Will this work? Sounds a little fishy to me

[True Blue]

The facts:

• Wife has an unmarried adult daughter who is in line for immigration as F1 (see post below) Wife's dream is for her to live near us.
• Daughter is now 31, never been married. She has steady boyfriend/fiance and they want to get married. He wants to come to USA as well.
• Daughter still has 3 years in line (may be can cut that to 2 years if she can re-qualify as F2b) which would make her 34 (33 if F2b) when she arrives. Wife worries she will be too old to have children.
• Wife is urging them to stay unmarried so daughter can get here earlier (difference in arrival time to USA is an additional 4 years to the 3 years she still has in line).
• Wife wants grandchildren while I (and she) are still relatively active enough to do things with them

How does the fiance get here to USA and how can he stay?

• I thought of K-1/K-3, but Daughter won't be U.S. Citizen until 39 which may impose health concerns if they try to have children then. And he might not put his life on hold for 5 yrs. (I wouldn't)
• It's very hard for him to get a work visa and the field he is in (computers) is not big in our city/state so he would likely have to live across country even if he could get an employment visa.
• Student visa is possible, but he has a masters and really a doctorate doesn't help him in his field. He also wants to work in his field. I am near retirement age and 5 years of out of state graduate tuition would be a major burden on me.

 

<> A local Chinese lawyer suggested this idea -

-Wait until daughter's visa slot is approved and she is about to get her green card in 3 years.

-Then have fiance come on a tourist visa and marry just before (e.g. a couple days before) the green card is issued.

 

I have to admit my mind does not follow this twisted logic at all (other than possibly invalidating daughter's green card) and I am doubtful we could get the timing that good, but he thinks it will work.

 

 

Thoughts? Other possible solutions to keep this couple together in the US before I die or go to the pour house? (other than having them marry and continue to live in China for another 7 years?)

 

Thanks

 

Best,

TB

[dnoblett]

No matter how you slice it there will be some added time.

 

Two routes.

1. Daughter marries, and her pending petition reverts from (F1) to (F3) adding some time waiting for a visa number, however when it does come, it is just a matter fo filing additional DS-260 applications for additional visa(s) for her spouse and any children.
2. Daughter does not marry, waits for her visa and once she immigrates to the USA she then returns to China and marries, and then files an I-130 for her spouse her spouse would then be (F2A)

 

If you for some reason get her switched to F2B Option #1 is NOT an option and would have to do Option #2

 

K-Visa are not an option, they are only available to US citizens which daughter would not be able to become until after 5 years as a green-card holder.

 

Lawyer's suggestion is visa fraud and can cause all sorts of issues up to and including deportation hearing.

[True Blue]

Thanks Dan, I strongly suspected the lawyer's advice was not right.

• The F3 option would be (based on current pace - may slow when the processing influx from Syria & illegals in the U.S. put to the front of the line hits) is 6 years and 2 months more so she would be 37 1/2 when they got here but child could be born earlier while she is still in China and her age is still younger. (Wife is worried about difficulty of child birth when daughter gets older)

• The stay unmarried with F1 option, then have her marry and bring him over by F2A Visa would be a total of 4 years, which would make her 35 1/2 when they both can get here so child birth time would be age 36 1/2 at earliest

 

Two final questions - both are highly unlikely, but I want to know the answers when I am asked .

(1) if daughter stayed unmarried, but gets pregnant and has a baby while in China, is there any way she could adjust to bring the child with her when she gets her VISA slot? Or does baby need to wait for a F2A?

(2) if daughter stays unmarried, gets pregnant and comes to U.S. to have an "anchor baby" who is then I believe a US citizen, then can she take the baby back to China and can the baby return to USA when she gets her VISA slot?

 

Thanks for your response.

 

TB

Edited October 9, 2015 by True Blue (see edit history)

[Randy W]

The waiting time is NOT due to processing time for OTHER immigrants, but is based on quotas (set by Congress) for each country. Thus, the times in the visa bulletin, should not be affected by other processing, but only by the number of applicants from that country.

 

A baby born on US soil is a United States citizen, and may claim his or her passport at any time. A US passport would require a visa to enter China. Alternatively, she could get a Chinese passport for the baby through one of the Chinese consulates in the U.S. Then, when she is ready to bring the (born in the U.S.) child with her to the U.S., she could apply for an American passport at that time, using the child's American birth certificate.

[True Blue]

The waiting time is NOT due to processing time for OTHER immigrants, but is based on quotas (set by Congress) for each country. Thus, the times in the visa bulletin, should not be affected by other processing, but only by the number of applicants from that country.

 

A baby born on US soil is a United States citizen, and may claim his or her passport at any time. A US passport would require a visa to enter China. Alternatively, she could get a Chinese passport for the baby through one of the Chinese consulates in the U.S. Then, when she is ready to bring the (born in the U.S.) child with her to the U.S., she could apply for an American passport at that time, using the child's American birth certificate.

