Finding an advice for me

[Hanka]

What is the name of your state?What is the name of your state? NJ/Czech Republic

Hello,

This is my situation: In May 2002 I got to the US on a J-1 Visa. It expired a year after but before that (march 2003) I applied for a change of status to F-1 and eventually I received an I-20 from INS last winter (December 2003) which was supposed to be valid until December 2005. In March 2004 I went to visit my family back in Czech Republic and had to apply for visa F-1 at the US embassy. I was two-times rejected. In the meantime I have a boyfriend back in the US, who is Czech but has a Green Card, lives in the US for 8 years and wants to stay there. After our involuntary separation he applied for an American citizienship (still waiting) and we will get married within three weeks.

We still don't know what is going to happen, if we do have a chance to be together again and if yes, then when? No one can give us a sufficient answer and advice. What should be the best solution for us to do to be as soon as possible together in NJ in our house again? Is there any safe and fast process that we should follow?

Thank you very much for your help and advice.

 

[ImmigAttyLana]

First of all, was your J-1 the kind that requires a 2-year home residency? If so, you cannot return to the US as an immigrant or even in a H-1B type employment-based visa until you either satisfy that requirement or obtain a waiver thereof. Secondly, even if not subject to this condition, if your visa was denied, you would have to reapply for another type of visa, if you are eligible. If you are not eligible for an employment based visa, your only option is to come to the US on a family-based petition. As long as your boyfriend is just your boyfriend and not a husband or at least a fiance, you cannot use the relationship for any immigration basis. And finally, until he gets his US citizenship, he cannot sponsor you for a visa that will be of any benefit to you immediately, even if you are married. If you are married, you are DEFINITELY NOT going to get a F-1 visa if you apply again. You will need to wait for him to get his citizenship before he can sponsor you for a spouse visa and this is likely to take about 8 months or so, at best.

Please let me know if you have any additional questions or need further assistance with this matter.

 

[Hanka]

Thanks

Thank you. First of all, he is my fiancee, I didn't use correct word in the original question.
I have 3 more specific questions:

1) Is there any chance I get turist visa to come to visit my husband after we get married in 2 weeks? (I will have new name and passport and my situation will be different from when I asked for the F-1 visa this March).

2) My fiancee spoke to a lawyer and he advised him to get married asap even before the citizenship and then, when he is citizen, use K type viza to bring me as wife faster then with regular petition for bringing wife. How does this work and is it true?

3) Is there any other chance for me to come to US and life together with my husband? On any status for that matter.

We really appreciate your answers, as we are almost desperate to be together. Thank you.


NOTE: He applied for citizenship in May 2004, more then 4 months ago and had done fingerpriting 2,5 months ago.

 

[ImmigAttyLana]

1) Is there any chance I get turist visa to come to visit my husband after we get married in 2 weeks? (I will have new name and passport and my situation will be different from when I asked for the F-1 visa this March).
NO, YOU ARE NO LONGER ELIGIBLE TO TRAVEL ON A TOURIST VISA IF YOU ARE MARRIED TO A US CITIZEN OR US PERMANENT RESIDENT. YOU WILL NEED TO WAIT UNTIL HE GETS HIS CITIZENSHIP AND FILES ON YOUR BEHALF BEFORE YOU WILL BE ABLE TO LAWFULLY ENTER THE US.
2) My fiancee spoke to a lawyer and he advised him to get married asap even before the citizenship and then, when he is citizen, use K type viza to bring me as wife faster then with regular petition for bringing wife. How does this work and is it true?
YOU CAN GET MARRIED AT ANY POINT, BUT NOTHING IS GOING TO HAPPEN ANY FASTER UNTIL HE GETS HIS CITIZENSHIP. IN OTHER WORDS, IF YOU MARRY NOW, HE CAN FILE THE I-130 ON YOUR BEHALF AS A SPOUSE OF A US PERMANENT RESIDENT BUT THAT WILL NOT CONFER ANY IMMEDIATE BENEFIT ON YOU. YOU WILL STILL NEED TO WAIT UNTIL HE GETS HIS CITIZENSHIP AND THEN FILES FOR THE K-3 VISA (SPOUSE VISA) WHICH CURRENTLY TAKES ABOUT 6-9 MONTHS TO BE PROCESSED, YOU WILL NEED TO GO THROUGH THE INTERVIEW AT THE CONSULATE IN YOUR HOME COUNTRY AND ONLY AFTER THAT WILL YOU BE ABLE TO ENTER THE US TO CONTINUE YOUR PERMANENT RESIDENCE PROCESS.
3) Is there any other chance for me to come to US and life together with my husband? On any status for that matter.
IF YOU ARE OTHERWISE ELIGIBLE FOR AN EMPLOYMENT-BASED VISA, THEN YES, YOU CAN COME TO THE US ON THAT VISA AND IN THAT CASE IT WILL NOT MATTER THAT YOU ARE MARRIED TO A US PERMANENT RESIDENT SINCE MOST OF THE EMPLOYMENT-BASED VISAS ALLOW FOR DUAL IMMIGRANT INTENT.

