Complex K1 Issue - Need support

[USandRussian 0]

8 Years ago my wife came to America on a Student Visa to attend college. During her first visit we started dating and became very close. I had just finished going through a difficult relationship and was not yet ready for a commitment so we ended up breaking up, although we still kept in touch as we cared for one another.

After we broke up my wife went back home to Russia each summer over the next several summers. Each time she re entered the United States it was on a student visa as she was still attending college. Approximately 2 years later she became engaged to another man (also a US citizen) and left again for the summer back to her family in Russia. This time when she returned she applied for and received a K-1 Fiancée visa from the man that she was engaged to.

During this time my wife and I always remained in touch even though she had moved to a different state. After she returned to the US on the Fiancée visa we both came to realize that our love for each other had never left and she did not marry the man that she had gotten engaged to, but instead her and I married (while she was in the US visa on a K-1 from her former Fiancé).

We married in April of 2002. Shortly after that the US immigration Department was in the process of a radical transformation resulting from the newly formed (at the time) Homeland Security department. When we attempted to change her status we realized that she would be facing a 10 year bar to re entry and would not be eligible for a change of status to make her a legal alien.

My wife has always entered the country legally and done everything by the book. This legal loophole has turned our lives upside down because of a technicality in the law. I could have married her at any time during her Student Visa visits without issue. We also could have gone back to Russia and adjusted status directly after getting married had we known the time limits, again without issue. We chose to get married because we loved each other and yet our family is being punished because the current legislation doesn’t make any sense.

We have received the support of our local congress person to help get this amended. What we are currently looking for is to put together a list of others that have been affected by this. We need to be able to show congress and the senate that this flaw in our immigration law is affecting others aside from just us. If are dealing with, or have dealt with a similar issue please e-mail us at helpimmigration@hotmail.com or respond on this forum

Thank You,

Ken

[pushbrk 12,149]

our family is being punished because the current legislation doesn’t make any sense.

You're in the fix your in, not because the legislation doesn't make sense but because your wife didn't follow the law. She had a visa that allowed her to come to the USA and marry that visa's petitioner within 90 days, or leave the USA. She chose to stay beyond the granted 90 days, years beyond the granted stay.

Those of us familiar with the K1 visa process, have no problem making sense of the conditions that apply to the visa.

[belinda63 2,981]

So for the past six years she has been here illegally? Big mess, the law is the law whether you agree with it or not.

[ladybee 0]

oh dear she is in big trouble

[spookyturtle 9,465]

I believe she may be eligible for a waiver. Her current overstay will bar her for 10 years. She would have to leave the country and file a waiver at the US consulate in Russia. She cannot adjust her status while in the US. The waiver must prove extreme hardship to you, the US citizen if she is not allowed to return to the US. You need to talk to a good lawyer who has extensive experience with foreign filed waviers. Check out Laurel Scott at http://visacentral.net/ or Heather Poole at http://www.humanrightsattorney.com/ Both are top notch. Also, http://immigrate2us.net/ is the best site on the internet for waiver information. Good luck ad keep us posted.

Edited September 11, 2008 by spookyturtle

[USandRussian 0]

Thank you all for the quick response. First of all, we do have a top notch immigration attorney, he is the former president of the AILA (American Immigration Lawyers Association) Jimmy Wu. Secondly we were within the time frame not to be dealing with the bar to re-entry when we were married. My wife and I sought legal council from numerous immigration attorneys shortly after marriage and none of the attorneys had experienced this situation (clearly we were seeking immigration council in the wrong places).

Currently we have received the support of our local congressman to either amend current legislation, or to put forth a change in the comprehensive immigration reform. What we are really looking for is to find couples, attorneys, or anyone that has dealt with this issue in the past. We are covering all legal expenses on this and we are looking for others in our situation. The hardship scenario has been evaluated at length, and proper reform to address the issue is really the best solution.

[spookyturtle 9,465]

You will probably wait a long time for current legislation to be amended, years for sure. You are hoping for a solution that may or may not happen. Look into the waiver. And your wife is subject to the ban as soon as she leaves the US, which she must do for the waiver. She has been unlawfully present here since her I-94 for her K-1 visa expired, approximately six years ago. She cannot adjust status. Talk to one of the two lawyers in the link above.

[bakofoil 27]

I sympathise with your personal situation but there is a good reason why K1 visa beneficiaries are not legally allowed to marry anyone but the petitioner.

[spookyturtle 9,465]

USandRussian said in the initial post:"We married in April of 2002. Shortly after that the US immigration Department was in the process of a radical transformation resulting from the newly formed (at the time) Homeland Security department. When we attempted to change her status we realized that she would be facing a 10 year bar to re entry and would not be eligible for a change of status to make her a legal alien."

Then in post #6:"Secondly we were within the time frame not to be dealing with the bar to re-entry when we were married." But it doesn't matter if she was not within the time frame for a bar when you were married. She violated the terms of the K-1 by marrying you and has stayed illegally since then. The law does not allow her to adjust status. She is illegally present. The only way to for her to become legal with the law as it stands today is with a waiver.

