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Thread: K3 & I-601 for Mexican Spouse who EWI

  1. #1
    HELP! Ideally, I would like to hear from attorneys or anyone married to a mexican spouse who entered the US without inspection.

    For those going the K3 route for a spouse currently illegal in the US, what dates do you put on the I-130 and I-129 when they ask for dates that they were in the US? Can we just say November 1998 to PRESENT for example and plan to stay in the US until the time of the first consulate interview - or is it expected that my spouse leave the country before I submit the I-129?

    Next question: My husband - who is illegally in the US and without employment authorization - has worked as a self-employed individual with a legitimate tax-identification number and pays his taxes. He has never used fraudulent documents to work - but he does receive income through work that he does. Does anyone have any experience with this issue or know how it will be viewed/handled? I assume that the I-601 waiver will cover this?

    And the BIG question: Other than a 4 to 6 month stay in Mexico (while we attend interviews and wait for I-601 approval), can anyone explain to me why someone who is married to a mexican spouse who entered the US illegally would NOT go the K3/consular processing route? I am amazed with the number of people in this situation who have decided or been advised against the K3 route and have filed the I-130 and plan to wait - but I don't understand! - WAIT FOR WHAT? the law to change?! When a spouse has entered without inspection and someone only files an I-130, they will eventually (2 years or so) get a notice that their spouse will still have to return to their home country to complete the processing of their visa (and go through the I-601 4-6 month process) - AND they have to cross their fingers that they won't get any other kind of "notice" now that they have subjected themselves to deportation proceedings by alerting BCIS that they are in the US illegally. A spouse who enters the US without inspection is not able to adjust status in the US without first returning to their home country and completing the I-601. - period. What am I missing here? Ciudad Juarez has historically had a 95% approval rate for I-601s -most of these are spouses who entered without inspection. The 5% who are not approved are likely individuals with serious criminal records. When deciding how we wanted to process, it came down to A) staying in the US together and waiting for the law to change (that probably never will) and raising a family while my husband is not able to work legally, not able to travel like we want and always afraid of running into immigration - OR B) being separated for up to 8 months (and probably more like 4) while he returns to Mexico but comes back legal, with employment authorization, and on track to becoming a permanent resident and citizen. I understand how hard it is to be separated but there is no other way around it. Filing a I-130 for a spouse who entered the US without inspection is not going to save you from having to return to Mexico in the future. ... unless I have really missed something. - so why aren't more people going the K3 route? Please let me know.

  2. #2
    HELP! Ideally, I would like to hear from attorneys or anyone married to a mexican spouse who entered the US without inspection.

    For those going the K3 route for a spouse currently illegal in the US, what dates do you put on the I-130 and I-129 when they ask for dates that they were in the US? Can we just say November 1998 to PRESENT for example and plan to stay in the US until the time of the first consulate interview - or is it expected that my spouse leave the country before I submit the I-129?

    Next question: My husband - who is illegally in the US and without employment authorization - has worked as a self-employed individual with a legitimate tax-identification number and pays his taxes. He has never used fraudulent documents to work - but he does receive income through work that he does. Does anyone have any experience with this issue or know how it will be viewed/handled? I assume that the I-601 waiver will cover this?

    And the BIG question: Other than a 4 to 6 month stay in Mexico (while we attend interviews and wait for I-601 approval), can anyone explain to me why someone who is married to a mexican spouse who entered the US illegally would NOT go the K3/consular processing route? I am amazed with the number of people in this situation who have decided or been advised against the K3 route and have filed the I-130 and plan to wait - but I don't understand! - WAIT FOR WHAT? the law to change?! When a spouse has entered without inspection and someone only files an I-130, they will eventually (2 years or so) get a notice that their spouse will still have to return to their home country to complete the processing of their visa (and go through the I-601 4-6 month process) - AND they have to cross their fingers that they won't get any other kind of "notice" now that they have subjected themselves to deportation proceedings by alerting BCIS that they are in the US illegally. A spouse who enters the US without inspection is not able to adjust status in the US without first returning to their home country and completing the I-601. - period. What am I missing here? Ciudad Juarez has historically had a 95% approval rate for I-601s -most of these are spouses who entered without inspection. The 5% who are not approved are likely individuals with serious criminal records. When deciding how we wanted to process, it came down to A) staying in the US together and waiting for the law to change (that probably never will) and raising a family while my husband is not able to work legally, not able to travel like we want and always afraid of running into immigration - OR B) being separated for up to 8 months (and probably more like 4) while he returns to Mexico but comes back legal, with employment authorization, and on track to becoming a permanent resident and citizen. I understand how hard it is to be separated but there is no other way around it. Filing a I-130 for a spouse who entered the US without inspection is not going to save you from having to return to Mexico in the future. ... unless I have really missed something. - so why aren't more people going the K3 route? Please let me know.

