K1 trumps a B2??

[Lee VD]

I'm not sure if we have seen anyone in this situation but its one of the possible scenarios for us:

- Interview date July 21
- Planned US visit July 29th - Aug. 11th

Since a pink is unlikely, she will travel to the U.S. to visit with her in force B2 [understood possible POE issues, but we were ok last time].

So we have been figuring that if she does get pink, and they hold her passport, we would just postpone the visit for about a month or so for her to quit her job and get ready to move.

But I was thinking, if her passport is sent back to Shanghai in time with the K1, will they cross out the B2 or is it still valid? Can she choose which visa to enter in and enter and leave on the B2 and then come back on the K1? That would be great to get the visit in and then have her go back and take her time to clear out her life there.

Or can you only have one visa valid at a time?

Lee

[dnoblett]

The K-1 will trump the B-2 The POE can and does cancel the K-1 upon entry to the USA, once this is the case you will have 90 days to marry.

 

Note the B-2 will not prevent the cancellation of an adjustment of status case if travel before getting an AP document.

 

I see this scenario played out often on VJ for Canadian K-1 cases.

Edited July 2, 2010 by dnoblett (see edit history)

[dnoblett]

One more note, I would suspect in a case of a denied K-1, traveling to USA on the B-2 may have it's issues at the POE, more than likely they can turn back at the POE because immigrations intent is very strong due to the K-1 case, the risk of miss-use of the B-2 to immigrate is very strong.

[Sam and Fen]

Dan,

 

Would GUZ not cancel the B2 if a K1 is approved?

And if its not, would they still cancel the B2 becoz of the intent to immigrate?

[dnoblett]

Dan,

 

Would GUZ not cancel the B2 if a K1 is approved?

And if its not, would they still cancel the B2 becoz of the intent to immigrate?

Good question, but yes I would suspect this would be the case.

[bullmastiff]

I'm not sure if we have seen anyone in this situation but its one of the possible scenarios for us:

 

- Interview date July 21

- Planned US visit July 29th - Aug. 11th

 

Since a pink is unlikely, she will travel to the U.S. to visit with her in force B2 [understood possible POE issues, but we were ok last time].

 

So we have been figuring that if she does get pink, and they hold her passport, we would just postpone the visit for about a month or so for her to quit her job and get ready to move.

 

But I was thinking, if her passport is sent back to Shanghai in time with the K1, will they cross out the B2 or is it still valid? Can she choose which visa to enter in and enter and leave on the B2 and then come back on the K1? That would be great to get the visit in and then have her go back and take her time to clear out her life there.

 

Or can you only have one visa valid at a time?

 

Lee

 

 

Hi my friend ;

 

 

I am just reading your post and also your time line . It is just plain weird . Your woman has visited the US SEVERAL times . Why even bothered with K1 and all of those non sense ??? Why not just got married in the US and filed I130 and I 485 ( adj, of status ) at the same time while she was in the US ??? She needs not even have to wait in China and deals with all these BS's with the consulate and ya di ya da ya da..... In the US , you can hire top notch immigration atty to help you process all of these . and all you need to do is to show up at the AOS interview with your woman to show Mr. Immigration that your marriage is real . That's all !!! Now , it's water over the dam. Your faith will depend on the outcome of her K1 interview. Moment she showed up at the GZ consul , they will cross out her B2 .

Maybe I don't know what I'm talking about ??? that's just my opinion.

[dnoblett]

Hi my friend ;

 

 

I am just reading your post and also your time line . It is just plain weird . Your woman has visited the US SEVERAL times . Why even bothered with K1 and all of those non sense ??? Why not just got married in the US and filed I130 and I 485 ( adj, of status ) at the same time while she was in the US ??? She needs not even have to wait in China and deals with all these BS's with the consulate and ya di ya da ya da..... In the US , you can hire top notch immigration atty to help you process all of these . and all you need to do is to show up at the AOS interview with your woman to show Mr. Immigration that your marriage is real . That's all !!! Now , it's water over the dam. Your faith will depend on the outcome of her K1 interview. Moment she showed up at the GZ consul , they will cross out her B2 .

Maybe I don't know what I'm talking about ??? that's just my opinion.

It's all about INTENT, the OP is doing the right thing. USCIS can simply rule that the INTENT upon using a B-2 visa was to get around the consulate and immigrate. B-2 is not an immigrations intent visa, and outright using it with FULL intent to immigrate is considered visa fraud, and can result in a denied AOS, and worse.

 

I have seen a few denied Adjustments on VJ because the Interviewing officer was not convinced that the B-Visa holder did not have immigrations intent.

 

AOS from Work and Student visas are fine because these visas had a solid intent to Work or Study in the USA. However B-Visas are intended for visiting the USA.

