school in the U.S. (I'm already admitted, her application is pending and the chances of being admitted are not high).

We are thus deciding how to proceed so that whatever the case is, we can both be in the U.S. as of September. 

 

Our big question revolves around whether we should start a K-1 process before she hears back from her program (which would give her a J1). What we don't have clarity on is what happens if she is admitted and we have a K1 in process. Does that supersede the J1? And if that's the case, what happens if the K1 isn't approved by september and she can't go to school?

 

Anyway, our thinking is that this needs some help from a lawyer. Anyone have good contacts that could help us out with this? I saw the VJ partners, but there don't seem to be many verified opinions there (nor links to their pages).

 

Any advice more than welcome! 

[igoyougoduke 1,614]

J1 is a non immigrant visa while K1 is a immigrant visa. Applying J1 after marriage will most likely not be approved. Apply J1 with the intent of marriage means you are applying for non immigrant status even though the she has immigrant intent due to marriage.  The fact she is an intended immigrant means you should proceed with K1 or CR1

[Boiler 43,790]

J1 is a sort of work visa and September would be pushing it, and it requires you to marry file to adjust including getting EAD, EAD takes about 6 months so you meed a Plan B, September 2001 would work, marry file for a CR1.

[Marieke H 2,343]

I don't think you need a lawyer, if you do some research and decide what works best for you. Lawyers can't speed up the process. 

Your case is not complicated, but your timeline is unrealistic. It's unlikely that she would have a K1 visa in her passport by September if you apply now.

And while you are still considering options, please consider the CR1; it would give the freedom to work and travel as soon as she immigrates.

Edited January 26, 2020 by Marieke H
Typo

[L&C ARG 0]

Thanks all, super helpful. A couple of additional questions.

 

1) We prefer to go with K1 vs IRI1 because of timing. Even if she can't work in the U.S., we prefer to be together. And I understand the IR1 does take 4-5 months longer... 

 

2) If she gets a J1 through this grad school application, would it be incompatible with a K1. In other words, can she enter on a J1 while a K1 is processing? I don't see why not...

 

3) (maybe a dumb question) but we can apply for a fiancee visa even though we both live outside the U.S. right? It's not that I (as the U.S. citizen) have to live in the U.S. at the moment. 

Thanks!

 

[Boiler 43,790]

2. Well if she got a J1 and you filed the K1 now she gets here on her J and then needs to go back to get her K and enters not being able to go back to her J work.

 

3. Just need to be domiciled in the US.

[belinda63 2,981]

She can't apply for a student visa if she intends to immigrate to the US. She is saying she will come and attend school then return to her home country which is not her intent. Also how is she going to pay international tuition, room, board, etc. 

The CR1 is the best visa as she can work as soon as she arrives in the US. Well worth the extra 3-4 months of waiting. With the K-1 she won't be able to work or leave the US for 3-6 months (she can leave but she can't come back without a new visa) and it can take a year or so for her to get her green card.

You need to accept that you will be spending time apart and make the best decision for both of you as to how to proceed. 

[JFH 12,189]

3 hours ago, Chris_Lucia said:

Thanks all, super helpful. A couple of additional questions.

 

1) We prefer to go with K1 vs IRI1 because of timing. Even if she can't work in the U.S., we prefer to be together. And I understand the IR1 does take 4-5 months longer... 

 

 

 

But you are already together. Get married ASAP and start filing. The sooner you file, the sooner you’re done. She won’t need the student visa with the CR-1 as she will be a GC holder from the moment she arrives. Even if you go for a K-1 you are going to be apart if your school starts in the fall. 
 

The few months apart won’t kill you. We have all gone through a period apart - some of us even longer than a few months - and we have all lived to tell the tale. If you’re looking at grad school opportunities I am assuming she’s a very educated and talented woman. Not being able to work or study for 6 months would drive me insane. I didn’t spend 7 years at university earning 2 degrees to not be able to work for 6 months. Not to mention the loss of income. You’re thinking with your heart, not your head. 

[Hank_ 9,173]

15 hours ago, Donald120383 said:

J1 is a non immigrant visa while K1 is a immigrant visa. Applying J1 after marriage will most likely not be approved. Apply J1 with the intent of marriage means you are applying for non immigrant status even though the she has immigrant intent due to marriage.  The fact she is an intended immigrant means you should proceed with K1 or CR1

Both are non-immigrant visas.    Difference is that the K-1 has immigration intent .. IF certain conditions are met

[African Zealot 1,453]

10 hours ago, belinda63 said:

She can't apply for a student visa if she intends to immigrate to the US. She is saying she will come and attend school then return to her home country which is not her intent.