  3. #3
    Hi i&il,

    My husband is from Mexico and entered without inspection. We looked into doing the K-3 but decided to wait out the I-130. And yes of course we'll have to go to Mexico once it's approved. Here's why we decided not to do the K-3:

    1. If he gets a K-3, we have to wait for employment authorization upon re-entry. I'm not sure where you heard that you can get it when you re-enter (or in Juarez?), but that's not what our lawyer told us, or what I've heard from other K-3ers. K-3 holders have to apply for an EAD, which can 9and often does) take up to three months.

    2. If he gets a K-3, that means filing for AOS when he gets back, which means not being able to leave the country without advanced parole, which is notoriously slow and hard to get. We want all this crap to be done and finished and settled when we get back. Also, if we file for AOS that means more paperwork, more money in fees, and another interview to take time off work for. And at our local INS office (where we would have the AOS interview), they are really picky about back-taxes, which we don't want to have to file, and won't if we get the green card in Juarez.

    3. I'm planning to go and stay with my husband in Mexico for about three months, so we need to save money to pay the house and all the other bills while we're gone. So waiting a little longer was Ok with us. And by the way we're not the least bit worried about him being put in deportation proceedings... there are WAY too many people in his situation for USCIS to do that to all of them... And anyway they're too busy chasing terrorists.

    Esperanza

  4. #4
    one more thing I thought of... actually in some ways the most important thing...

    The K-3 is a pretty new beastie and there's still some uncertainty and disagreement about how it all works and how it should be used... (this is according to my immigration lawyer)

    If the K-3 were to be denied for whatever reason, that means my husband would be stuck in Mexico until the I-130 is approved... No thanks. I want to know for sure, one way or the other.

    E.

  5. #5
    This is what is so frustrating to me: the BAD information that people are getting from immigration attorneys. Attorneys like this should be disbarred.

    At the very least, please print my e-mail and share with your "attorney" the incorrect information he/she has given you - and share it with his/her state bar association and supreme court requesting discipline and/or disbarment. The REAL TRUTH is USCIS grants K3 applicant with a two-year admission period when the K3 visa holder enters the United States. Foreign national spouses present in the United States can travel outside of the United States and return using their K3 visa. K3 VISA HOLDERS DO CAN LEAVE AND RETURN THE US NO PROBLEM - WHILE WAITING TO ADJUST STATUS - THEY NEVER HAVE TO APPLY FOR ADVANCE PAROLE. While in K3 status, if one has filed for adjustment of status in the US prior to departure from the US, USCIS will not presume that the departure constitutes abandonment of an adjustment application.

    Employment authorization is also immediate with a K3. It's the same process and results as a I-129 fiance.

    As far as being denied - it's not the K3 visa you have to worry about - it's the I-601 - and that, you're going to have to do when you process your I-130 in Ciudad Juarez. ... The processes and risks are identical - but the K3 is a whole lot faster.

    Thank you for sharing - and please don't take it personal - I'm just reacting to your incompetent and uneducated attorney who has the nerve to say that he specializes in immigration and has charged you money for such inaccurate inforamtion. The crazy thing is that attorneys get away with it because people don't take the time to do a little research themselves - all this information on K3 - the ability to travel without advance parole - and the immediate employment authorization - is on so many legitimate websites - most importantly, BCIS.

    PEOPLE - WATCH OUT FOR THESE IMMIGRATION ATTORNEYS. MAKE SURE THEY TRULY SPECIALIZE OR ARE FAMILIAR WITH THE COUNTRY YOU ARE IMMIGRATING FROM. DON'T TRUST AN ATTORNEY WITH YOUR LIFE. DO YOUR OWN INVESTIGATION AND INQUIRIES AND PHONE CALLS. THE FACTS AND INFORMATION ARE OUT THERE. IT BREAKS MY HEART THAT PEOPLE SPEND NEEDLESS TIME AND MONEY THAT THEY DON'T HAVE TO.