PLEASE LET ME KNOW IF YOU HAVE ANY ADDITIONAL QUESTIONS OR NEED FURTHER ASSISTANCE WITH THIS MATTER.

 

[Hanka]

Dear Lana,

Thank you so much for your help!!! It is so good to finally know, what our situation looks like. I have couple more questions to be clarified

What are the conditions for getting H1 (or H1-B) visa (that is the employement visa, correct?) Does the fact that my F-1 was rejected influences getting H1? Do I have to have work arranged and/or sponsor to get it or can I just get the visa? That seems to be faster way to get to the US then waiting for the citizenship and K-3 to go through. Also, I'm not sure if it matters, but I'm Czech, currently living in Czech Republic.

Also, some people suggest writing to a politician would help. In your experience, does it help to speed up citizenship process and how to go about it?

Do you think at this point a lawyer would help us to make any of the processes to reunite us faster? Do you perhaps know someone good in NJ (or NY) we could go to in case we need to?

One more thing... I forgot to answer you last time - I believe my J-1 visa has the 2-year residency requirement. Does it affect the return as a wife of a US citizen process or the employement based visa? When do I get the waiver - is it from my country or from US CIS?

Lana, thank you again. I don't know how to show how much I appreciate your assistance.

 

[ImmigAttyLana]

What are the conditions for getting H1 (or H1-B) visa (that is the employement visa, correct?) Does the fact that my F-1 was rejected influences getting H1?
NOT NECESSARILY SINCE THE REQUIREMENTS FOR THE F-1 AND THE H-1B ARE VERY DIFFERENT.
Do I have to have work arranged and/or sponsor to get it or can I just get the visa?
THE EMPLOYER MUST FIRST FILE THE H-1B PETITION WITH THE USCIS IN THE US THAT IS APPROVED AND WITH THAT APPROVAL, YOU WOULD GO TO THE US CONSULATE IN PRAGUE TO APPLY FOR THE H-1B VISA.
That seems to be faster way to get to the US then waiting for the citizenship and K-3 to go through. Also, I'm not sure if it matters, but I'm Czech, currently living in Czech Republic.
NO, YOUR CITIZENSHIP DOES NOT PLAY A ROLE IN THIS. AS LONG AS H-1B VISAS ARE STILL AVAILABLE FOR THE FISCAL YEAR IN WHICH THE PETITION IS FILED AND THE PETITION IS APPROVED, YOU CAN APPLY FOR THE VISA.