 

That being said many do misuse visitors visas in this way and get away with it, but I would not want to take the risk, and loose and have a hard-and-fast ruling of misrepresentation and a lifetime bar on my loved one.

 

One case may be having issues is Smalltoe's from their time-line they adjusted from a B-2 after fiancee naturalized, the consulate may be playing games with a step-child's IR-2 visa. http://candleforlove.com/forums/index.php?showtopic=41874

[Lee VD]

The K-1 will trump the B-2 The POE can and does cancel the K-1 upon entry to the USA, once this is the case you will have 90 days to marry.

 

Good point. Even if the consulate lets it stand, the POE officer might do this.

 

It will also be interesting to see if she can visit after the interview and in a "blue" state but I think with her explanation, solid visit history, and it just being a time issue and no risk of denial we are hoping we will get away with it. She is also getting her university to prepare a letter like she does every time even though the POE officer never looked at it before. The letter is authorizing her leave to visit the U.S. and the date she is expected back at work.

 

Lee

[Lee VD]

Why even bothered with K1 and all of those non sense ??? Why not just got married in the US and filed I130 and I 485 ( adj, of status ) at the same time while she was in the US ???

 

Another reason is we have this J1 2yr HRR issue which would be caught during AOS and force her home. Many instances on VJ where people were shocked to find she/he had to be shipped back home for 2 years!

 

So since we had to wait out the time and she needed to stay employed, this was the best route, in addition to it being the most legal route!

 

Believe me, it was so tempting when on her visits they happily give her a 6 month authorized stay without her even asking!! Oh.. the temptation!

 

We also considered a 6 month US / 6 month China pattern until the 2yrs is fulfilled but she wouldn't be able to stay employed and risk losing the B2 along the way. It would also take longer to get the 2 yrs behind us.

 

Our hope is that they see the 7/31/08 J1 expiration at the 7/21/10 interview and just say "ehh... good enough". Its happened in other countries but they aren't GUZ

 

Lee

[dnoblett]

The K-1 will trump the B-2 The POE can and does cancel the K-1 upon entry to the USA, once this is the case you will have 90 days to marry.

 

Good point. Even if the consulate lets it stand, the POE officer might do this.

 

It will also be interesting to see if she can visit after the interview and in a "blue" state but I think with her explanation, solid visit history, and it just being a time issue and no risk of denial we are hoping we will get away with it. She is also getting her university to prepare a letter like she does every time even though the POE officer never looked at it before. The letter is authorizing her leave to visit the U.S. and the date she is expected back at work.

 

Lee

In the event of a blue, I would highly suspect the POE will DENY entry, they do have access to this data, and in this case a STRONG immigrations intent is demonstrated and the immigrations visa is held up for a reason ("red flag", paperwork, what ever), the POE more than likely BAR entry.

 

Having a visa is NO GUARANTEE that the POE will allow entry.

Edited July 3, 2010 by dnoblett (see edit history)

[bullmastiff]

Why even bothered with K1 and all of those non sense ??? Why not just got married in the US and filed I130 and I 485 ( adj, of status ) at the same time while she was in the US ???

 

Another reason is we have this J1 2yr HRR issue which would be caught during AOS and force her home. Many instances on VJ where people were shocked to find she/he had to be shipped back home for 2 years!

 

So since we had to wait out the time and she needed to stay employed, this was the best route, in addition to it being the most legal route!

 

Believe me, it was so tempting when on her visits they happily give her a 6 month authorized stay without her even asking!! Oh.. the temptation!

 

We also considered a 6 month US / 6 month China pattern until the 2yrs is fulfilled but she wouldn't be able to stay employed and risk losing the B2 along the way. It would also take longer to get the 2 yrs behind us.

 

Our hope is that they see the 7/31/08 J1 expiration at the 7/21/10 interview and just say "ehh... good enough". Its happened in other countries but they aren't GUZ

 

Lee

 

 

I was just reading your post again, J1 needs 2 years before being eligible for AOS or immigrant visa . Hers will not expire until Sept this year and her interview will be on July ??? Is this the reason why you would expect a denial ???

[bullmastiff]

Hi my friend ;

 

 

I am just reading your post and also your time line . It is just plain weird . Your woman has visited the US SEVERAL times . Why even bothered with K1 and all of those non sense ??? Why not just got married in the US and filed I130 and I 485 ( adj, of status ) at the same time while she was in the US ??? She needs not even have to wait in China and deals with all these BS's with the consulate and ya di ya da ya da..... In the US , you can hire top notch immigration atty to help you process all of these . and all you need to do is to show up at the AOS interview with your woman to show Mr. Immigration that your marriage is real . That's all !!! Now , it's water over the dam. Your faith will depend on the outcome of her K1 interview. Moment she showed up at the GZ consul , they will cross out her B2 .

