A Guide to K1 and IR-1/K3 Visa Procedures.
A step-by-step overview of the whole immigration process,
For American pen-pals, fiancés, and spouses of Filipinas.

This guide also discusses
F1/M1 (Student), H1-B (Work), and B1/B2 (Tourist) Visas

 

SITE: Disclaimer. The weak points of this document, and the parts of the Visa Process that can change suddenly.


Page 3

Introduction

 

Page 1

 

SITE: Disclaimer. The weak points of this document, and the parts of the Visa Process that can change suddenly.

K1: A quick introduction to the K1 Process! This is where K1 Folks Need to start reading

K1: K1 items the Filipino fiance must provide. Don't leave without these!

K1: K1 items the American Petitioner must gather. Items that you'll need for the petition.

K1: K1 items for "Special Cases". Uncommon and Rarely Required Documents.

K1: The Step-by-Step K1 Instructions to provide your Fiance

K1: Visual K1 Glossary Sample Pictures of a Visa, CFO Stamp, CFO Certificate, and I-94.

 

Page 2

 

ALL: The USCIS ADIT Photo Definition and Specifications

ALL: 25+ Documents Form examples, Documents, Pictures stored in this directory for reference

K1: The K1 Letter of Intent A template that you can use.

K1: The K1 Cover Letter Template - The Blueprint for your K1

ALL: The St. Luke's Experience - Tell your girl, "What to expect."

AOS: An AOS (Adjustment of Status) Guide & Checklist

AOS: A Sample AOS Interview Notification Letter and Checklist.

SSN: How to apply for a U.S. Social Security Number (SSN)

SSN: Social Security Administration Memo: RM 00204.450 - Evidence of Nonimmigrant Status for an SSN Card

SSN: Social Security Administration Memo: RM 00203.500 - Employment Authorization for Non-immigrants

Page 3 (You are here)

ALL: The Total Cost of the Immigration Process From Start to Finish

ALL: The USCIS General Tips on Assembling Applications for Mailing - How to organize your petition

B1/B2: Why tourist visas are difficult and DANGEROUS to use for marriage - Includes 30/60 Rule.

F1/F2: Why Student F-1/M-1 Visas are not a good immigration method for Fiancés

H1-B: Why H1-B Work Visas are not a good immigration method for Fiancés

FAMILY: Why bringing Mom/Dad/Sister/Brother/Children(18+) from the Philippines is not realistic

RIR: How the RIR (Reduction in Recruitment) Health Visa could get a relative over in 2-4 years

Page 4

IR-1/K3: How to marry in the Philippines - The IR-1/K3 Visa Process (Step-by-Step, Updated Feb 2004)

INFO: Travel Idea - Packing for your trip! INFO: Travel Idea - Vaccinations & Inoculations 





The Total Cost of the Immigration Process From Start to Finish

The whole immigration process can be really expensive. And, if you don't have enough money, even getting her here can be quite an expense. But, if you start out with faith, most folks manage to complete the process with a little here... and a little there.

This might be scary, but I want to give a complete accounting of potential expenses. You can cut or reduce some, and some are inflexible. This is the most extensive list of "everything I can think of." Before taking the first step, you should read through it and do some personal calculations.

One time expenses:

