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now I am REALLY confused!!!

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  • now I am REALLY confused!!!

    ok I just spoke to another lawyer and this is what he said

    Since my wife entered legally in the U.S. (has passport and b-2 visa)and we got married a week later this is what I have to do..

    file I-130 and then file for the I-485 and EAD permit.. thats it..

    he said since my wife entered legally and we have proof that we are really married for love that it will be easy.. well not that easy.. just take time.

    does this sound right??

    the other lawyer said I have to go with a K-3 visa. but my wife is already here and I dont want her to leave..

    Im confused!!!

  • #2
    ok I just spoke to another lawyer and this is what he said

    Since my wife entered legally in the U.S. (has passport and b-2 visa)and we got married a week later this is what I have to do..

    file I-130 and then file for the I-485 and EAD permit.. thats it..

    he said since my wife entered legally and we have proof that we are really married for love that it will be easy.. well not that easy.. just take time.

    does this sound right??

    the other lawyer said I have to go with a K-3 visa. but my wife is already here and I dont want her to leave..

    Im confused!!!

    Comment


    • #3
      I dont really know, but a friend of mine from the UK had met and was going to marry a USC. The USC spent a lot of time investigating how legally to do this and was warned about my friend coming in on a B2 and getting married. Hence, my friend stayed in the UK for the 6 months awaiting a K visa. He then came out and the got married within the 90 days. Basically I am saying get a lot of legal advise. Dont wait the 3 years for the INS to adjudicate then discover she gets a 10 year ban.

      Comment


      • #4
        Your lawyer is right. As long as she entered legally she can adjust status based upon marriage.

        As a matter of fact you don't have to wait till the I-130 gets approved to file I-485 if your wife is in the US, if she's not you have to wait till I-130 approval.

        http://www.ins.gov/graphics/howdoi/legpermres.htm tells you what you have to do.

        Has your wife been out of status at all?

        Comment


        • #5
          Hi,
          That's usually the way to go. However, the problem is that she came in on B2 and got married right away, which would be considered a fraud. B2 is a non-immigrant visa and she came in with the visa with obvious intent (it'd be hard to argue that she came in with no intent to get married and within a week of time, changed her mind). The application might get denied, then she'll be deported immediately. I'd advice you to bring this up to your lawyer and see what he says.. maybe he has dealt with this kind of situation before.

          Comment


          • #6
            well I am going to meet with the lawyer again to see.. I am going to ask if he is certified and all.. what other questions should I ask the lawyer to make sure he knows what he is doing.

            The clause about me getting married a week later is pretty easy.. since I have a newspaper article saying we are getting married in March 2003 in the U.S. so that can show that we were not planning on getting married however since we both were scared.. we got married asap.. it was also a small wedding and not alot of poeple attended. so that might help the cuase.

            any other advise to ask this lawyer?

            my wife did overstay her I-94 howewver on the INS webstie it shows this

            If "otherwise eligible" to immigrate to the U.S., immediate relatives may adjust status to LPR (get a "green card") in the United States even if they may have done any of the following


            remained in the U.S. past the period of lawful admission (e.g., past the expiration date on your I-94) and filed for adjustment of status while in an unlawful status because of that,


            so that means she is OK!!!! right???

            Comment


            • #7
              I reread your original post and getting married within a week after arrival will be a big problem I'm afraid.

              This is the so called 30/60 rule.

              What is the 30/60-day rule? According to the 30/60 day rule, it's an automatic presumption of visa fraud if the marriage occurs in less than 30 days after entry into the US on a tourist visa, no presumption of fraud if 30-60 days after entry (but the facts can still override if the evidence is strong), and after 60 days from entry into the US, no actions can be used to build a case of fraud. Some attorneys have said that this may apply only at consulates and may not apply to marriages filed with the INS offices in the US, however note in the file that it states that it involves ANY verbal or written statement made to a consular or port of entry officer. I always recommend that you consult an immigration attorney if you have further questions about this issue. You can read the consular law regarding the 30/60-day rule here:

              http://foia.state.gov/masterdocs/09fam/0940063N.pdf

              Like you siad befor talk to a good lawyer.

              Her overstay will be pardonned if she is approved, the only thing the overstay might effect is her travelrights. Is she overstayed more than 179 days she will trigger a 10 year ban when she leaves the country even while the I-485 is pending, less than 179 days will trigger a 3 year ban.

              Good luck.

              Comment


              • #8
                Hi, don't worry about her over-staying. It's not going to be a problem in adjusting her status (however i wouldn't advice her overstaying for more than 6 months). Now the critical part is how to convince the INS that the marriage is a "spur of moment" thing. If you can prove that, I guess you're fine.

                The website I posted earlier (in your other thread) has some successful stories of couples in your situation. Though they advice not to do it, I guess it's not entirely impossible. Remember, the decision is up to the INS officer who interviews you (your wife).