Thanks Randy,

 

That is good to know. I had worried about the effect on processing time given the potential of putting 200,000 Syrian refugees and who knows how many illegal immigrants to the front of the line with no legislative increase in the number of workers at USCIS. I certainly feel for everyone who wants to come into the USA, but I think it is unfair to jump ahead in the line of legal immigrants. I guess it the way I was brought up - stay and wait in the queue, don't jump ahead. Oddly, I find my Chinese wife and her friends have absolutely no problem jumping to the front of any queue. I don't know if it is just them as individuals or if it is a cultural thing. I guess when you are in a country with 3 times the people as the USA maybe you may feel the need to push to the front of the line rather than be left behind,

 

I have been critical of anchor babies as an unfair way of rigging the system in the past. However, given that everything else in the system that is unfair, it may be a way to catch a break to get big benefit to our family. My wife has a saying - I can't remember the Chinese wording, but it basically means if there is a shortcut available to you or your family (whether it is fair or not to other people) you are a fool to pass it by.

 

I have a hard time accepting that sort of thing. When I was in China, (and this is a generalization not true of everyone -but just my observation as compared to America) I noticed that most people generally only cared only for themselves, immediate friends and their families and did not give a crap for others. On my first trip. an elderly lady tripped on the curb and fell at a crosswalk. I immediately went to help her up and see if she was alright. My then fiance yelled at me to stay away as she said the lady will blame her fall on "lao wai". In subsequent trips my behavior had been much more Chinese (only worried about myself and my family), than American (ready to help any stranger). I can't say I felt good about it but I accept it as" when in Rome do as the Romans do". As for having an anchor baby as a grandchild, as an American I feel bad to take advantage of a loophole in the rules. But since the loophole is there and others are taking advantage of it, it's hard to insist my family does not take advantage of it due to my personal misgivings.

 

Thanks again Randy

 

Best,

TB

Edited October 10, 2015 by True Blue (see edit history)

[newacct]

<> A local Chinese lawyer suggested this idea -

-Wait until daughter's visa slot is approved and she is about to get her green card in 3 years.

-Then have fiance come on a tourist visa and marry just before (e.g. a couple days before) the green card is issued.

It doesn't make sense.

 

It's not clear what this lawyer meant by "get her green card". People who immigrate through consular processing get an immigrant visa, and then the moment they use that immigrant visa to enter the US, they immediately become a permanent resident. They might get the plastic card later, but they are already a permanent resident (colloquially people say "has a green card") at that point. If they marry before she enters the US (and becomes a permanent resident), she is no longer eligible for the immigrant visa based on F1 category and can no longer enter the US using it. If they marry after she enters the US (and becomes a permanent resident), the husband is acquired after she became a permanent resident (even if she hasn't gotten the plastic card yet) and he cannot immigrate as a derivative beneficiary. In neither case can she both immigrate under F1 category and have him immigrate at the same time as her.

 

• The stay unmarried with F1 option, then have her marry and bring him over by F2A Visa would be a total of 4 years, which would make her 35 1/2 when they both can get here so child birth time would be age 36 1/2 at earliest

Not necessarily. For example, they could 1) have a child before getting married, although that is not ideal, or 2) have the child after getting married, and while he is waiting for a visa number in the F2A category. She can get a re-entry permit and spent a lot of that period in China.

 

Two final questions - both are highly unlikely, but I want to know the answers when I am asked .

(1) if daughter stayed unmarried, but gets pregnant and has a baby while in China, is there any way she could adjust to bring the child with her when she gets her VISA slot? Or does baby need to wait for a F2A?

Yes. If she has the child before her immigrant visa is issued, she can add the child on the case to get an immigrant visa as a derivative beneficiary. If she has the child after her immigrant visa is issued but before she enters the US, she can bring the child to the US when she enters for the first time, and the child will enter as an immigrant without needing a visa. If she has the child after entering the US and on a temporary trip abroad, the child can be brought back to the US before age 2 on the mother's first return to the US, and the child will enter as an immigrant without needing a visa.

 

(2) if daughter stays unmarried, gets pregnant and comes to U.S. to have an "anchor baby" who is then I believe a US citizen, then can she take the baby back to China and can the baby return to USA when she gets her VISA slot?

Of course.

[Randy W]

 

<> A local Chinese lawyer suggested this idea -

-Wait until daughter's visa slot is approved and she is about to get her green card in 3 years.

-Then have fiance come on a tourist visa and marry just before (e.g. a couple days before) the green card is issued.

It doesn't make sense.

 

It's not clear what this lawyer meant by "get her green card". People who immigrate through consular processing get an immigrant visa, and then the moment they use that immigrant visa to enter the US, they immediately become a permanent resident. They might get the plastic card later, but they are already a permanent resident (colloquially people say "has a green card") at that point. If they marry before she enters the US (and becomes a permanent resident), she is no longer eligible for the immigrant visa based on F1 category and can no longer enter the US using it. If they marry after she enters the US (and becomes a permanent resident), the husband is acquired after she became a permanent resident (even if she hasn't gotten the plastic card yet) and he cannot immigrate as a derivative beneficiary. In neither case can she both immigrate under F1 category and have him immigrate at the same time as her.

