K1 Apply Now? Prev J1 w 2 year bar and CCP Membership

[loveatfirstsite42]

A year ago, my visiting scholar g/f went back home and I was supposed to meet her 2 weeks later in Shanghai, but travel has been banned and I haven't seen her in a year.  We talk every day on Wechat and Skype.  She was a J1 visitor with 2 year home rule residency requirement.  She also has CCP party membership, but just a university teacher in a liberal arts subject, not involved with the government or military, and if she quits CCP she loses her job.

We've decided we want to be together forever.  I was told I could apply for the K1 today, and they would process starting now.  If they finish before the 2 year requirement is met they will wait for it to be met and then issue the visa, so I don't have to wait for it to be met and then apply and wait for the K1 to process.

We're worried about the CCP membership with everything Trump said about it.  Should we wait for Biden to be in office for a while to apply, or should we apply immediately hoping that we will get it soon after the 2 years expire?

Edited January 26, 2021 by loveatfirstsite42 (see edit history)

[Randy W]

CCP membership issues are covered in the topic  CCP Membership Issues, but I don't think that will be much of an issue for you. I also don't think that that issue has changed much, or will change much under either Trump or Biden. CCP membership is dealt with at the Consulate stage.

The 2 year requirement is that you must have met in person during the 2 years PRIOR TO FILING. With travel restrictions and quarantining in effect, any visitation for the next 2 to 3 months is likely to be somewhere on the scale of problematic to impossible. But in re-reading your post, I see that you are only referring to the J-1 residency requirement.

Visitations help your case at the interview, however, so make your plans accordingly. I see no problem with applying now.

Edited January 27, 2021 by Randy W (see edit history)

[loveatfirstsite42]

Wow thanks.  I didn't realize there was a two year prior meeting requirement.  Normally, I wouldn't think that would apply to me, but given the current unknowns.  It could easily be another year before I see her, although I sincerely hope not.  I better get to filing.

So you think that applying for the K1, 1 year before it will be allowed is okay?  There's another thread where they say to move it closer to the 2 year expiration.

Thanks for the link on CCP membership issues.  I actually realized when applying tags to my post the tag search system.  I had trouble searching before that, because j1 and f1 were two characters.  I found this post regarding CCP membership and citizenship, where the OP could not get citizenship for 10 years and also didn't have evidence of leaving:  

I wanted to suggest you add something about the 10 year since left requirement for citizenship to the CCP Membership issues page, because I wasn't aware that this would likely extend her citizenship, and that it would be a good idea to try to save some sort of record of her leaving in case we needed to prove it for citizenship purposes.  I found that info to be supervaluable.

 

[Randy W]

See also the CFL topic Communist Party Membership, where an visa officer at the Consulate responded to questions about CCP membership back in 2005.

The laws concerning membership in a Communist organization are a relic of the Cold War. Application of these "requirements" is largely discretionary on the part of the Immigrations/Visa Officers. You are unlikely to get an officer so strict as the one in your linked topic. Most applicants sail through the issue with no complications. The worst that can happen is a several month delay for 'Administrative Processing", in which interaction with the party can be investigated. Even "resigning" the party can be interpreted as an interaction with the party, thereby extending her membership in the view of our Immigrations officials.

My advice is to plan on sailing through, but be aware of the less desirable possibilities. The document in the CCP Membership Issues link the I gave earlier will probably be the most helpful ( CCP Essay - http://www.candleforlove.com/FAQ/CCP_Essay.doc)

[loveatfirstsite42]

Okay, thanks.  One additional question.  Since I have to wait a year at this point for the J-1 Home Rule Residency to expire.  Should we get married now and just apply for the CR-1 and wait for the 2 year J1 home residency requirement to expire?

[Randy W]

10 minutes ago, loveatfirstsite42 said:

Okay, thanks.  One additional question.  Since I have to wait a year at this point for the J-1 Home Rule Residency to expire.  Should we get married now and just apply for the CR-1 and wait for the 2 year J1 home residency requirement to expire?

That is usually a good idea, but you can file the K-1 NOW, whereas you'd have to wait until you can be together and get married to file the I-130 for a CR-1 (I'm assuming that a even a Zoom wedding requires the couple to be physically together). The K-1 might be the path of least resistance here if you're unsure about when that might happen.

Another approach might be to file the K-1 now, and then if the opportunity comes up as far as getting married, consider whether to vacate the K-1 application by getting married. You'd lose the I-129F filing fee, but that expense MAY be worthwhile under the circumstances.

The CR-1 is the better choice under normal circumstances considering the J-1 residency requirement and that she will have legal permanent residency as soon as she is processed at the POE, but you have to consider both the expenses involved and the potential timelines.

Either way, keep your call logs, or at least your own records of your Skype and WeChat chats.

[loveatfirstsite42]

I read that you can get a proxy marriage in Kansas, and one party just must be present in Kansas for 3 days before they are eligible.  I live in the midwest, so Kansas is not so far.