Also, some people suggest writing to a politician would help. In your experience, does it help to speed up citizenship process and how to go about it?
NOT UNLESS IT HAS BEEN MUCH MORE TIME THAN THE PROCESSING TIMES ON THE USCIS WEBSITE INDICATE. ONLY IN THOSE TYPES OF SITUATIONS CONTACTING A CONGRESSMAN MAY BE OF USE BUT EVEN THEN IT IS NOT GUARANTEED THAT IT WILL HELP. H OWEVER, AS LONG AS PROCESSING TIMES ARE IN COMPLIANCE WITH THE PUBLISHED DATA FROM THE USCIS AND THERE ARE NO ERRORS ON THE PART OF THE USCIS WITH REGARD TO THE PETITION, A CONGRESSMAN IS UNLIKELY TO INTERVENE.
Do you think at this point a lawyer would help us to make any of the processes to reunite us faster? Do you perhaps know someone good in NJ (or NY) we could go to in case we need to?
A LAWYER CANNOT DO ANYTHING IN YOUR CASE IF THERE IS NOTHING YET TO BE DONE. YOU CAN CERTAINLY CONSULT WITH AN ATTORNEY TO COME UP WITH A GAME PLAN, BUT THERE IS NOTHING AN ATTORNEY CAN DO THAT IS NOT IN KEEPING WITH THE IMMIGRATION LAWS AS THEY CURRENTLY EXIST.

PLEASE LET ME KNOW IF YOU HAVE ANY ADDITIONAL QUESTIONS OR NEED FURTHER ASSISTANCE WITH THIS MATTER.
One more thing... I forgot to answer you last time - I believe my J-1 visa has the 2-year residency requirement. Does it affect the return as a wife of a US citizen process or the employement based visa? When do I get the waiver - is it from my country or from US CIS?

 

[Hanka]

Dear Lana,

I have couple more questions regarding my situation.

1) You probably didn't notice the last part of my previous communication:
I believe my J-1 visa has the 2-year residency requirement. Does it affect the return as a wife of a US citizen process or the employement based visa? When do I get the waiver - is it from my country or from US CIS?

2) We were thinking to petition for me as a wife of permanent resident and then, once my husband gets his citizenship to upgrade the request to petition as citizen. Supposedly it helps to save some time at least a little bit. The petition could be with CIS several month earlier. Should we do this or wait and petition for wife after the citizenship happens?

Lana, thank you a lot for your help.

 

[evcalyptos]

1) Is there any chance I get turist visa to come to visit my husband after we get married in 2 weeks? (I will have new name and passport and my situation will be different from when I asked for the F-1 visa this March).
NO, YOU ARE NO LONGER ELIGIBLE TO TRAVEL ON A TOURIST VISA IF YOU ARE MARRIED TO A US CITIZEN OR US PERMANENT RESIDENT. YOU WILL NEED TO WAIT UNTIL HE GETS HIS CITIZENSHIP AND FILES ON YOUR BEHALF BEFORE YOU WILL BE ABLE TO LAWFULLY ENTER THE US.

Lana,
"no longer eligible" or "unlikely to gain a visa or entry"?

Can you point me to the rule that shows that "someone married to a US Citizen is ineligible to travel to the US as a tourist" or let me know if I've misunderstood what you are saying here.

Thanks.

 

[ImmigAttyLana]

It has to do with immigrant intent. If there is immigrant intent, a B-2 visa will not be issued. Once married to a USC, a foreign national is PRESUMED to have immigrant intent and, unless they can overcome that presumption with significant evidence pointing to the contrary (difficult burden), they will not be issued the B-2 nonimmigrant visa. See the Foreign Affairs Manual for admissibility classes/categories eligible for B-2 visa.

Please let me know if you have any additional questions.

 

[Hanka]

Dear Lana,

I am trying again. You have probably overlooked my questions from yesterday because of another question there. Can you please help advise me on these matters?

1) You probably didn't notice the last part of my previous communication:
I believe my J-1 visa has the 2-year residency requirement. Does it affect the return as a wife of a US citizen process or the employement based visa? When do I get the waiver - is it from my country or from US CIS?

2) We were thinking to petition for me as a wife of permanent resident and then, once my husband gets his citizenship to upgrade the request to petition as citizen. Supposedly it helps to save some time at least a little bit. The petition could be with CIS several month earlier. Should we do this or wait and petition for wife after the citizenship happens?

