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  • Clarification help please

    My fiance and I are thinking about a certain strategy. It has been told to us that we can change the status of her visa while she is here.

    Currently she has a B1/B2 visa. We WILL be married but want to do this correctly. She has family and do not want to have their Visa's refused based on any stupid action on our part. So, the question is this, she will leave here at the beginning of September 2018. She will return and from what I believe she can return in a DIFFERENT year. She believes that she can wait until January, 2019 to return. I thought it was a six month wait to regain entrance. If I can get proper clarification here it would help.

    Anyway, when she returns we would like to do one of two things. First, get married and then change the status at this point AFTER the marriage. Or, apply to immigration and request a change from a B1/B2 Visa to a K-1 visa. Here I have no clue but would like to receive advice. First, can we do this? Second, considering her son may want to visit, by doing this would our actions create a problem for him? We are telling him to apply for his own B1/B2 Visa at this moment. So he should have this by the time we start OUR procedure. If so, thoughts are they would not revoke HIS Visa but allow him to visit. But in doing this would it create problems with Immigration? I am a CPA and know there are times when certain things are done the IRS is livid. I do not want to "piss off" our good friends in immigration.

    I have heard from a number of people here that the marriage while in the USA and then the change in status is the best alternative. I am happy to do this, but just want to make sure this is completed correctly.

    Your help would be GREATLY appreciated.
    Last edited by Bravo Mike; 07-06-2018, 09:43 PM.

  • #2
    Originally posted by Bravo Mike View Post
    My fiance and I are thinking about a certain strategy. It has been told to us that we can change the status of her visa while she is here.

    Currently she has a B1/B2 visa. We WILL be married but want to do this correctly. She has family and do not want to have their Visa's refused based on any stupid action on our part. So, the question is this, she will leave here at the beginning of September 2018. She will return and from what I believe she can return in a DIFFERENT year. She believes that she can wait until January, 2019 to return. I thought it was a six month wait to regain entrance. If I can get proper clarification here it would help.

    Anyway, when she returns we would like to do one of two things. First, get married and then change the status at this point AFTER the marriage. Or, apply to immigration and request a change from a B1/B2 Visa to a K-1 visa. Here I have no clue but would like to receive advice. First, can we do this? Second, considering her son may want to visit, by doing this would our actions create a problem for him? We are telling him to apply for his own B1/B2 Visa at this moment. So he should have this by the time we start OUR procedure. If so, thoughts are they would not revoke HIS Visa but allow him to visit. But in doing this would it create problems with Immigration? I am a CPA and know there are times when certain things are done the IRS is livid. I do not want to "piss off" our good friends in immigration.

    I have heard from a number of people here that the marriage while in the USA and then the change in status is the best alternative. I am happy to do this, but just want to make sure this is completed correctly.

    Your help would be GREATLY appreciated.
    What "year" she returns in doesn't matter. She can try to use the visa to return at any time; there is no number of months that she has to wait. Whether to admit her or how long to admit her are at the judgment of the officer. Of course, returning too soon will decrease the chances she will be admitted, but how soon is too soon is subjective.

    "Change of Status" refers to a change from one nonimmigrant status to another inside the US. It's not possible to do Change of Status to K1, and there would be no point anyway. The point of K1 is to allow her to enter the US to marry and apply for Adjustment of Status. If she is already in the US, she can already marry and apply for Adjustment of Status at any time, without changing status.

    If she is outside the US, she is not supposed to enter on a B2 visa with intention to do Adjustment of Status during that stay. So if she is outside the US, and she wants to enter the US to marry and do Adjustment of Status, she would go through the K-1 process. Her unmarried under-21 child can get a K-2.

    This is my personal opinion and is not to be construed as legal advice.

    Comment


    • #3
      Originally posted by newacct View Post
      What "year" she returns in doesn't matter. She can try to use the visa to return at any time; there is no number of months that she has to wait. Whether to admit her or how long to admit her are at the judgment of the officer. Of course, returning too soon will decrease the chances she will be admitted, but how soon is too soon is subjective.

      "Change of Status" refers to a change from one nonimmigrant status to another inside the US. It's not possible to do Change of Status to K1, and there would be no point anyway. The point of K1 is to allow her to enter the US to marry and apply for Adjustment of Status. If she is already in the US, she can already marry and apply for Adjustment of Status at any time, without changing status.

