anasmark

Im a USC got married with a girl from indonesia. She came here on K1 visa but she didnt not marry the person who gave her petition. she just had a baby on april 04(my baby)
Informations that i got so far that she have to go back to her country. and apply for K3. How long it takes to process K3?? is theres away for her to be legal without going back??
Im lost and dont know what to do????
Anyone who know about this please helpppp
i appreciate it thanks
mark

Rete

If you enter the US on a K-1 and do not marry the person who petitioned for you, there is no other way to adjust status or change visas while in the US. You have to leave. The problem is not only that she will have to leave the US to do the K-3 which will take up to a year but that she has overstayed her K-1 90 days by at least 180 days. I draw this conclusion on the fact that she met you, married you and had a child. The pregnancy alone, if normal, was 9 months. Having said that, she will be banned for a minimum of 3 years and upwards depending on the length of the overstay after the 179th day. That means the K-3 will be denied and she will need to file for a waiver.

Please do yourself, your wife and your child one very big favor, retain an immigration attorney to help you with this situation. It is not one that should be handled on the advice from laypeople on a newsgroup.

Rete

elga

It's a little difficult answering your questions since you're leaving out the exact time lines but I'm giving you a guess...

My guess is that your wife came to the US on a K1-Visa over 90 days ago?!

If a K1-Visa holder doesn't marry the original petitioner within 90 days after entering the US on her K1-Visa, the applicant has to leave the US and is 'out of status' if she doesn't do so. My guess is that your wife is currently considered an illegal alien by the USCIS since she probably overstayed those 90 days and didn't marry the original petitioner.

I think she has to file for a waiver of foreign residency requirement. Someone else may be able to confirm this though. (by I-601 or I-612?!)

Afterwards (or at the same time?!) you should be able and obliged to file a I-485 (including the necessary forms and documentation) for adjusting your wife's status so that she'll become a legal permanent resident based on your current marriage.

Rete

May I ask, elga, where you found this information? The K-1 beneficiary is not eligible to change to any other visa status from within the US if they have not fulfilled the K-1 and married the person that sponsored them.

This means they cannot apply for an F-1, H-1B, J-1 or I-485 based on marriage to another US citizen while inside of the US.

Awaiting your reply so that if what we have learned on this forum is incorrect, the incorrect information can be rectified.

Rete

elga

My thought was - and I well stated that hoping for someone else to shed light on the issue - whether or not the person may be able to file for a waiver or not on terms of hardship (i.e. seperation from her child). Continueing the thought, the idea was that if it were possible she should in the process be able to adjust her status based on her marriage.
I do 100% agree with your suggestion on contacting an immigration lawyer in cases like these.

AlphaTrionTJW

Get the to thine attorney. This is definitely not a do it yourselfer.
Personally, and I'm far from a legal expert on this, I think there could
easily be a case for immgration fraud made here. As elga said without exact
timelines there's not way to really advise which way to head other than
definitely go and get a legal-beagle to cover you ass on this one. The
length of time you're going to be seperate could be the least of your
problems.


--
--
Toby & Antoinette Woods
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Rete

Yes, she will be able to one day adjust status but it is not going to be easy and definitely not quick.

The one big mistake she made was in not leaving the US when she didn't marry the man who sponsored her for the K-1. Either she was using the K-1 as a means to enter the US only or she was really foolish in not learning all there is to know about the K-1. A waiver is not an easy thing to obtain and it is not quick either. I feel for the father having to be separated from his child while all this is pending.

Andrew DeFaria

Rete wrote:

    > If you enter the US on a K-1 and do not marry the person who
    > petitioned for you, there is no other way to adjust status or change
    > visas while in the US. You have to leave. The problem is not only that
    > she will have to leave the US to do the K-3 which will take up to a
    > year but that she has overstayed her K-1 90 days by at least 180 days.
    > I draw this
    > conclusion on the fact that she met you, married you and had a child.
    > The pregnancy alone, if normal, was 9 months. Having said that, she
    > will be banned for a minimum of 3 years and upwards depending on the
    > length of the overstay after the 179th day. That means the K-3 will be
    > denied and she will need to file for a waiver.
    > Please do yourself, your wife and your child one very big favor,
    > retain an immigration attorney to help you with this situation. It is
    > not one that should be handled on the advice from laypeople on a
    > newsgroup.

Why does everyone alway assume they have to be in the US! Do your child
a real favor and be a father, be with your child and move to Indonesia.

