reasonable86

Wow this is quite the hypo. So just to clarify before I take a crack at your problem: you didn't file anything with USCIS after you're marriage? Meaning in the eyes of the US gov't you're still single? And what type of student visa are you here under? (F, J, etc.)

And to think VJ users advised me against marrying my fiancee this summer in Korea opting for the I-130 route b/c chances of a longer wait...maybe we would've drawn CSC that time..hah. But if the doomsday predictions I've been seeing today come to fruition, then maybe the K3 wouldn't have been such a bad idea.

Where are you getting this information? It is simply wrong.

Yes, that's the only thing I take issue with. While I appreciate the effort it must take to draw these statistical conclusions, following them up with web address sources of where the premise info is coming from would silence the dissent as well as confirm my (according the #s out there) upcoming depression

I can't think of any obvious reason why what happened in Boston should affect the approval rate of K1s.

If you get married in Korea, you'll have to withdraw the i-129f petition and file for an i-130. You won't get the money you spent for the i-129f refunded, and will have to start back all over with the new petition (that also means you'll be back at the end of the line, time-wise). You might be asked why you decided to switch during the interview, but that's not a big deal.

Yea that seems accurate, I'd hate to have a pending F-1 right now though!

I had similar thoughts about the visa (kinda already accepted the lost funds..hah) Thanks so much!

You can't get married in Korea and then enter the US on a K-1 visa. You have to enter the US on the K-1 and marry within 90 days. You'd have to refile for a IR-1/CR-1 if you get married, which will put you to the back of the line. Oh, and withdraw your I-129F.

Okay, well its just an NOA1 at the moment, not a K1. I realize that legally you can't get married and then enter on the fiancé visa because the former status would no longer apply, and I know about the required procedures to obtain a green card abroad after marriage.

I was just wondering whether it was in fact possible after an I-129F was filed. But it sounds like you're saying, that as long as a formal revocation is made then everything should be fine! (assuming all other standard procedures are complied with)

This is really a two part question. This mainly goes out to any long time members who may have been around the K1 scene back in 2001, nevertheless, does anyone think or have any reason to believe that the Boston attacks will have any effect (besides passage of a new law) on the processing times of K visa petitions already filed?

And (in case you're wondering about part 2 ) are there any risks, concerns, or things I should know if we decide (which we kinda have) to get married in Korea this summer instead? I lived over there for a year and the embassy is usually very prompt and makes the process very easy from what I've been told, but will the previous I-129F petition subject to us to any other scrutiny, either at the embassy or at the POE?? Thanks for all the help (most helpful message board I've ever seen)

Reasonable86 with all respect everything you said it does not make sense and most of you said there is no provision in the Immigration Law. She clearly stated she got married and never aplied for AOS it means she cant file form I-130 and I-485 once she does not live with her husband anymore. She can file I-360 based in domestic violence.It does not matter if the alien got marriage and after 1 week,10 days or 1month was battered because the vawa law allows her to file I-360 ANYTIME after the abuse if the alien is married or did not divorced more than 2 years before filing Vawa.It won't raise any red flags filing I-360 along with I-485 right after the abuse suffered. She can file I-360 alone or concurrently with form I-485. It doesn't matter how long he was incarcerated or if he was charged with misdemeanor or not. OF COURSE it helps having a restraining order and police report but it's not mandatory to have police report to file Vawa.

INA 216(a)(4)© -Conditional Permanent Resident Status for Certain Alien Spouses and Sons and Daughters.

See also: INA 245(a)- Adjustment of status of nonimmigrant to that of person admitted for permanent residence

INA 245(d)- This is the problem provision...(this is why I was cautious as to the order in which the documents were to be filed)

- This is where I strongly disagree with you. concurrent filing would result in an attempted change of status, while awaiting an approval on a VAWA petition. But the provisions she falls under which would nevertheless grant her LPR status requires an approved VAWA petition[iNA 245(a)]. Concurrent, to me doesn't conform with requirements of the statute.

INA 101(a)(51)- Who qualifies for VAWA petition

INA 204(a)(1)(A)(iii)(I-II)- Procedure for granting immigrant status as an immediate relative spouse where there has been abuse

INA 201(b)(2)(A)(i)- Who qualifies as an immediate relative

INA 204(a)(1)(K)- Employment upon approval of VAWA

No provision in immigration law? Really?