      If she is outside the US, she is not supposed to enter on a B2 visa with intention to do Adjustment of Status during that stay. So if she is outside the US, and she wants to enter the US to marry and do Adjustment of Status, she would go through the K-1 process. Her unmarried under-21 child can get a K-2.
      So to be clear the possibility for her return can be at anytime. She actually went back today, her mother died last night, less than one hour after writing the new post. Since she is gone the potential exists she can re-enter to celebrate the year end holidays like Thanksgiving and Christmas. We can do a three month request showing the return ticket. She was here last summer for five months and this time she arrived May 31 and left July 7. Neither exceeded the six month time period. Assuming she can arrive back say mid November then, in theory, she can remain for, at most, six months. In this time should we be married then the change in status would be to what? You're right about the K-1, no sense if already married. But if we do this then would we simply apply for a Green Card? Or what? And doing this would it screw up any of her relatives possibilities of a B1/B2 visa? The only, I believe, would be her son who will apply now.

      Have had clients of mine assume things when, in MY mind, I clearly told them what needed to be completed and the proper form. I do not want to be one of them so if you could just clarify:

      - Knowing it IS subjective, waiting four months very possibly would be sufficient, subject to the immigration officer at entry,
      - Have her enter on her B1/B2 visa then get married subject to a reasonable time factor, not immediately but after a few months, then have her status change to, what?

      I KNOW I am a pain in the @$$ but staying up all night to coordinate her flights I just want to make sure.

      Thanks for your response.

      Comment


      • #4
        Originally posted by Bravo Mike View Post
        So to be clear the possibility for her return can be at anytime. She actually went back today, her mother died last night, less than one hour after writing the new post. Since she is gone the potential exists she can re-enter to celebrate the year end holidays like Thanksgiving and Christmas. We can do a three month request showing the return ticket. She was here last summer for five months and this time she arrived May 31 and left July 7. Neither exceeded the six month time period. Assuming she can arrive back say mid November then, in theory, she can remain for, at most, six months. In this time should we be married then the change in status would be to what? You're right about the K-1, no sense if already married. But if we do this then would we simply apply for a Green Card? Or what? And doing this would it screw up any of her relatives possibilities of a B1/B2 visa? The only, I believe, would be her son who will apply now.

        Have had clients of mine assume things when, in MY mind, I clearly told them what needed to be completed and the proper form. I do not want to be one of them so if you could just clarify:

        - Knowing it IS subjective, waiting four months very possibly would be sufficient, subject to the immigration officer at entry,
        - Have her enter on her B1/B2 visa then get married subject to a reasonable time factor, not immediately but after a few months, then have her status change to, what?

        I KNOW I am a pain in the @$$ but staying up all night to coordinate her flights I just want to make sure.

        Thanks for your response.
        She is not supposed to enter on B2 with intent to do Adjustment of Status (i.e. get permanent residency while in the US) during that stay, no matter how many months you wait. If she enters without intent and then changes her mind that's another story.

        The proper way if she is outside the US is either:

        1) You petitioner her (with I-129F) for K-1. She comes on K-1 (and her son comes on K-2); you guys marry, and they file for Adjustment of Status. or
        2) You guys marry (doesn't matter where; it could be during a temporary trip in the US if the let her in and then she leaves; or it could be in her country or any other country), and then you petition her and her son (with two separate I-130s) and they do Consular Processing for an immigrant visa in her home country.

        This is my personal opinion and is not to be construed as legal advice.

        Comment


        • #5
          Originally posted by newacct View Post
          She is not supposed to enter on B2 with intent to do Adjustment of Status (i.e. get permanent residency while in the US) during that stay, no matter how many months you wait. If she enters without intent and then changes her mind that's another story.

          The proper way if she is outside the US is either:

          1) You petitioner her (with I-129F) for K-1. She comes on K-1 (and her son comes on K-2); you guys marry, and they file for Adjustment of Status. or
          2) You guys marry (doesn't matter where; it could be during a temporary trip in the US if the let her in and then she leaves; or it could be in her country or any other country), and then you petition her and her son (with two separate I-130s) and they do Consular Processing for an immigrant visa in her home country.
          Scenario:

          She visits again because this trip was cut short by her mother's death. She wants to see more, like Disney and Boston, MA. She returns and we go, as friends, to these places. Considering the time of year, around Thanksgiving, the epiphany hits that we both want something more personal. And we decide to go to a Justice of the Peace (JOP). Nothing fancy, nothing formal, can be argued that it was a spur of the moment decision. While this IS a scenario and the best laid plans go to waste at the first round being fired, this seems like a plausible scenario. So, assuming this DOES occur this way would it be possible to switch her status from B1/B2 to permanent or something else? Her son is 27 I believe so no need to have him come here. He has a very secure job in her city, an Engineer, and he travels everywhere and does NOT want to move from his current location. Visit, yes, move permanently, no.

