K1 or Spousal how do they stack up ???

[DallasTexas]

... in response to K1 is a good idea, IMO, posted by Viajero on Jul 26, 2001

Sorry but if your spouse divorces you within 2 years of arrival here with a spousal visa she goes back to her home country. In fact when they come in the port of entry they are told this again and sign an acknowledgement statement.  

The wording that the INS officer used to explain it was that if "you don't like the way she parts her hair you can call and they will be deported."

[Anony mouse]

... in response to Re: K1 is a good idea, IMO, posted by DallasTexas on Jul 26, 2001

Sorry DallasTexas.  Try taking your hearsay evidence into an INS hearing.  "The INS officer told me you'd deport her".  They'll be laughing until tears roll down their faces.  The only thing that matters is that boring, tedious, difficult-to-read law/regulation that Georgina quoted you.  Now within that "good faith" definition there is a whole lot of gray area.  That's why we let judges decide the cases and not clerks.

Mr. Mouse

[Georgina]

... in response to Re: K1 is a good idea, IMO, posted by DallasTexas on Jul 26, 2001

I am not a lawyer and don't take my word for sure but I know at least two couples here. They married American citizens. Got their conditional Permanent resident and got divorce before the two years frame. She was very scare thinking they were going to deport her. Went to two lawyers. One told her "Oh yea, this is very bad, you are going to be deported if we don't do this and that (this lawyer just wanted money)" Then she went to other lawyer he told her "Don't worry about it. You don't need me. Just apply by yourself and tell them you got divorced before the 2 years frame, divorces happen" The INS didn't have any problem. She was approved and got her permanent residence.She didn't used a lawyer but I have hear it is better to use one.

I just cut and pasted this from a website that have a lot information about it.

Situation: The K-1 spouse has applied for and received conditional adjustment of status (ie, has attended the first greencard/adjustment interview, and has received either an I-551 stamp in the passport, a letter of adjustment, OR a conditional 2-year green card): In this situation, the immigrating spouse has four options for removing the "conditional" stipulation on his/her adjustment and staying in the US as a permanent resident:

spouse died,
marriage was entered into in good faith, but you are now divorced or annulled,
marriage was entered into in good faith, you remain married, but are a battered spouse,
deportation would result in extreme hardship.
1. Concerning removal of conditions based on divorce: Note that IF the spouse is DIVORCED, he/she can file IMMEDIATELY to have conditions removed, does not have to prove battery and only needs to prove that the marriage was entered in good faith. Read it again: the foreign spouse could go ahead and and file the I-751 for removal of conditions as soon as the divorce was finalized if a divorce occurred during the 2-year conditional phase of the green card, IF the marriage was originally entered into in good faith. This applies no matter what kind of visa the spouse used to originally enter the US, whether K-1 or otherwise. Any foreign spouse who has applied for adjustment based on marriage may petition for removal of conditions if a divorce occurs prior to removal of conditionsl on the 2-year green card, as long as the spouse already has a 2-year green card.

This is a very important consideration to have in mind IF your spouse will be entering the US on a spousal visa (either filed the regular "service center" method or via direct consular filing)....after entering the US on this visa, your spouse is in a very good position from the standpoint of the INS, because should you divorce, he/she can petition IMMEDIATELY for a permanent 10-year green card, in addition to whatever goods/assets he/she might reap as a result of the divorce itself.
However, be aware that filing for removal of conditions based on divorce requires STRONG proof of the bona fide relationship and is not likely to succeed unless such proof exists.
Read about divorce in the "Petition to Remove the Conditions of Residence" Form I-751, which is the form one submits for removal of conditions, or you can download or read this form in pdf format from the INS HERE. (Please note: Attorney use is a "must" if petitioning based on divorce.)

In case your wondering what constitutes "good faith marriage":

The Service has previously determined that a variety of evidence may be used to establish a good-faith marriage, and a self-petitioner should submit the best evidence available. Evidence of good faith at the time of marriage may include, but is not limited to, proof that one spouse has been listed as the other's spouse on insurance policies, property leases, income tax forms, or bank accounts; and testimony or other evidence regarding courtship, wedding ceremony, shared residence and experiences. Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). Other types of readily available evidence might include the birth certificates of children born to the relationship; police, medical, or court documents providing information about the relationship; and affidavits of persons with personal knowledge of the relationship. Self-petitioners who submit affidavits are encouraged to submit affidavits from more than one person. Other types of evidence may also be submitted; the Service will consider any relevant credible evidence.