You're right, the incarceration times are irrelevant for the essentials, but could be helpful in bolstering the "extreme hardship" burden while the abuse was taking place. I realize its not mandatory to have those things...thats why its called "evidentiary support". Did I have to make a copy of my Korean visa to send to USCIS when I filed my I-129F? No b/c I had already established she had visited me in the US, but I still wanted to strengthen my case by letting them know I lived in Korea for year.

You're right on about the never applying for the AOS and not being able to file 130/485---> but sorry that WASNT clear to me which is why I asked.

The I-360 is permissible to file at any time pursuant to 216 of the INA as well of as the MFA (Marriage Fraud Amendments). I never meant to suggest the contrary. You have to understand the cunundrum created by filing a VAWA w/ a !-485. How can you be (or why would you want to be) a conditional PR where your LPR can be terminated upon the dissolution of the marriage while also having an approved VAWA? This is why the VAWA approval comes first and is required by stature. I was mostly speaking as a practical matter filing documents together (which suggest equivocal intent) so soon after the marriage and that "raising flags", but in no way was I suggesting that she was precluded from filing anything. At our clinic last year, we had a client that filed a change of address (pretty basic right?) but since it was only three months after the marriage they ICE was all over her for the next month investigating the legitimacy of the marriage.

Immigration (especially the INA) is like a giant flow chart from hell, and there are innumerable paths and rabbit holes that can be taken (main reason why reform is so badly needed). As as student, of course I'll probably go down more of them than is required, but at this point it's better to be through. I don't know all the form #s or practically what has been acceptable. But I CAN promise you this, the instructions for filling the forms are grossly inadequate in informing you as to what is actually required (the I-134-affidavit for support is the best example) The INA is what the BIA judges apply when adjudicating cases, not screenshots from the USCIS website.

Anyways, thanks for reminding me why I dislike posting on message boards...Everyone's a critic and it always becomes a debate.

I am so sorry to hear about your difficult plight. You have quite the complex scenario, so I can easily see how making the best decision at this juncture might seem like an impossible decision.

Okay, first I need to set out that this advice in no way should be exclusively relied upon, nor should be substituted for consulting with an attorney. I am only a law student and at this point, my advice is no more valuable than anyone else. In fact if any attny's out there think they should report me, then go to hell, I'm just trying to help another human being. Anyways...immigration is one of my intended practice areas so here goes...With the facts you have provided, it's impossible to advise you objectively concerning your next course of action. More information is needed such as:

Mentioning filing an AOS...sounds like you never adjusted your F-1. So just to clarify, did you file an I-485 to adjust your F-1 nonimmigrant status to that of a lawful permanent resident(LPR)?

You mentioned failing to file an I-130, does that mean your child was not born in the US?

If the baby was born outside the country, is the father listed on the child's birth certificate?

When were you admitted to the country with the F-1?

When was the protection order filed?

How long was the period of incarceration and what were the dates?

I can already tell you that filing an I-130 with the !-485 is completely reasonable and I would not think that would raise any flags. On the other hand utilizing the extreme hardship exception from VAWA filed simultaneously with the I-485 will immediately set off alarms since all of this is occurring so soon after the marriage occurred. You'll thus be defending the legitimacy of the marriage when entered into, while at the same time trying to get out of the marriage to protect yourself and your child. Nevertheless, as I see it, satisfying the VAWA exception is your only option since you generally have no more than six months to file an AOS after the marriage and due to the two year conditional LPR status attached to newlywed aliens. If the marriage terminates prior to the satisfaction of the two year requirement, then so does your LPR status. (unless VAWA relieves removal...[§216©(3)(D)]

If the child has not been legitimated or was not born in the US obtaining jus soli citizenship then your status will be conferred onto your child [iNA§216(a)(1), 216(g)(2)] This is why your status needs to be determined first.

If you'd rather send me a message with the info since it's a little more private then feel free. Hopefully I can give you clearer advise as to what exactly lies ahead if you wish to stay in the US. If you've resolved the issue or obtained a more qualified opinion then fantastic, just wanted to help as best I could. Take care.