 

You need to accept that you will be spending time apart and make the best decision for both of you as to how to proceed. 

That is not correct. You can apply for a nonimmigrant visa while you have a K1 petition pending and many people have successfully applied for nonimmigrant visas even with immigrant petitions pending.

 

The onus is on you however to show that your immigrant intent is only if you’re approved for the K visa, ie you have no plans to immigrate on the J visa. Of course you will be scrutinized more closely than others.

Edited January 27, 2020 by Ray.Bonaquist

[B&C2017 123]

20 hours ago, Chris_Lucia said:

In the meantime we are both also applying to graduate school in the U.S. (I'm already admitted, her application is pending and the chances of being admitted are not high).

........

 

And if that's the case, what happens if the K1 isn't approved by september and she can't go to school?

 

As far as I know she will not only be not able to work on a K1, but also NOT be able to go to school until the AOS is filed and the EAD which you fill with it is approved.

From what I read here, it this takes around 6 months to get the EAD approved.

• Going the K1 route and given the time needed or the K1 process, getting married and the filing for AOS/EAD/AP (and waiting for the EAD to be approved), it'd give it at least 14 months.
• With the CR1 might take you around 12 - 18 months, but she'd be able to work, travel and go to school right after entry and could start school in Sept. 2021 very likely.
• The J1 would allow her to study, but to have immigrant intent when applying for a J1 non-immigrant visa sounds a lot like "finding whatever way it takes to go to the US"  to me. 

As others already said - it's hard to be separate from each other. Why don't y'all get married in Argentina, apply for the CR1 immediately, both work and live in Argentina during the time it takes to process her visa and save up some money (for a nice house in the US or a unforgetable honeymoon 😊🤷‍♀️)?

 

Since you both live in Argentina, also don't forget that whatever route you'll go (except J1), you as the USC finacée / husband will have to be able to show domicile in the US or the intent to establish such as soon as she enters the country . You'll also have to be in a good financial situation to show that you can sponser your fiancée / wife or have a joint sponsor to do so. Note: Your argentinian salary does not count as income!

I'd go the CR1 route if I were you. Less stress on the relationship (she can't travel outside the US, work or go to school with the K1 which can be hard on one) and the right way to do it without performing borderline "illegal" actions (J1 to more or less immigrate).
 

[L&C ARG 0]

This is all super helpful but just want to be clear that the J1 is not intended as a way to get to the U.S. My fiancee wants to study in the U.S., and has this program she's really excited about. The thing is that by pure coincidence it aligns with when we want to get married (i.e. we got engaged and applied to this program basically at the same time, but for totally different reasons). 

 

So there's an "intent" to do this program as well as an "intent" to get married and live in the U.S....

[B&C2017 123]

7 minutes ago, Chris_Lucia said:

This is all super helpful but just want to be clear that the J1 is not intended as a way to get to the U.S. My fiancee wants to study in the U.S., and has this program she's really excited about. The thing is that by pure coincidence it aligns with when we want to get married (i.e. we got engaged and applied to this program basically at the same time, but for totally different reasons). 

 

So there's an "intent" to do this program as well as an "intent" to get married and live in the U.S....

I believe you - just wanted to mention what it might sound like to an outstanding person.

As I said, I think you can't go to school with a K1 until you have the EAD. I'd therefore really just get married in Argentina and go the CR1 route. The K1 (and AOS/EAD/AP) won't be processed until school starts in September 2020, is more expensive than the CR1 and takes about the same time to be able to "live" in the US. Sure, you might be able to enter earlier as with an CR1, but you won't be able to do anything really. So unless she's a huge fan of Netflix shows, the K1 route does sound like a pain in the butt  🙂

Edited January 27, 2020 by B&C2017

[Dashinka 23,397]

18 hours ago, Chris_Lucia said:

Thanks all, super helpful. A couple of additional questions.

 

1) We prefer to go with K1 vs IRI1 because of timing. Even if she can't work in the U.S., we prefer to be together. And I understand the IR1 does take 4-5 months longer... 

 

2) If she gets a J1 through this grad school application, would it be incompatible with a K1. In other words, can she enter on a J1 while a K1 is processing? I don't see why not...

 

3) (maybe a dumb question) but we can apply for a fiancee visa even though we both live outside the U.S. right? It's not that I (as the U.S. citizen) have to live in the U.S. at the moment. 

Thanks!

 

One question I have, after grad school, where do you intend to live, meaning what country?

Edited January 27, 2020 by Bill & Katya

[L&C ARG 0]

Good question (and thanks all again for the help!). Unfortunately it is unclear. Could be the U.S. as much as it could be somewhere else (50-50 today).