There was no loophole in the law. The law was quite clear and simple. It was violated. The law also provides an opportunity to fix the violation. If an immigration bill ever does pass, there is no guarantee that all classes of violations will be forgiven. Your trying to get a law changed that applies to people in your situation, there aren't many.

And for choice of a lawyer, you need one that has experience with your type of situation. It appears that Jimmy Wu specializes in corporate immigration. Immigration law is federal, you can use a lawyer who is licensed in any state.

[pushbrk 12,149]

USandRussian said in the initial post:"We married in April of 2002. Shortly after that the US immigration Department was in the process of a radical transformation resulting from the newly formed (at the time) Homeland Security department. When we attempted to change her status we realized that she would be facing a 10 year bar to re entry and would not be eligible for a change of status to make her a legal alien."

Then in post #6:"Secondly we were within the time frame not to be dealing with the bar to re-entry when we were married." But it doesn't matter if she was not within the time frame for a bar when you were married. She violated the terms of the K-1 by marrying you and has stayed illegally since then. The law does not allow her to adjust status. She is illegally present. The only way to for her to become legal with the law as it stands today is with a waiver.

There was no loophole in the law. The law was quite clear and simple. It was violated. The law also provides an opportunity to fix the violation. If an immigration bill ever does pass, there is no guarantee that all classes of violations will be forgiven. Your trying to get a law changed that applies to people in your situation, there aren't many.

And for choice of a lawyer, you need one that has experience with your type of situation. It appears that Jimmy Wu specializes in corporate immigration. Immigration law is federal, you can use a lawyer who is licensed in any state.

The people in the same situation would be people who broke the same law. Good luck finding some that want to come forth and put their names on some list.

[pushbrk 12,149]

She violated the terms of the K-1 by marrying you and has stayed illegally since then. The law does not allow her to adjust status. She is illegally present. The only way to for her to become legal with the law as it stands today is with a waiver.

The rest of your post is on point but the woman violated no law by marrying a US Citizen. The law was violated when she didn't leave the USA before her 90 days expired. If she had done so, and gone through a spouse visa process, all would be well. Marrying somebody besides the petitioner is allowed. Staying is not.

[spookyturtle 9,465]

She violated the terms of the K-1 by marrying you and has stayed illegally since then. The law does not allow her to adjust status. She is illegally present. The only way to for her to become legal with the law as it stands today is with a waiver.

The rest of your post is on point but the woman violated no law by marrying a US Citizen. The law was violated when she didn't leave the USA before her 90 days expired. If she had done so, and gone through a spouse visa process, all would be well. Marrying somebody besides the petitioner is allowed. Staying is not.

Correct, but I said she violated the terms of her K-1 visa by not marrying the petitioner, not the law.

[bakofoil 27]

I think I made the error in saying that that beneficiaries are 'not legally allowed' to marry anyone but the petitioner.

I'll rephrase it and say that to receive the benefits associated with the K1 visa, the beneficiary should marry the petitioner.

[spookyturtle 9,465]

She violated the terms of the K-1 by marrying you and has stayed illegally since then. The law does not allow her to adjust status. She is illegally present. The only way to for her to become legal with the law as it stands today is with a waiver.

The rest of your post is on point but the woman violated no law by marrying a US Citizen. The law was violated when she didn't leave the USA before her 90 days expired. If she had done so, and gone through a spouse visa process, all would be well. Marrying somebody besides the petitioner is allowed. Staying is not.

Correct, but I said she violated the terms of her K-1 visa by not marrying the petitioner, not the law.

I was unable to edit my above reply. The USCIS site states the following concerning the K-1 visa:

If the marriage does not take place within 90 days or your fiancé(e) marries someone other than you (the U.S. citizen filing USCIS Form I-129F - Petition for Alien Fiancé), your fiancé(e) will be required to leave the United States.

So I guess one could argue that technically it is not a violation of the visa terms to marry someone else. The consequence is that that you must leave the US, a somewhat vague area in the law with not much detail. How soon must one leave the US, what happens if they don't leave, etc. Marrying someone else is not using the visa for the purpose for which it was issued. Against the law, no. But isn't it really against the terms of issue? What do you think?

[andy desai 3]

if i was you, i would start thinking in staying in Russia or any other country like dubai.. at the end of the day... its all about settling down in life.. so try other alternatives as well... US economy is not the best anyways right now..

As far as the law goes.. it seems that you guys have violated the K1 terms without intent.. but the fact is the law has been violated. instead of wasting time and fighting the system... i would actually rethink about reverse immigration.. where you can stay happily... if you have education from United States probably it may be valued a lot more elsewhere in the world....they definately recognize american education in Dubai which is growing at a rapid pace.. you are treated with respect since you are an american citizen and you are bringing in knowledge.. so if you are educated and the main idea is coming up with a family why waste time dealing with law.. just settle down in dubai or moscow...