Should we do K3 or K1?

[dnoblett]

Let's get back to basics. Everyone is concentrating on getting her a visa. She doesn't need a visa, she has one, she is already here. It basically comes down to a matter of intent. If she came here on a J visa with the intent to circumvent the immigration process and get married then it is visa fraud. Obviously that is not the case. She came here to go to school. If while in the course of getting her degree she met the man of her dreams, fell madly in love and decided to get married then that is perfectly legal. You can get married, file an I-130 and I-485 to adjust status. The catch is she won't be able to leave the country until her petition is approved.

The only other issue is IF the J-Visa has the 2 year home residency requirement, if this is the case a waiver will be needed for that.

 

http://travel.state.gov/visa/temp/types/types_1267.html#12

 

Waiver of the J Visa Two-Year Foreign Residence Requirement, 212(e)

 

A No-Objection Statement from China will be needed if J-Visa 2 year rule applies.

 

No Objection Statements

 

Q. How do I request a "no objection" statement and where do I send it?

A. You should contact the consular section of your embassy in Washington, D.C., and request a "no objection" statement to be forwarded to the Department of State on your behalf. The Embassy must forward the "no objection" statement directly to the Waiver Review Division at the Department of State.

 

Q. When in the application process should I request a "no objection" statement?

A. Once you have your case number.

 

Q. What if I cannot get a "no objection" statement from my home country?

A. You may apply for a waiver in any of the remaining statutory bases that applies to your situation. If none of the waiver bases applies to you, you must return home to fulfill the two-year foreign residence requirement.

http://travel.state.gov/pdf/J-1%20Waiver%20FAQs.pdf Edited June 29, 2009 by dnoblett (see edit history)

[samsong]

According to the OP her intent is to go back to China for work as of now. Her intent is not to marry off the student visa.

[Stepbrow]

Let's get back to basics. Everyone is concentrating on getting her a visa. She doesn't need a visa, she has one, she is already here. It basically comes down to a matter of intent. If she came here on a J visa with the intent to circumvent the immigration process and get married then it is visa fraud. Obviously that is not the case. She came here to go to school. If while in the course of getting her degree she met the man of her dreams, fell madly in love and decided to get married then that is perfectly legal. You can get married, file an I-130 and I-485 to adjust status. The catch is she won't be able to leave the country until her petition is approved.

 

I totally agree with Carl. Get married and keep her here. Don't let her go back to China until she has her green card. If you do let her go back to CHina before then, she will have to go through the Guangzhou Consulate, and that is a crap shoot.

[warpedbored]

According to the OP her intent is to go back to China for work as of now. Her intent is not to marry off the student visa.

I realized that but I don't think the OP realized that this is a viable option.

 

It does appear that the J visa could create a snag. I wonder how the newer F visa changes thing.

[samsong]

According to the OP her intent is to go back to China for work as of now. Her intent is not to marry off the student visa.

I realized that but I don't think the OP realized that this is a viable option.

 

It does appear that the J visa could create a snag. I wonder how the newer F visa changes thing.

It sounds risky to me ,Carl. "Better safe than sorry" I always say. But it's good to point it out, sure, but I don't know how viable it really is. It's do-able but short lived and ruins ones chance forever in getting into the country.

It depends on the couple involved, if they want to take such a risky chance or not. I have always heard that the USCIS frowns heavily upon those situations, although some get away with it, it's few and far between. It shouldn't be allowed at all by law. It's taking a big chance. I would never suggest doing it. Technically, it's breaking the law.

[warpedbored]

According to the OP her intent is to go back to China for work as of now. Her intent is not to marry off the student visa.

I realized that but I don't think the OP realized that this is a viable option.

 

It does appear that the J visa could create a snag. I wonder how the newer F visa changes thing.

It sounds risky to me ,Carl. "Better safe than sorry" I always say. But it's good to point it out, sure, but I don't know how viable it really is. It's do-able but short lived and ruins ones chance forever in getting into the country.

It depends on the couple involved, if they want to take such a risky chance or not. I have always heard that the USCIS frowns heavily upon those situations, although some get away with it, it's few and far between. It shouldn't be allowed at all by law. It's taking a big chance. I would never suggest doing it. Technically, it's breaking the law.

It's not breaking the law. As I stated earlier it is a matter of intent. Her school records alone would prove that she came here to study not get married. If she came here on a tourist visa and got married a week later I could see how the USCIS would doubt her intent. In this case I seriously doubt they would have any problems.

[Randy W]

The J visa blocks the green card until the 2 year residency requirement is dealt with, whether she's here or there.

[samsong]

Well, back to the title question of the thread, 'Should we do K3 or K1? And straight out I say K1. Do K1 Student T. That is what I will suggest. Good Luck!

[warpedbored]

It appears that a K-visa may not be an option either.