The Act does not define a "good-faith" marriage or provide guidelines for evaluating the bona fides of a marriage; however, persons applying for immigration benefits based on a marriage are generally required to establish that they entered into the marriage in good faith, and a significant body of case law has developed concerning the interpretation of this requirement. It has long been held that a marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage, cannot be recognized as enabling a spouse to obtain immigration benefits. Lutwak v. United States, 344 U.S. 604 (1953) and Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). A spousal petition will not be denied, however, solely because the spouses are not living together and the marriage is no longer viable. Matter of McKee, 17 I&N Dec. 332 (BIA 1980). The key factor in determining whether a person entered into a marriage in good faith is whether he or she intended to establish a life together with the spouse at the time of the marriage. The person's conduct after marriage is relevant only to the extent that it bears upon his or her subjective state of mind at the time of the marriage. Separation from the other spouse, even shortly after the marriage took place, does not prove, by itself, that a marriage was not entered into in good faith. Bark v. INS, 511 F.2d 1200 (9th Cir. 1975).

2. Regarding filing for removal of conditions based on battery, this would require an attorney to file, as proof would have to be offered to justify this claim. Spouses who are battered may not have adequate financial resources to have an attorney, in which case I recommend that they contact the local battered spouse shelter or various attorneys in their area, as some attorneys will do "pro bono" (charity) work occasionally.

3. Regarding adjustment based on "extreme hardship", here is a recent decision regarding extreme hardship:

Extreme Hardship defined by the Board of Immigration Appeals!
Decided March 11, 1999
(found at)http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/amended/3380.pdf
(2) The factors to be used in determining whether an alien has established extreme hardship pursuant to section 212(i) of the Act include, but are not limited to, the following: the presence of lawful permanent resident or United States citizen family ties to this country; the qualifying relative's family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.
(3) The underlying fraud or misrepresentation for which an alien seeks a waiver of inadmissibility under section 212(i) of the Act may be considered as an adverse factor in adjudicating the waiver application in the exercise of discretion. Matter of Tijam, Interim Decision 3372 (BIA 1998), followed.
(An attorney would be highly recommended for filing based on extreme hardship.)

Please note that IF the foreign spouse entered on some other kind of visa, there are additional options of filing a new adjustment based on a new marriage, OR filing for adjustment based on work. These options are not available to the K-1 spouse but do exist for other kinds of visas on which the foreign spouse may have entered the U.S.

[Pete E]

... in response to Can be true...but not really, posted by Georgina on Jul 26, 2001

Georgina,
Below is a response from Gary Bala,visa attorney.I sent him your post.It appears you are correct.I am surprised,I have seen so many posts about death and abuse being the womans only recourse.
Gary has a web site www.visa-attorney.com.His E-mail is Garybala@visa-attorney.com.
Gary has answered alot of questins for me and even called me in Cali when we we having trouble getting my step son out of Colombia after our Chrismas vacation(need fathers permission every time they leave)even though I didn't use his services in getting my spousal visa.My wife had an attorney in Colombia and I thought we were covered.Wrong,much time and money lost.

Here it is:

Thanks for thinking about me Pete.
I read over the information here and it is generally
accurate. I really don't have too much to comment on.
I have represented ladies with conditional residency
status on the I-751 Petition to Remove Conditions
based on divorce in less than 2 years following
a good faith marriage. The key is to prove the good faith
nature of the marriage at time of marriage with variety
and sufficiency of documents and other proofs.
Thanks again,
Gary Bala

[Pete E]

... in response to Re: From Gary Bala,it appears you are ri..., posted by Pete E on Jul 27, 2001

nt

[DallasTexas]

... in response to Can be true...but not really, posted by Georgina on Jul 26, 2001

The point of the comment is that if a lady marries you just to get in the country and the next day divorces you that she will be deported.

The point was that I can't see a woman going thru all of the steps and uprooting to get in the country and divorce someone the next day.

The earlier comment was that the K-1 prevents this type of thing and I really don't think that it does at all. If someone can go thru all that they can certainly wait longer if they have ill intentions.

[Wayne]

... in response to Explanation, posted by DallasTexas on Jul 26, 2001

If she files a false domestic violence charge on you,  she is in for good.  The INS doesn't investigate these, they just let the women stay.

Another change that needs to be made to our system.  I don't know if the Colombian ladies have done this much but the Russian girls have done this hundreds of times.  (A couple of my friends have 1st hand experience)  My point is that if you choose a really bad one, they are going to stay if you like it or not.

Take care,
Wayne

[Georgina]

... in response to Explanation, posted by DallasTexas on Jul 26, 2001

Oh, Of course she will be deported. The K-1 visa is another story. If she gets here on a K-1 visa and she doesn't marry the fiance and stay in the country. She is illegal. She can't not adjust status. Her adjustment is based on marrying the man who brought her in the Fiancee visa.If she doesn't marry the fiance she has to go back to her country if she ever wants to come back here in a legal way.