Maybe I don't know what I'm talking about ??? that's just my opinion.

It's all about INTENT, the OP is doing the right thing. USCIS can simply rule that the INTENT upon using a B-2 visa was to get around the consulate and immigrate. B-2 is not an immigrations intent visa, and outright using it with FULL intent to immigrate is considered visa fraud, and can result in a denied AOS, and worse.

 

I have seen a few denied Adjustments on VJ because the Interviewing officer was not convinced that the B-Visa holder did not have immigrations intent.

 

AOS from Work and Student visas are fine because these visas had a solid intent to Work or Study in the USA. However B-Visas are intended for visiting the USA.

 

That being said many do misuse visitors visas in this way and get away with it, but I would not want to take the risk, and loose and have a hard-and-fast ruling of misrepresentation and a lifetime bar on my loved one.

 

One case may be having issues is Smalltoe's from their time-line they adjusted from a B-2 after fiancee naturalized, the consulate may be playing games with a step-child's IR-2 visa. http://candleforlove.com/forums/index.php?showtopic=41874

 

 

Again, I'm not a lawyer , but I think AOS is most always a better option than consular process if it's possible to do so . In the US, there are the court system that one can always appeal ,etc... many options,.... In fact , one of the biggest reason why consular process is made HARD, because this is about the only point where an our government still has control over our border . Of course, another one is POE but mostly still the control is at the Consular process.

Immgration based on family petition remains to be the biggest mean for most immigrant . Our immigration system still gives highest preference to "immediate relative " family reunion. Therefore, I disagree that B2 visa holder can't adjust status in the US if he/she is qualified for this. In extreme cases, even an alien who is on deportation proceeding still able to get a relief if she/he marries a US citizen . Again, I am not a lawyer.

 

 

J1 of course has 2 year ban from AOS or even consular process??? there are waivers for exclusion , eg. medical reason,etc.... This is where a competent immigration atty can advise. I am not sure if our friend has consulted such an expertise before proceeding to the course of action . If he did , why should he be expecting a denial instead ???

[dnoblett]

It would not be a "Denial", a Blue slip is not a denial, it can be for other reasons, like additional evidence.

 

In this case a Blue, more than likely would be an approval pending completion of the 2 year HRR requirement of the J-Visa.

 

And the foreign residency requirement would bar AOS in the USA, I-601 would be needed and would have to request a waiver and letter of no objection from China.

[Lee VD]

In the event of a blue, I would highly suspect the POE will DENY entry, they do have access to this data, and in this case a STRONG immigrations intent is demonstrated and the immigrations visa is held up for a reason ("red flag", paperwork, what ever), the POE more than likely BAR entry.

 

Having a visa is NO GUARANTEE that the POE will allow entry.

 

"Do you feel lucky??"

 

We will probably just give it a try, we have been lucky so far. The last time, she came in well after the I-129F was filed and they didn't appear to know it yet or didn't see it or care.

 

I am not sure at what point they cross-reference the visa application to her passport, so far all they really have is her name and would have it coupled only loosely from a name check. DHS and DOS have shown well they don't do a good job on coordinating yet (underwear bomber).

 

In any case, if she explains the J1 2yr situation and her past good record may get her in, may not... its worth a shot, I get the plane tickets for free and she's willing to try...

 

I have seen many cases on VJ with this situation and most do get in, unless they are pregnant or have some other red flags like overstays.

 

In a side note, a guy on my team who comes in to the U.S. from our offshore office in India to work got denied at the POE last night and I had two calls from the CBP agent getting clarification from me on his work requirements before they denied him. He has been here before to work for us and stayed away 6 months before coming back but for some reason he could not explain his work duties well enough to them.

 

Since the economic downturn we have seen a BIG increase in scrutiny on visiting work visas! {a good thing, I think}

 

Lee

[Lee VD]

Another option we are considering is to have her enter the U.S. on the 29th visit using the K1, marry ASAP, and file for the AP. It turns out her work is on leave for 3 weeks during this period so we are hoping she gets the AP on or about the time they come back to work. She will be giving her notice of resignation but she is willing to work with them a few weeks to transition her work to someone else or help until they find someone, and of course get rid of her things and move out of her apartment.

 

I looked at the FAQ about the AP and it seems the time to get it is pretty variable? Typically about how long does it take and are there any ways to expedite (like going to an office in person?)? It seems like the reasons you give for it in the application can help possibly expedite...

 

Ugh... just checked VJ:

http://www.visajourney.com/timeline/apstats.php

 

72 days on average

 

My question on tips to expedite still stands

Edited July 16, 2010 by Lee VD (see edit history)