  6. #6
    i&il,

    I know that the K-3 is TECHNICALLY a multiple-entry visa. But USCIS is notorious for not knowing or necessarily following their own rules. Basically I was told (and I believe it) DON'T COUNT ON being able to leave the country. Maybe you're right. But I, personally, don't want to risk it...

    Employment authorization IS NOT immediate with a K3. This is from the USCIS website (http://uscis.gov/graphics/howdoi/hdiknonimm.htm):
    "Persons in K-3 or K-4 status and applicants for adjustment to permanent resident status from K-3 or K-4 are eligible to apply for a work permit while their cases (Form I-130 or Form I-485) are pending. You should use INS Form I-765 (Application for Employment Authorization) to apply for a work permit."

    This means you have to APPLY for a work permit- which can take up to three months!

    Also, the process and risks of doing the K-3 and the I-130 are not identical!! With the K-3 you have to go through two approvals, not just one! The K-3 involves more paperwork, more filing fees, and an additional interview.

    It's fine that you're going to do the K-3 and you've made that decision. But immigration is more like an art than a science - you can get different ideas and different information from different places, even (especially) the government itself.

    You are the one who asked the question of why people in the same situation aren't doing the K-3... But you don't like to accept the answer, do you? Could that be because you so desperately want your way of looking at it and the information you've heard to be true? Hopefully it is. What if it's not?

    Anyhow, please watch yourself before you imply that other people's information is completely wrong and they are stupid for having believed it. We're all just doing the best we can here.

  7. #7
    Esperanza what is the name and location of your laywer i am in the same situation and have been told several different things

  8. #8
    Either route is going to have pretty much the same outcome. The difference is that those who file the I-130 and wait for it to be approved will not have to bother with the extra hassle and expense of a K3. Since the I-130 takes so long, they will probably have already had thier 2nd anniversary when the spouse gets residence, so they are also saving themselves the hassle of having to remove the conditions. The extra time in the U.S. means that the couple will have more time to establish thier marriage and plan ahead for thier hardship arguments. In my case, I wasn't aware of the K-3, but there is no way that it would have been possible. I was still in college when I filed the I-130. Having to endure a separation or go to Mexico with my husband at that time would have been very stressful and it my grades would have suffered a lot. I will be graduating in May, so I'll be free to re-locate in order to be near my husband when he's waiting for the I-601. We've also had time to save a little money, which we may need for the expenses that will be involved in the whole process (traveling, room and board, lawyer, physical, filing fees, phone calls etc)

    [This message was edited by Glühbirne on March 25, 2004 at 05:47 PM.]
    Have a nice day

  9. #9
    I recently heard from someone who had planned to apply under the K3 visa. But they also filed for the I-130. By the time they went to their interview, the I-130 had just been approved.... so the K3 visa was not necessary.

    I am not married to a Mexican National, but to an Ecuadorian (our I-601 was processed by an immigration officer from Mexico). We had to wait about a year for the I-601 to be approved. However, it is approved, and my husband is now here - with the I-551 one in his passport and green card on the way.

    I had just about reached the end of my rope by the end of the process. I am so glad that we decided to got the I-130 route, and don't have to deal with immigration for him again for quite some time. He is a Permanent Resident, and I don't think that we will have to really deal with the whole blasted system again for another 2 years + (or until he can apply for citizenship). At most we will have to send in a change of address form.

    This is sooo wonderful, because at this point, after all the stress. I really don't know how I would have dealt with an AOS.

    So, I would say file the I-130 and schedule the interview. If the interview comes up first apply for the K3 if you want (or postpone it if you think that the I-130 is about to be approved). But sometimes the 1st interview takes a while to get, and the I-130 can already be processed. We submitted ours on Sept 4, 2001, then september 11 happened, and we were still approved by January....

    No matter what you decide. Good luck to you!

  10. #10
    Thank you all so much for your responses and feedback. I understand a lot more now.

    I am still looking for an answer to my other question: What dates do you put on the I-130 and I-129 when they ask for dates that they were in the US? Can we just say November 1998 to PRESENT for example and plan to stay in the US until the time of the first consulate interview - or is it expected that my spouse leave the country before I submit the I-129?

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