However, I don't think someone can be as stupid as trying to get divorced the next day because as my post below says she would have to show that she/he married in "good faith" and divorcing someone the "next day" wouldn't help him/her at all with the INS. What I want to tell you guys is that all of you who are interested in marrying or are married with a foreigner and specially if you have doubts about her "real intentions" or just for general knowledge should know what are your rights and her rights and what the law have to say about it. The same apply for the women. Most come here without knowing anything about it. What are her rights. I can't imagine someone coming here and not even knowing anything about it. For example, I have some friends here telling me that they are very sad and frustated because they will have to wait two years to go and visit their family in their native country. They don't know they can apply for advance parole and go to see their family as soon as the next month if they want. They don't know anything about Employment Authorization, etc. Things that will make easier their adjustment here. They just expect the husband will tell them about this things and many husband don't know about it either. You can always contact a lawyer but it is good to know it by yourself.

Before I came here. I read about everything. What was needed to be done. What forms would we need after the marriage occurr. What were my rights with respect to immigrating to this country. Not because I plan to leave my husband but because it was important for me to be aware of it. It is funny, because I was the one telling my husband what forms we needed, what documents we needed to send, how she should fill out the forms, etc. We have gone through the K-1 process and the Conditional residence process without problems and without a lawyer. I am not saying don't hire a lawyer. It depends of you, your case and what way you want to do it. In our case, we considered we didn't need one. Like you guys say. Your mileage may vary.

[JunFan]

... in response to Oh...for sure, posted by Georgina on Jul 26, 2001

Georgina,
How long after you were married did you recieve your green card or conditional resident status approval?  I'm not sure at this point what to expect.

TIA,
Mike

[Georgina]

... in response to Re: Oh...for sure, posted by JunFan on Jul 26, 2001

We applied on April 2000 and got it on September 2000. In the meantime, I got my Advance Parole and second Authorization to work.

[JunFan]

... in response to Not too long..., posted by Georgina on Jul 26, 2001

How long did it take for you to get advance parole and the work authorization?  How long or how many trips is the parole good for?

TIA

[Georgina]

... in response to Re: Not too long..., posted by JunFan on Jul 26, 2001

It took me one and a half month to get both. Advance Parole was good for one year (multiples entries). I don't know if it will work the same way for you. I live in Seattle and it was pretty fast for me.

The funny thing is that I paid about $200 for both application fees. Got them approved on June and after that got my conditional card approved on September. 3 months after the Advance Parole and EAD were approved.

Once you get the conditional green card you don't need the Advance Parole or the EAD. However, it was good for me to get them in case an emergency arised before I got the conditional green card and I was also working by that time and couldn't go 3 months without and EAD.

If your fiancee is going to take some to improve her English before working maybe you just will need to apply for her Advance Parole. I started working after one month of getting here so I needed to get the EAD after the one they gave me at the Port of Entry (Atlanta) expired.

[Pete E]

... in response to Can be true...but not really, posted by Georgina on Jul 26, 2001

Georgina,
I have heard of alot of what you posted but the"good faith" is a new one to me.I doubt that alone would keep her here.
I sent your post to Gary Bala(Immigration attorney) to see if he would be willing to comment.

Pete

[Georgina]

... in response to Re: good faith???,new one to me,I doubt ..., posted by Pete E on Jul 26, 2001

I thought also about the word "good faith" and looked for more information. You can check the INS web site. They use the word "good faith" Of course that alone won't keep her here but definetely it opens a door for her.

http://www.ins.usdoj.gov/graphics/howdoi/remcond2.htm

[Pete E]

... in response to Re: K1 is a good idea, IMO, posted by DallasTexas on Jul 26, 2001

I think there is also a 2 year rule after you get married on a fiance visa.
Also a couple we know got married when she was here on a tourist visa and the woman keeps telling my wife she doesn't know how lucky she is not having to deal with the hassles they have had.She recently had an interview and I guess they got approved.I think a 2 year clock starts here also,before the husband files for the 751,permanent resident.
Also,with the tourist visa thing,I believe you have to convince them you did not use the tourist visa to come and be with someone you already met in Colombia,which was actually the case here.I am told tourist visas are almost impossible to get now for a Colombian.The general advice is don't get married on a tourist visa,but you can do it,with possible problems.
If you overstay your tourist visa(you have to leave the country(US)every 6 months,you will not get back in if you leave and can be barred for 10 years.But,there is an amnesty going on that was supposed to end in April but is I think still alive,where a person who is here illegally can marry a citizen and become a resident.Because of this the US is getting much tougher on tourist visas,they don't want them to turn in to residents.

Pete

Pete