I also read however, that for a marriage to be valid for immigration purposes that it has to be consummated.  Which I guess is something they are not going to ask you in an interview, but if you cannot show that you've been together after the marriage, they can assume is not actually the case.  Here's a quote from an attorney's website, "US Immigration requires eligibility at time of filing. Thus, a proxy marriage must wait for consummation to occur prior to filing an I-130 Petition."  I guess "cybering" isn't good enough.

https://www.fickeymartinezlaw.com/immigration/proxy-marriage-and-us-immigration-clarification-on-the-consummation-requirement/

But is the CR1 timeline similar, where they will process most of the CR1, and then wait until the 2 years is up, and then have the interview, and then do a CCP investigation for 5-7 months, and then issue the visa? (assuming everything goes well)

Edited January 29, 2021 by loveatfirstsite42 (see edit history)

[Martin B]

3 hours ago, loveatfirstsite42 said:

I read that you can get a proxy marriage in Kansas, and one party just must be present in Kansas for 3 days before they are eligible.  I live in the midwest, so Kansas is not so far.

I also read however, that for a marriage to be valid for immigration purposes that it has to be consummated.  Which I guess is something they are not going to ask you in an interview, but if you cannot show that you've been together after the marriage, they can assume is not actually the case.  Here's a quote from an attorney's website, "US Immigration requires eligibility at time of filing. Thus, a proxy marriage must wait for consummation to occur prior to filing an I-130 Petition."  I guess "cybering" isn't good enough.

https://www.fickeymartinezlaw.com/immigration/proxy-marriage-and-us-immigration-clarification-on-the-consummation-requirement/

But is the CR1 timeline similar, where they will process most of the CR1, and then wait until the 2 years is up, and then have the interview, and then do a CCP investigation for 5-7 months, and then issue the visa? (assuming everything goes well)

I would be a little worried about a virtual wedding, but who knows nowadays. Is there a third-country where both US and Chinese citizens can still travel nowadays? I think someone on Reddit mentioned meeting up with his Chinese GF in Kenya recently. You could get married there and then file the CR1.

Otherwise, it seems like the K1 visa is your best option if you're unable to have a wedding ceremony anytime soon. You have the option to switch to a CR1 if there is some crazy unexpected change (e.g. Covid disappears by June and free travel is allowed again). But you can't switch from CR1 to K1. 

Last I recall USCIS is taking about 9 months to approve the I129F, plus who knows how long it will take to get an interview with the enormous backlog most embassies now have. The whole process could easily take 12-18 years from I129F to interview, during which time I assume you'll be able to meet up with her somewhere. 

Also CPC administrative processing doesn't always take 5-7 months. Some people have been cleared in as little as a week or two. Some have been pending for years. It's probably the worst part of the whole process since the wait time is unknown and there is almost no recourse. 

Regarding J1 two-year rule: be sure to check if the 2-year rule applies to returning to the US on a K1, or filing a petition. If it's the first, you should be fine assuming she left the US at least 9 months ago. If it's the latter, you'll need to wait until the 2-year mark passes to file the I129F. Also, there may be some waivers available. I'm really not that familiar with the J1 visa however, so you'll definitely want to confirm.

Edited January 29, 2021 by Barfus (see edit history)

[Randy W]

I'm sure you meant "could easily take 12-18 MONTHS from I129F to interview", not years.

From the Dept of State

Quote

Some exchange visitors with J-1 visas are subject to a two-year home-country physical presence requirement. It requires you to return home for at least two years after your exchange visitor program. This requirement is part of U.S. law, in the Immigration and Nationality Act, Section 212(e).

You are still eligible to apply for any visas you are otherwise eligible for, as long as the 2 year rule is not violated.

There are plenty of other CFL topics about the home residency requirement that I'm sure the original poster is aware of, since he added the tags to those topics.

As far as visitation, there is always Jeju Island,  Korea, which offers visa-free access for Chinese citizens, but marriage laws usually will have a residency requirement - e.g. "waiting for up to 21 days". But Jeju Island may be open to marriage by foreigners.

The CCP issue is sometimes decided same day (with NO administrative processing). Read the  Communist Party Membership topic.

The COVID restrictions on travel are likely to be a major factor even within China, at least through April.

The best advice with regards to the timeline still seems to be to file a K-1 NOW, but consider getting married and filing the I-130 (for a CR-1) later this year, if the possibility arises. The only downside I see here is the expense of filing 2 petitions. While the K-1 is processing, you can evaluate whether to continue with the K-1, or if a marriage and CR-1 is in your cards.

Edited January 30, 2021 by Randy W (see edit history)

[Martin B]

Agree with Randy above, and yes I meant 12-18 months 😄

K1 visa used to be a decent deal when it took 6 months from filing I129F to embassy interview, AOS took 4-8 months, and EAD/AP took 60-90 days to get after arriving. It's now 10+ months from I129F to interview, AOS is easily 1+ year in most major metro areas, with some areas like Seattle taking up to 2 years. And this was before Covid. Removal of conditions is a nightmare with some people reporting their 18-month extensions running out and difficulties in getting an I551 stamp.

The best option may be to file the K1, marry 6+ months later if possible, and file for a CR1. Chances are that by the time she enters the US she'll get her 10-year green card, which will save a ton of hassle. You'll still have the K1 as a backup.