 

 

 

I think your response is best based on the reality of the situation - that neither is going to legally immigrate while on a tourist visa - but I think the lawyer is proposing they try exactly that.

 

That is, that the daughter immigrate on a tourist visa, file an I-485, and stay while it is being processed, and then that her fiance/future husband do the same thing. Then that little window, where, in the lawyer's mind anyway, he might become a derivative beneficiary to the original I-130 by marrying before the green card was issued MIGHT actually exist - but I think we're talking about an extremely warped parallel universe.

 

The catch, of course, is that no flood gates have been opened for actions which HAVE IN THE PAST and STILL fall in the category of immigration fraud. There is NO new provision for someone undergoing I-130 processing at the consular level to file an I-485 adjustment of status application., including while in the U.S. on a tourist visa.

Edited October 11, 2015 by Randy W (see edit history)

[dnoblett]

Every time I see gaming the immigration system I think of this one...

 

Couple married while waiting for visas to process through as unmarried, and in time each came over as unmarried, they ran into a legal problem years later when trying to naturalize and become citizens.

 

 

 

In the early 1980s, their mothers came separately to the United States as legal immigrants and petitioned for residence visas, known as green cards, for Pedro and Salvacion under the category of unmarried children. But between the time the visas were requested and when they were issued in 1985, Pedro and Salvacion, hoping to escape conflicting parental demands, secretly married in the Philippines.

 

Unaware that their marriage could have violated the terms of their green cards, the Servanos settled in the United States. He completed a second medical residency here and began to practice in blue-collar towns where he made house calls and was known for attention to everyday ills. He and Salvacion married in New Jersey in 1987. They renewed their green cards punctually.

 

“My goal is to be fully functional and integrated into the society,” Dr. Servano said. They presented their 1991 naturalization applications without seeking a lawyer.

 

Immigration inspectors reviewing their applications discovered a record of their Philippine marriage. Accused of lying, they were ordered deported. In years of immigration court appeals, the Servanos had no opportunity to present broader evidence of their character, their lawyers said.

 

http://www.nytimes.com/2008/04/12/us/12naturalize.html?ei=5087&_r=0

[newacct]

That is, that the daughter immigrate on a tourist visa, file an I-485, and stay while it is being processed, and then that her fiance/future husband do the same thing. Then that little window, where, in the lawyer's mind anyway, he might become a derivative beneficiary to the original I-130 by marrying before the green card was issued MIGHT actually exist - but I think we're talking about an extremely warped parallel universe.

But I don't understand what "window" there is, regardless of Adjustment of Status or Consular Processing. Even if she marries during Adjustment of Status, I don't think her husband would be eligible to file Adjustment of Status at that time, because he would be derivative of an F3 category immigrant, and a visa number is not yet available for her priority date in the F3 category.

[Randy W]

 

That is, that the daughter immigrate on a tourist visa, file an I-485, and stay while it is being processed, and then that her fiance/future husband do the same thing. Then that little window, where, in the lawyer's mind anyway, he might become a derivative beneficiary to the original I-130 by marrying before the green card was issued MIGHT actually exist - but I think we're talking about an extremely warped parallel universe.

But I don't understand what "window" there is, regardless of Adjustment of Status or Consular Processing. Even if she marries during Adjustment of Status, I don't think her husband would be eligible to file Adjustment of Status at that time, because he would be derivative of an F3 category immigrant, and a visa number is not yet available for her priority date in the F3 category.

 

 

 

Only 3 years down the line in the parallel universe of the lawyer's mind - I don't think we need to go there.

[Randy W]

The thing is that this new visa bulletin format doesn't create any NEW eligibilities - that is, those who were previously NOT eligible for Adjustment of Status are STILL not eligible.

 

Those who ARE eligible to adjust status MAY be able to file sooner than had previously been possible. Under the OLD visa bulletin, those who WERE eligible for Adjustment of Status had to wait for their priority date to become current before filing an I-485.

Edited October 12, 2015 by Randy W (see edit history)

[Randy W]

it should be noted that the Dept. of State is saying this about the new visa application dates:

 

B. DATES FOR FILING FAMILY-SPONSORED
VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions.

 

 

 

Thus, the new dates are applicable to those applying for visas overseas, as well. Although they may NOT apply to adjust status or for an EAD or AP card, they may use the new dates to file their visa applications following instructions received from the NVC.

[credzba]

Why not have the baby WITHOUT being married ?

 

Is there some rule that an unmarried child, WITH their own child cannot come on an F1 visa.

Just make sure the child is a US citizen so that when the daughter comes on the F1 visa, the child comes because it is already a US citizen.

 

That shouldn't be hard to achieve, just wait until about 3 months pregnant, daughter come visit mom and dad for 6 months, viola.

Citizen baby, mama is still unmarried, so can come with F1 visa, and grandchild can come visit g-ma and g-pa ANYTIME because its a US citizen.