                My advice is, print out the website (especially the section where they advice not to marry immediately), and the link to the law about 30-60 day window, and bring them to your lawyer. Or better yet, ask your lawyer if he knows anything about it (the 30~60 day window and misrepresentation). If he doesn't know anything about it, you might be better off calling someone else. If he knows about it, ask his opinion on your particular situation, and on the articles you print.

                Note that the important question now is NOT whether or not you can apply for AOS in the U.S. You definitely can. The important thing is the chance of getting approved.

                I vaguely remember that I have a friend in similar situation as yours (the difference is that she had the intention to marry). She applied for K visa. The reason I remember it is that after the wedding she was complaining that the lawyer or the INS had lost their K visa application so she had to re-file (and I think that's the reason she came on B2 visa to get married). Don't quote me though. I'll ask for details when I have the chance.

                Comment


                • #9
                  Richard,

                  Xandtrick is correct in respect of the 30/60 day rule. The INS look at intent and getting married 6 days from entry has all the signs of intent. She will have to overstay if you do all the filing while she stays here, which could result in her being banned for 10 years....which will be nothing short of a disaster for the both of you.

                  As posted previously, you would be better off in the long run if you filed the I130 here and got your wife to return and do consular filing at her native country...(if this is allowed....you might want to check first).

                  Put my view to the next lawyer you visit and see what he says.

                  Loz

                  Comment


                  • #10
                    but.. this is not a fraud marriage... so it will be easy to show that it is not.. I have tons of pictures and plane tickets when I was working and visiting mexico. She also has visited me in the US twice and we have pics from that as well.

                    Also my family (mom, dad, and myself) went to mexico to ask for her hand in marriage and have pictures and also a newspaper article from that. I have video that can show us together as well.. I mean IN MY OPINION.. its easy to show that we are really a couple.. however I hope that INS thinks thatas well.

                    I even have a website

                    http://ricardoycorina.20m.com that I made for us as well.

                    what do you guys think???

                    Comment


                    • #11
                      IMO the problem will be that she came to the US with the intention to get married on a visa that wasn't issued for that.

                      I know this is stupid because the outcome is always the same but the INS wants you to play it by their rules.

                      She should have applied for the fiancee visa. Even if you can prove that it is a bonafide marriage the 30/60 rule will still apply to her.

                      There is a pretty good change she will denied AOS. If so appeal, if denied again she will be deportable and you will have to apply for a waiver.

                      Comment


                      • #12
                        IMO the problem will be that she came to the US with the intention to get married on a visa that wasn't issued for that.

                        I know this is stupid because the outcome is always the same but the INS wants you to play it by their rules.

                        She should have applied for the fiancee visa. Even if you can prove that it is a bonafide marriage the 30/60 rule will still apply to her.

                        There is a pretty good change she will denied AOS. If so appeal, if denied again she will be deportable and you will have to apply for a waiver.

                        Comment


                        • #13
                          I really hope that all that does not happen.. maybe wwith a good lawyer it wont.

                          also maybe the INSofficer will help us out since we are young (Im 22 and she is 21) and see that we are just trying to start our lives together.!!

                          any other info that you can give me?

                          Comment


                          • #14
                            Hi Richard,

                            The problem is not the marriage itself (whether it's genuine or not), but is that she entered on a non-immigrant visa which doesn't allow her to have any immigration intent. It's a fraud misrepresenting herself and using non-immigrant visa for other purposes. Any verbal or written statements she gave at the port of entry can be used against her. Of course people can change their mind and decide to stay after entering with B2 (take me as example, I entered with B2 and applied for COE to student status 3 months later). That's why there is the 30/60 day rule. The important thing now is not for your to prove that your marriage was real, but to prove that you got married as a result of "spur of moment," and that you didn't plan this when you entered the country. A small wedding like you mentioned helps.

                            So given the above, maybe that's why the first lawyer suggested that you send her back first so to avoid the 3/10 year ban.

                            Comment


                            • #15
                              Richard,

                              Wouldn't for one minute suggest that it is a fraudulent marriage. As previously stated by Xandtrick and JL the problem is not so much the marriage itself but the fact that your good lady had ulterior motives for entering the USA other than being a visitor. Now you can say that it was spur of the moment thing and you might get lucky, but this is a roll of the dice and the INS are entitled to question you and your wife in respect of this because the 30/60 rule does not apply, so are you sure that you can get your stories right, even under pressure? It really isn't worth it. Whereas, if she went back and did the consular filing, the eliment of risk is vastly reduced.

                              I actually came in on a VWP and to be honest I was SH*& scared that they would turn me down, but I was married one year after I came in and by that point I would have been banned for 10 years. So the risk was worthwhile. In your case it doesn't have to be this way and having lived with the anguish of not knowing, I wouldn't recommend it as a way of living.

                              Comment



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