          Accomplishing this would show, I believe, no immediate desire to have a marriage on the trip. Waiting from the end of October to mid December would show not an immediate run to the church and something as simple as a JOP may probe more spontaneity than a planned event. And if this is a reasonable plan how would her travel be handled. Meaning, would she need to leave and await a decision or could she remain and then be allowed a status to apply for a Green Card and eventually a citizenship?

          Since I have no idea your help is important and I am grateful for this.

          Comment


          • #6
            Hey,
            So I know nothing about the B1/B2 visa specifically, but there are couple of things I wanted to mention that might be useful:
            1. The process you will be going through to change her non-immigrant B1/B2 visa while she is in the US to permanent residence/green card is commonly called 'Adjustment of Status - AOS'. Through this process she will get a 2-year conditional green card and after 2 years you will file new forms to prove that you have remained married to get her a 10-yr green card. While your AOS case is being adjudicated, she will have to hold off on travel outside the US until her 'Advanced Parole' is approved. You can file for advanced parole (form I-131) as part of your AOS application (other forms are I-130, I-485, I-693, I-845, I-765). That is just some basic info about AOS.
            2. You should wait for at least 90-100 days after your significant re-enters with her B1/B2 visa before you get married. The reason, in brief, is that USCIS may presume that your s/o misrepresented her reason for being in the country at the port of entry and may deny your application simply on those grounds.


            Originally posted by Bravo Mike View Post
            Scenario:

            She visits again because this trip was cut short by her mother's death. She wants to see more, like Disney and Boston, MA. She returns and we go, as friends, to these places. Considering the time of year, around Thanksgiving, the epiphany hits that we both want something more personal. And we decide to go to a Justice of the Peace (JOP). Nothing fancy, nothing formal, can be argued that it was a spur of the moment decision. While this IS a scenario and the best laid plans go to waste at the first round being fired, this seems like a plausible scenario. So, assuming this DOES occur this way would it be possible to switch her status from B1/B2 to permanent or something else? Her son is 27 I believe so no need to have him come here. He has a very secure job in her city, an Engineer, and he travels everywhere and does NOT want to move from his current location. Visit, yes, move permanently, no.

            Accomplishing this would show, I believe, no immediate desire to have a marriage on the trip. Waiting from the end of October to mid December would show not an immediate run to the church and something as simple as a JOP may probe more spontaneity than a planned event. And if this is a reasonable plan how would her travel be handled. Meaning, would she need to leave and await a decision or could she remain and then be allowed a status to apply for a Green Card and eventually a citizenship?

            Since I have no idea your help is important and I am grateful for this.
            Marriage-based AOS from F-1

            06-15-2018: Fed-Ex package delivered
            06-21-2018: 4 NOA texts and emails
            06-25-2018: 4 NOAs received in the mail
            06-28-2018: Biometrics Letter rec'd in the mail
            7-10-2018: I-693 courtesy letter received
            7-11-2018: Biometrics Appointment
            7-15-2018: "We reviewed your biometrics and are still processing your case"
            7-19-2018: "Interview was scheduled" update on https://egov.uscis.gov/casestatus
            8-23-2018: Interview Date
            8-24-2018: Status updated to 'Approved'

            Comment


            • #7
              Originally posted by paase View Post
              Hey,
              So I know nothing about the B1/B2 visa specifically, but there are couple of things I wanted to mention that might be useful:
              1. The process you will be going through to change her non-immigrant B1/B2 visa while she is in the US to permanent residence/green card is commonly called 'Adjustment of Status - AOS'. Through this process she will get a 2-year conditional green card and after 2 years you will file new forms to prove that you have remained married to get her a 10-yr green card. While your AOS case is being adjudicated, she will have to hold off on travel outside the US until her 'Advanced Parole' is approved. You can file for advanced parole (form I-131) as part of your AOS application (other forms are I-130, I-485, I-693, I-845, I-765). That is just some basic info about AOS.
              2. You should wait for at least 90-100 days after your significant re-enters with her B1/B2 visa before you get married. The reason, in brief, is that USCIS may presume that your s/o misrepresented her reason for being in the country at the port of entry and may deny your application simply on those grounds. /
              Thank you. That was the plan, she will be able to return at some point in January. At this time it is our hope she has a six month stay at the gate.

              Figure Jan 10 in entry date. Feb 14 is in 35 days, March 8 is another 23 and the days start to add up. Based on me being a CPA, April 15 will give her 95 days. Given my profession, this COULD be an excuse for doing something as spontaneous as a trip to the JOP. Or even a week later after the return from Disney. Anyway, I think the spontaneity issue can be protected and then we can start the process. According to what you said, she would be able to remain in country while this process occurs? I THINK this is correct, just do not want to violate the time allowed to remain.

              Again thanks and I appreciate the input.

              Comment


              • #8
                Great info.

                Comment

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