PINELLA

Question:

If I file for the K1 soon, would this have any impact on his B2 visa/waiver application in due course i.e. when the Embassy in London starts processing non immigrant visas....

Noorah101

No. His B visa will remain in effect until it expires in December 2020.

Rene

PINELLA

Thanks for your response, but I need to clarify the question again. His B2 visa/waiver expires December 2020. In order to travel to the US again, he will need to apply for B2 visa and a waiver again, that is as soon as the Consulate in London is open for business. That being said, he has already filed his DS160 ((in August 2020), however, he is waiting for notification as to when the Consulate will start accepting DS160 visa appointments, however, no one knows when this will happen.

In the meantime, say within the next 2 weeks, I am hoping to file for his K1 visa in the US as I am located there. There are 2 issues to consider here. The first is, will the filing of K1 have any impact on his pending B2 Visa application (DS160 filed in August 2020).

The second issue is that the filed DS160 makes no mention of the K1 visa, as the decision to file for the K1 was taken in the last few weeks. So should he withdraw the pending DS160 (as the fees have not been paid as no appointments are available), and then file a new DS160 and mention the filing of the K1 visa application.

In any event, regardless, he will need to apply for a B2 visa/waiver in order to visit me in the US, whilst he K1 visa applications is being processed.

Please advice.....

scrubbedexpat099

Probably not, no one can be certain.

He can update the Consulate when he interviews. Obviously a B is a long way in the future.

Noorah101

My answer remains the same. Obtaining another B visa is independent of the I-129F filing.

Rene

PINELLA

I have a follow up question re I-601 waiver application file under the K1-visa.

Currently, there is a waiver available under s212(h) of the Act, which provides a discretionary waiver where the activities occurred for more than 15 years before the date of the application of admission to the United States if the admission to the United States would not be contrary to the national welfare, safety, or security of the United States and the foreign national has been rehabilitated (section 212(h)(1)(A)

Additionally, a discretionary waiver is also available if denial of admission would result in extreme hardship to a United States citizen or lawful permanent spouse, parent, son, or daughter (section 212(h)(1)(B).

My understanding is that you eligible for WAIVER consideration under both these above criteria if you file the I-130 Petition (marriage).

However, if you file I-601 waiver under the K1 visa Petition, the only criteria that is considered for the waiver is under EXTREME HARDSHIP (212(h)(1)(B).Over 15 year rule under s212(h)(1)A) does not apply to the K1 visa.

Can anyone please clarify if this is the case, before we file for the K1.

scrubbedexpat099

Sounds like another in a long list if reasons not to go K1.

Rete

Since he needed a waiver to get the B visa to visit the US because he couldn't use the VWP, one can assume that he will require a waiver at the time of the K-1 interview. But that is assume, not a definite.

His criminal act is minor (shopping lifting) so there is no way to forecast what definitely will happen. Why don't you get married first and apply for the CR-1 Visa for him after your marriage. Then again, with Europe closing in on itself due to the virus, you are nearly out of places to go to in order to have a legal wedding.

Why don't you consult with an immigration attorney and get their opinion on what might happen.

S Folinsky

Out of idle curiosity, what is the source upon which you base this interpretation? I find this of interest.

PINELLA

No particular concrete source, the interpretation is purely based on what I have read on a number of postings on the web. All dealt with the with the K1 Petition with a criminal conviction. In all postings, at the K1 interview stage, after the K1 was denied, they were advised by the Consular officer to file the I-601 and were required to show HARDSHIP . In all cases the convictions of the individual were more than 20 years old.

In my opinion, it would appear there is some contradiction in the advice there were given by the Consular officer on the face of it. Let me explain. Under the FAM (9 fam 502.7-3 (C)(7)- K Visa Issuance, - Waiver Availability for Applicants Ineligible under INA 212(A): A K Visa is a non immigrant visa, and therefore, K nonimmigrants are generally eligible for the INA 212(d)(3)(A) waivers. However, processing an INA 212(d)(3)(A) waiver would not be appropriate unless an immigrant waiver is also available when the K visa holder applies to adjust status to lawful permanent resident. To determine whether a waiver is available for the K applicant, you must therefore first examine whether the particular INA 212(a) ineligibility is waivable for immigrant spouses of US citizens, under either INA 212(g), INA 212(h) etc etc.

