Finacee Visa versus Marriage Visa

[WedoJohns]

Dear Members,

I have been communicating with my Fiancee for about 8 months and recently went to visit her in September. We have been emailing each other everyday for the 8 months and talking with each other on the webcam 3 times a week. I was already in love with her, but when I met her I knew for a fact that I loved her. After a few days I proposed to her and we decided that I would come back in January and we would get married. This is the situation:

She has a son who turned 18 years old on September 10th. We would like to get married in China in January and then start the process to bring her and her son to the U.S. I have seen posts where children over 18 can cause difficulty in the process if you marry in China. Could someone please advise me on the quickest way to get both her and her son to the U.S. together, whether it requires us getting married in China or the U.S. I would appreciate all the advice that I can get on this subject including the forms that need to be filed and the process us getting forms translated correctly. Thank you in advance for your help.

[dnoblett]

Glad you asked!

 

In your case THE ONLY option is K-1, K-2 fiancee visa. If you marry and file for a spouse visa, the 18 year old child will NOT be able to immigrate with parrent because you CANNOT file for a visa for a step child if marriage takes place AFTER the child's 18th birthday.

 

Fiancee and child need to come to the USA on K-Visas, then you marry, and they can adjust status based on the K-1/K-2 visas.

 

Here it is in black and white.

 

Form I-130 used for spousal visa (CR-1 (Spouse), CR-2 (Step Child))

 

Who May Not File Form I-130?

3. A stepparent or stepchild, if the marriage that created the relationship took place after the child's 18th birthday.

 

Again the only option is for you to file an I-129F for a Fiancee K-1 visa and include child on this petition to get a K-2 visa.

 

What I woud do is file the I-129F now, and then visit, in January, and have a nice "Engagement Party" with family there without the legal marriage taking place until after arriving in the USA.

Edited October 13, 2010 by dnoblett (see edit history)

[dnoblett]

If you were to marry over there, this is how it will play out.

 

 

 

 

1. Marry in January
2. File an I-130 for wife only.
3. 6 months to 1 year later wife will interview for her CR-1 spouse visa.
4. Child will have to be left behind
5. Wife enters the USA.
6. Wife then files an I-130 for her child as a child of an LPR (Visa prefrence F-2A)
7. Wait 6-10 months for a visa number to be issued under the F-2A priority.
8. Wait some more for child's visa interview
9. Hopefully this all happens before child turn's 21

[WedoJohns]

The instructions for Form I-129F states in a bold "NOTE: Unmarried children of your fiancee or spouse who are under 21 years of age and listed on this form will be eligible to apply to accompany your fiancee or spouse." The form goes further to state "Who May File Form I-129-F. See Item 8, How Do You Use This Form for Your Spouse Seeking Entry Using a K-3 Visa, on Page 4. 8. How Do You Use This Form for Your Spouse Seeking Entry with a K-3 Visa? This form may be used to obtain a K-3 Visa for your alien spouse. Fill out the form as directed, except assume that "fiancee" means "spouse." Answer Questions B.17 and B.18 by stating "N/A." Note that filing this form is only necessary to facilitate the entry of your spouse as a nonimmigrant. You must submit the documents required in Items 1, 2 and 4 of the instructions, but may omit the documents required in Item 3. In addition, U.S. citizens petitioning for K-3 visas for their alien spouses must also include evidence that they have filed Form I-130, Petition for Alien Relative, on behalf of the alien spouse listed on this form, and a marriage certificate evidencing the legal marriage between the U.S. citizen and alien. The LIFE Act requires applicants to apply for a K-3 visa in the country where their marriage to the U.S. citizen petitioner occurred. Petitioners should make sure to identify the appropriate consulate, in the same country where they married the alien for whom they are petitioning."

 

How does this language relate to the requirement to marry before the child turns 18 as stated in Form I-130?

 

Thank you in advance for your assistance.

[dnoblett]

The instructions for Form I-129F states in a bold "NOTE: Unmarried children of your fiancee or spouse who are under 21 years of age and listed on this form will be eligible to apply to accompany your fiancee or spouse." The form goes further to state "Who May File Form I-129-F. See Item 8, How Do You Use This Form for Your Spouse Seeking Entry Using a K-3 Visa, on Page 4. 8. How Do You Use This Form for Your Spouse Seeking Entry with a K-3 Visa? This form may be used to obtain a K-3 Visa for your alien spouse. Fill out the form as directed, except assume that "fiancee" means "spouse." Answer Questions B.17 and B.18 by stating "N/A." Note that filing this form is only necessary to facilitate the entry of your spouse as a nonimmigrant. You must submit the documents required in Items 1, 2 and 4 of the instructions, but may omit the documents required in Item 3. In addition, U.S. citizens petitioning for K-3 visas for their alien spouses must also include evidence that they have filed Form I-130, Petition for Alien Relative, on behalf of the alien spouse listed on this form, and a marriage certificate evidencing the legal marriage between the U.S. citizen and alien. The LIFE Act requires applicants to apply for a K-3 visa in the country where their marriage to the U.S. citizen petitioner occurred. Petitioners should make sure to identify the appropriate consulate, in the same country where they married the alien for whom they are petitioning."