2. If you are subject, what does that mean?

 

If you are subject to the two-year foreign residence requirement, you may not change your status to that of H, L, or K, or to immigrant or legal permanent status until you have fulfilled the two-year foreign residence requirement by going back to your home country or receiving a waiver of this requirement.

[samsong]

Student T mentioned filing the waiver to reduce the time and then filing for one of the K visas. He's asking which K visa to file for. Either one, I originally said but thinking about it, the K1 might be a better option, Might- I say. It's totally up to them and I wish them all the luck in the process.

[Student T]

Hi everyone,

Thank you for the responses so far. Just to clear up any confusion, she entered the US for a two month summer program on a J1 visa with the restriction and then went home after completion. Subsequently she applied and was accepted to grad school here on a F1 visa, which is where we met.

 

I have checked with two lawyers and they both say that the J1 visa's restriction is binding even though she is now on a F1.

 

We have filed the no objection statement with the Chinese consulate as well as the waiver application which is pending. Her F1 Visa OPT (optional practical training) allows her to stay until spring of 2010, so she could just stay here and wait for the waiver and then we could do AOS.

 

My original question was based on her intent to return to China for a few months while the economy recovers, and come back on a K1/K3. I just wasn't sure which one is better because it doesn't matter to us when we get married. Also We already live together in the US so I am not too worried about proof of relationship, but maybe it will help the processing time.

[Randy W]

Hi everyone,

Thank you for the responses so far. Just to clear up any confusion, she entered the US for a two month summer program on a J1 visa with the restriction and then went home after completion. Subsequently she applied and was accepted to grad school here on a F1 visa, which is where we met.

 

I have checked with two lawyers and they both say that the J1 visa's restriction is binding even though she is now on a F1.

 

We have filed the no objection statement with the Chinese consulate as well as the waiver application which is pending. Her F1 Visa OPT (optional practical training) allows her to stay until spring of 2010, so she could just stay here and wait for the waiver and then we could do AOS.

 

My original question was based on her intent to return to China for a few months while the economy recovers, and come back on a K1/K3. I just wasn't sure which one is better because it doesn't matter to us when we get married. Also We already live together in the US so I am not too worried about proof of relationship, but maybe it will help the processing time.

 

 

Seems to me that what you need to know is how the J-restriction affects your visa petition, both for the K-1 and CR-1/K-3. If the USCIS would simply deny the petition if the J-restriction is still active, there wouldn't seem to be much point in filing it.

 

But would they let a K-1 go through since it's a non-immigrant visa?

 

Find a good immigration attorney, and a simple consultation should tell you how to proceed.

 

I would be VERY cautious about letting her leave the country, until you know how she'll get back in.

 

There are a lot of J1 questions here if you want to wade through it http://www.valuemd.com/archive/index.php/f-62.html

http://www.mdgreencard.com/

 

 

Stuart I. Folinsky, J.D. Attorney At Law

[whome?]

Hi everyone,

Thank you for the responses so far. Just to clear up any confusion, she entered the US for a two month summer program on a J1 visa with the restriction and then went home after completion. Subsequently she applied and was accepted to grad school here on a F1 visa, which is where we met.

 

I have checked with two lawyers and they both say that the J1 visa's restriction is binding even though she is now on a F1.

 

We have filed the no objection statement with the Chinese consulate as well as the waiver application which is pending. Her F1 Visa OPT (optional practical training) allows her to stay until spring of 2010, so she could just stay here and wait for the waiver and then we could do AOS.

 

My original question was based on her intent to return to China for a few months while the economy recovers, and come back on a K1/K3. I just wasn't sure which one is better because it doesn't matter to us when we get married. Also We already live together in the US so I am not too worried about proof of relationship, but maybe it will help the processing time.

 

 

Seems to me that what you need to know is how the J-restriction affects your visa petition, both for the K-1 and CR-1/K-3. If the USCIS would simply deny the petition if the J-restriction is still active, there wouldn't seem to be much point in filing it.

 

But would they let a K-1 go through since it's a non-immigrant visa?

 

Find a good immigration attorney, and a simple consultation should tell you how to proceed.

 

I would be VERY cautious about letting her leave the country, until you know how she'll get back in.

 

There are a lot of J1 questions here if you want to wade through it http://www.valuemd.com/archive/index.php/f-62.html

http://www.mdgreencard.com/

 

 

Stuart I. Folinsky, J.D. Attorney At Law

Randy is correct here. If she goes back to China do not think it will be for a few months and then she can return here with a K Visa. You should be prepared to either go the China with her or a separation of a year (or longer if you do not get the J visa wavier).

[whome?]

According to the OP her intent is to go back to China for work as of now. Her intent is not to marry off the student visa.

I realized that but I don't think the OP realized that this is a viable option.

 

It does appear that the J visa could create a snag. I wonder how the newer F visa changes thing.

While he asked a specific question we all know that all of us came here trying to figure out what is the fastest and surest way to get a residentship for our chinese loved ones. I think it is our CFL duty to point out the other options/issues/information that are available that the OP may not have known.