In my case, my boyfriend would fall under the INA 212(h)- (crime of moral turpitude). According to the FAM:9 FAM 305.2-3(A) Crimes of Moral Turpitude - INA 212(a)(2)(A)(i)(I)

(CT:VISA-287; 02-17-2017)

a. Waiver Available: An INA 212(h) waiver is available in cases where:

(1) The alien's admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities occurred more than 15 years before the date of the visa application;

(2) The alien is the spouse, parent, son or daughter of a U.S. citizen or legal permanent resident (LPR) and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or LPR; or

My reading of the above would suggest that if you satisfied (1)- over 15 years have passed since the conviction and before date of visa application, you should be eligible for a waiver. There is nothing to suggest that you have to fulfil both criteria (1) and (2), to be eligible for a waiver, and yet the posts that I have read would seem to suggest the latter. In cases where the application were to be by way of marriage i.e. CR1, one's waiver application would be considered on either satisfying (1) or (2) whichever was the easiest to satisfy.

It should also be noted I was making reference to the London Consulate

Perhaps, you could inject into the above as to what your opinion is.
It would be appreciated.

scrubbedexpat099

As Mr F is fond of pointing out he is or was? a Lawyer but not yours.

I thought I had mentioned that whilst a K1 is a NIV it is treated for most purposes as an Immigrant visa and the I 601 if needed would be the one, not a D3.

I do not know enough about your case to comment if a I 601 would be requested, when shove comes to push the CO is the one who makes the determination.

I did a K1, mistake then with the benefit of hindsight, even more so now as things have changed that make it even less appealing. Why the fascination with the K1?

PINELLA

Noted, I wish to marry in the US and not the UK. Problem is that he will not be able to travel for a while considering his B2/waiver (5 years waiver) runs out next month. It is likely that his application for the B2 plus the non-immigrant waiver will take a number of years considering the current status in London. Hence, the idea that we apply for a K1, which whilst I appreciate will also take some time, at the very least on the assumption that a waiver is granted, he can come across and adjust his status.

What I am trying to gauge is whether his i-601 is likely to be approved under K1 application. I believe regardless of whether it is a K1 application or a CR1 application, the i-601 waiver application is the same. Thus far, the posts that I have seen on the web seem to suggest that the i-601 application under the K1 is only granted under the HARDSHIP CRITERIA, which appears to contradict the FAM manual as posted earlier, in my opinion. My understanding is that, one is also eligible for consideration for a waiver if the conviction is over 15 years at the time of the waiver application.

So in a nutshell, the question still remains answered. Will the USCIS, when considering the i-601 waiver application under the K1 only apply the HARDSHIP criteria, or is the 15 year rule also applicable. when considering the granting of the waiver. It is unclear if both criteria MUST be satisfied, insofar as the K1 application is concerned.
What is clear is that the i-601 waiver application under the CR1 , so long as one satisfies one or the other criteria (15 years or Hardship), then the waiver is likely to be granted, subject to other discretionary factors.

Would appreciate your comments.

scrubbedexpat099

I think you need to see a Lawyer, I assume the initial argument was that a I 601 would not be required.

Anyway if a I 601 is needed then it is very rare for a well prepared one not to be approved, just a question of preparation. Nothing here suggests he has serious issues.

You can have the Wedding in the US, do the legal bit in the UK to get the immigration process rolling.

PINELLA

I appreciate you comments, but as my boyfriend will not be able to travel to the US until he applies for another B2/waiver which based on the current climate due to COVID19 is likely to take years. The Consulate in London is not processing any DS160 application, even though he had filed for a B2 visa, the nearest date available at one point was in Belfast in March 2023. On top of this, he will have to wait an additional 10 months minimum for his non immigrant waiver to be approved. In total we are looking at 4 years. Hence we are looking at K1. i0601 waiver application will definitely be needed., but the question posted still remains unanswered !

However, there is one participant (WhymeWhyme), in this Forum whose circumstances are identical to ours. It would appear from his last post that his I-601 waiver under K1 was approved, but it is unclear what CRITERIA (15 years OR HARDSHIP) was applied.

scrubbedexpat099

I 601's are hardship waivers, exactly what happened in somebody else's case, well you would need to ask them. There is no 15 years of hardship, you use your current circumstances.