 

How does this language relate to the requirement to marry before the child turns 18 as stated in Form I-130?

 

Thank you in advance for your assistance.

I figured you may ask about the K-3/K-4 it too is a dead end for the child.

 

In order for a K-4 (Child) to adjust status later in the USA, the petitioner (US Citizen Step Parent) would be required to provide an I-130 to base the adjustment of status on, and since a US Citizen Step parent cannot file an I-130 petition for a step child that is over 18 at time of marriage, the K-4 child will not be able to adjust status.

 

Another problem with K-3 is it too is essentially a dead visa type, USCIS started the practice of tying I-130 and the I-129F filed for the K-3 together and has been approving them together on same date and the send them together to NVC where NVC closes the I-129F petition in favor of the CR-1 (I-130) visa.

 

I normally advise people to do Spouse visa instead of K-Visa for the economics, however in the case where there is an older child the only option is K-1/2 with it's added expense of adjustment of status.

[Ryan H]

The K3 visa essentially does not exist anymore even though it is still on the books. USCIS has recently approved the I-130 and I-129F together and sending them off to the NVC. The NVC in turn administratively closes the I-129F leaving only the I-130 active. In your situation, you would be right back to the sequence of events Dan laid out in his post.

 

Remove thoughts of a K3 from your mind.

[dnoblett]

Here is a sad post where a couple married after child's 18th and managed to get K-3/4 visas only the have the K-4 denied adjustment of status later.

 

http://www.visajourney.com/forums/topic/253646-k4-daughter-done-with-i-485-interview-but-i-130-seems-denied/page__p__3896686#entry3896686

[dnoblett]

The K3 visa essentially does not exist anymore even though it is still on the books. USCIS has recently approved the I-130 and I-129F together and sending them off to the NVC. The NVC in turn administratively closes the I-129F leaving only the I-130 active. In your situation, you would be right back to the sequence of events Dan laid out in his post.

 

Remove thoughts of a K3 from your mind.

Restored.

 

Sometimes extra posts are needed to reinforce a point.

[Randy W]

If you were to marry over there, this is how it will play out.

 

 

 

 

1. Marry in January
2. File an I-130 for wife only.
3. 6 months to 1 year later wife will interview for her CR-1 spouse visa.
4. Child will have to be left behind
5. Wife enters the USA.
6. Wife then files an I-130 for her child as a child of an LPR (Visa prefrence F-2A)
7. Wait 6-10 months for a visa number to be issued under the F-2A priority.
8. Wait some more for child's visa interview
9. Hopefully this all happens before child turn's 21

 

 

The child's status IS protected by the CSPA in this scenario - however, the protection is effective as of the date the visa number is available. In other words, the visa number must become available before the child's 21st birthday.

 

However, if it does not, the child (now adult) simply changes category - from 2A to 2B (this WILL add a few years to the wait, but will NOT make him/her ineligible).

[dnoblett]

If you were to marry over there, this is how it will play out.

 

 

 

 

1. Marry in January
2. File an I-130 for wife only.
3. 6 months to 1 year later wife will interview for her CR-1 spouse visa.
4. Child will have to be left behind
5. Wife enters the USA.
6. Wife then files an I-130 for her child as a child of an LPR (Visa prefrence F-2A)
7. Wait 6-10 months for a visa number to be issued under the F-2A priority.
8. Wait some more for child's visa interview
9. Hopefully this all happens before child turn's 21

 

 

The child's status IS protected by the CSPA in this scenario - however, the protection is effective as of the date the visa number is available. In other words, the visa number must become available before the child's 21st birthday.

 

However, if it does not, the child (now adult) simply changes category - from 2A to 2B (this WILL add a few years to the wait, but will NOT make him/her ineligible).

True however one thing that would cause a problem would be is if child were to marry while waiting for visa, this would invalidate, unless mother became a US citizen before the son married.

 

Anyway the point is that marriage and spouse visa will result in a long period of separation for mother and son.

[dnoblett]

Here is a sad post where a couple married after child's 18th and managed to get K-3/4 visas only the have the K-4 denied adjustment of status later.

 

http://www.visajourn...86#entry3896686

A little more insight into this case.

 

• K-4 denied AOS last May.
• Child voluntarily left country and returned home to Philippines, before overstay exceeds 6 months.
• LPR filed Petition after the return home, case has a priority date of October 1
• Sad thing is daughter turns 21 this November, and currently NVC is issuing F2A visa numbers with a priority date last April.
• Daughter will miss the window for F2A class and will drop into the F2B class which for PI is priority date (Sep 2002) (8 Years wait)