Lana, thank you a lot for your help.

 

[ImmigAttyLana]

1) You probably didn't notice the last part of my previous communication:
I believe my J-1 visa has the 2-year residency requirement. Does it affect the return as a wife of a US citizen process or the employement based visa? When do I get the waiver - is it from my country or from US CIS?
YES, IT MOST DEFINITELY WOULD AFFECT YOUR ABILITY TO RETURN TO THE US AS A WIFE OF A US CITIZEN. YOU WOULD NOT BE ABLE TO DO THIS UNLESS OR UNTIL YOU EITHER SATISFIED THE 2- YEAR HOME RESIDENCY REQUIREMENT OR OBTAINED A WAIVER THEREOF. THE WAIVER IS OBTAINED FROM THE US BASED ON EITHER A NO OBJECTION LETTER FROM YOUR HOME COUNTRY OR FROM THE DEPARTMENT OF STATE IN THE US, DEPENDING ON THE BASIS FOR THE WAIVER REQUEST.
2) We were thinking to petition for me as a wife of permanent resident and then, once my husband gets his citizenship to upgrade the request to petition as citizen. Supposedly it helps to save some time at least a little bit. The petition could be with CIS several month earlier. Should we do this or wait and petition for wife after the citizenship happens?
IT REALLY DOES NOT SAVE ANY TIME AT ALL IN THIS CASE. BUT GIVEN THE POSSIBLE 2-YEAR HOME RESIDENCY REQUIREMENT, YOU WANT TO MAKE SURE YOU HAVE THAT TAKEN CARE OF SO THAT YOU CAN FILE FOR PERMANENT RESIDENCE ON THE BASIS OF YOUR MARRIAGE ONCE HE GETS HIS CITIZENSHIP.

PLEASE LET ME KNOW IF YOU HAVE ANY ADDITIONAL QUESTIONS OR NEED FURTHER ASSISTANCE WITH THIS MATTER. SORRY FOR HAVING OVERLOOKED THIS PORTION OF YOUR QUESTION PREVIOUSLY.

 

[Hanka]

Dear Lana,

Thanks again for the answer. This brings another question. I was in US on J-1 from May 2002 for one year till May 2003. Before it expired I requested change of status to F-1 that was approved in September 2003 and then I studied in a college till March 2004 when I went to visit my family and could not go back as my request for F-1 visa at the embasy was rejected (despite the approval for the change of status from CIS half year before).

1) When does the 2 year period I have to be out of US start? At the end of J-1 visa or when I left US (already with F-1 status)?

 

[ImmigAttyLana]

Your 2-year home residency starts when the J-1 program ends. It can be done in the aggregate and does not have to be a cumulative 2-year period. Therefore, if you are able to obtain a visa like f-1 and enter the US, the time you have already spent in your home country before the F-1 entry WOULD count toward the 2-year home residency requirement, but if it is not 2 years, you would still need to spend time to make the total a 2-year period.

Please let me know if you have any additional questions or need further assistance with this matter.

 

[Hanka]

Lana, does that mean that my two year home residency period will be over in May 2005 (two years after my J-1 expired) even if I stayed in the US until March 2004 on I-20?
Can you please tell me where I can obtain the waiver to the J-1 visa or what do I have to do to get it?

Thank you very much for your help.

 

[ImmigAttyLana]

No, it means that it will be a total of 2 years that you have to be outside the US. It does NOT have to be consecutive 2 years, so if you spent 6 months outside the US already, then you only need to spend another 1.5 years outside the US and you can do it all in one stretch of time or in several month increments or anything in between. The time you spent in the US in a different status like the F-1 does NOT count toward the fulfillment of your 2-year requirement.

As for the waiver, it really depends on what type of waiver you would be seeking. You can find out the information on this on the Department of State website.

If you have any additional questions or need further assistance with this matter, please let me know.