--
Smile, it's the second best thing you can do with your lips.

ian-mstm

You make a good point... to a point. Why do we assume, as in this case, that the husband will be allowed to live in Indonesia? I mean, doesn't Indonesia - or just about any other country - have its own immigration laws? Are the US laws so much stricter than those other countries? I'm really not trying to be a smart ass here (although I certainly will admit to being a smart ass many other times! ), but one of the stock answers when there's a problem of this sort is "why doesn't the USC just move to the other country?". I'm really just curious.

Ian

Just Jenney

To my knowledge, all countries have immigration laws. Whether they are the same, stricter or more lax than US immigration laws, I have no idea. But here's my take on it:

The foreign wife has violated US immigration laws, which is what prevents her from living in the US. But the USC husband presumably has not violated the immigration laws of his wife's country; I doubt they've ever even considered going that route. So unless there's something major in his background -- like drug offenses, etc., -- they can apply for a spousal visa in HER country for HIM, and he can go live with her there.

In this particular case, I would be surprised if it took longer than 3 years (the length of her US ban) to get him to Indonesia on a spousal visa.

~ Jenney

Bluegrass Lass

Good point, J&M, but this does make the assumption that her country will have the equivalent of a Spousal Visa. Can we make the assumption that every country in the world has such a visa? I've only researched US laws so I truly do not know.

Also, don't some countries expect the intending immigrant to have some good/special skills in order to migrate there? Or does this only matter if there is no spousal visa? If skills are required, this could be a handicap when trying to move to the foreign spouse's country.

It's easy to say that the USC should go to the foreign spouse's country, but in all fairness, that's a bit tough to do too, I think. Especially when it comes to the standard of living and medicine availability that most of us USC's are used to (us USC's are pretty spoiled I suppose). This is going to sound somewhat snobby, but when deciding to immigrate to a country, doesn't one want to take a step up rather than a step down? Doesn't one want to go to the "better" country? Not saying Indonesia is a bad country (since I know nothing about it), but there are many good reasons to want to remain here in the US - so I understand why they're trying to find a way for her to stay here. However, given the OP's situation it may indeed be easier & be a less painful separation to move to Indonesia - assuming he can do so.

This was not intended to be offensive to anyone, and I apologize if it was.

Andrew DeFaria

ian-mstm wrote:

    > You make a good point... to a point. Why do we assume, as in this
    > case, that the husband will be allowed to live in Indonesia? I mean,
    > doesn't Indonesia - or just about any other country - have its own
    > immigration
    > laws?

You make a good point too. However I think it'd be a lot easier for him
to get into Indonesia than her into the US - especially given the
situation...

    > Are the US laws so much stricter than those other countries?

It is my understanding that yes, indeed, they are. Many more people are
dying, committing fraud, suffering in the sweltering desert heat in
trucks, claiming asylum, stowing away in boats and even cargo
containers, etc to get into the US than say The Congo! Not sure where
Indonesia fits on the scale of things but in general people want to live
where there is opportunity, freedom, wealth and the chance to make a
better live for themselves.

    > I'm really not trying to be a smart ass here (although I certainly
    > will admit to being a smart ass many other times! :) ), but one of the
    > stock answers when there's a problem of this sort is "why doesn't the
    > USC just
    > move to the other country?". I'm really just curious.

No, my point is that the one stock answer that is usually neglected or
not even considered is "why doesn't the USC just move to the other
country?". Look around, it's seldom suggested or thought of.

--
I don't have a solution but I admire the problem.

Just Jenney

I understand where you're coming from, but there are actually two different issues. One is what the couple WANTS to do, and the other is what the couple CAN do.

Using the OP's situation as an example: The OP and his wife want to adjust her status without her having to leave the US. However, since his wife violated her K1 visa, this option is not available to them. So, they can't get what they want.

Now, if their REAL objective is to live together as a family -- husband, wife and baby -- then they DO have options. One of those options is to see if he can emigrate to Indonesia. They could live together as a family there at least until her 3-year ban is up. Then they could try relocating to the US and adjusting her status.

Again, this is not their first choice, but because of his wife's previous actions, this is a way that they could at least stay together as a family. Where she comes from is a secondary issue. It may not be ideal, especially compared to living in the US, but at least they would be together.

The alternative would be to live separately and wait out her 3-year ban. One option in that scenario is for their baby to stay with him in the States instead of going with her back to Indonesia, again another option which many couples don't seem willing to explore.

~ Jenney

Eric S.

    > Why does everyone alway assume they have to be in the US!

I think it's fair to assume, since this is a forum about immigrating to the
US, that people who post here want information about that.

- Eric S.

Just Jenney

Yes, but that doesn't explain why people think living in the US is their only option.

~ Jenney