  • $800-3000 - Your one time trip to see her (required by K1, you must meet in person) Include money for accommodations trips, gifts, etc...
  • $800-3000 - Your return trip to marry her (if you decide K3/IR-1 and don't marry on your first trip!)  Include money for accommodations honeymoon, gifts, etc.
  • $25 for various ADIT / Passport photos needed along the way (Her)
  • $25 for various ADIT pictures for you (4 total -- 2 for K1/K2/IR-1 Petition & 2 for AOS)
  • $110 for I-129F (K1 application if you go this route)
  • $15-50 - Fees for obtaining State certified copies of your Birth Certificate, Divorce Decrees, or other things you may need to include in your I-129F Petition.
  • $110 (estimated per person) for round-trip plane tickets for CFO Seminar (Manila/Cebu) required to get passport. Double if sending chaperone.
  • $??? Stay in Cebu/Manila for CFO Seminar
  • $2 for CFO Seminar Fee
  • $50 for Passport application
  • $25 for 4 Birth Certificate copies at NSO
  • $110 (estimated per person)  for round trip plane tickets to Manila for St. Luke's visit (Double if sending chaperone.
  • $??? Hotel/taxi/overnight expenses for St Luke's Visit - Requires 2 days minimum stay in Manila
  • $??? Hotel/taxi/overnight expenses for Embassy Interview Visit (Interviews are now one to six weeks after medical exam. You may also have to pay for a 2nd airline ticket if you decide it is cheaper for your lady to return home between the Medical Exam and Embassy Interview).
  • $100 for Pink Receipt(Visa Petition Fee that you take to St. Luke's)
  • $85 for St. Luke's Exam
  • $110 (estimated per person) for round trip to get CFO Stamp after Visa is issued unless you plan on doing it on your way out of the country.  Then exchange this for the cost of a hotel and 1-2 days stay to ensure you get it)
  • $2 for CFO Stamp Processing Fee
  • $800-4000 - For her to travel to the US Alone or For you to go to the Philippines to escort her back when visa is approved. It's dangerous to buy them before you have the Visa in hand, and unless you are willing to wait after it is... tickets on short notice can be expensive!
  • $35 for a marriage license back in the states
  • $0-$10,000 for a wedding depending on whether you go for a Civil Ceremony or a church wedding
  • $255-595 to file for adjustment of status forms the day after you get married (with 90 days of entering the country). If planning on filing Advance Parole, Work Authorization, and AOS, then use the $595 number.
  • $50 for finger printing fee related to Adjustment of Status
  • $16-25 to get a new Department of Transportation ID for your lady
  • $??? - Does he have a cell phone? You may want to get her one on your first visit
  • $??? - Did she have to quit a job? You may have to replace the income while she runs to perform the tasks required to get the visa
  • $0-500+ one time costs to buy warm clothes, close-toed shoes, fleece, an electric blanket, rice cooker, and various other things that she may not have because she lives in a tropical climate.
  • $0-1000 for one time medical check ups, dental checkups, doctors visits, etc if she is from a poorer family and she has some health needs when she arrives.
  • $0-100 so she can throw a going away party to say good-bye to all of her friends.  This will inevitably happen.

And these recurring lifetime expenses:

  • $20-500/month phone bills during visa process depending on whether you use Phone Cards or call direct without realizing the costs.
  • $0-40/month before she arrives to send her so she can visit Internet Cafes to email you or buy cell cards to call and/or text you.
  • $50-100/month more per month for food expenses for two people instead of one after you get married
  • $25-75/month in miscellaneous expenses (toiletries, clothes, personal items, incidentals) to cover your ladies expenses after marriage
  • $??? monthly remittance to her family after marriage
  • $??? monthly long distance so she can talk to her family after marriage
  • $??? monthly cost of birth control (not covered by insurance)
  • $??? monthly cost of life insurance premiums so you can protect her
  • $??? employer charge to go from Single Health insurance to Family health plan if you are not automatically offered Family protection by your employer
  • $100-500 if you decide to put her into drivers education classes
  • $??? if you decide to buy another car so she has her transportation after she gets her license
  • $??? monthly increase in your car insurance for having another driver
  • $??? monthly entertainment costs. When your girl first arrives, you will probably start the equivalent of "dating" even though you are newly weds!

This is updated from a previous post. Now, you know how much of a PLANNING freak I am. I tried to cover everything I could think of.





Why tourist visas are nearly impossible to get and DANGEROUS to use for marriage

Tourist Visas come up every now and then. I wanted to get this into a legible order for future use. Some of this is a "repeat" but this is the first time it's all consolidated into a single posting.

Before you read my notes, there is an excellent article titled "Apples in the Apple Crate; Oranges in the Orange Crate - B-2 Tourists, F-1 Students and Others vs. K-1 Fiancees" at http://www.loveme.com/visa/b2andk1.htm. This article explains why tourist visas are so hard to get for any type of immigrant and why the US Government is so picky about these types of visas. If you are seriously thinking about using a Tourist Visa to marry, you really need to read the article first.

As most folks on ASAWA say, the "Tourist Visa" is the holy grail of visas in the Philippines. Even famous artists and some affluent folks have not been able to get them. In general, the USCIS classifies Filipinos as a "High Flight Risk" when considering Tourist Visas. To qualify, a Filipino must (among other things) prove that they have " compelling reasons to return to the Philippines". Generally this means a big bank account, properties, and/or community ties.

These requirements alone, make it a generally impractical way for most Filipinas to enter the country.

The vast majority of non-immigrant visa applications received at the US Embassy in Manila are for tourism or business travel. B1 visas are for business, including such things as a need to consult with business associates, negotiate a contract, buy goods or materials, settle an estate, appear in a court trial, and participate in business or professional conventions or conferences. Or, where an applicant will be traveling to the United States on behalf of a foreign employer for training or meetings. The individual may not receive payment (except for incidental expenses) from a United States source while on a B1 visa.

B2 visas are issued for general pleasure/tourist travel, such as touring, visits to friends and relatives, visits for rest or medical treatment, social or fraternal conventions and conferences, and amateur/unpaid participants in cultural or sports events.

In most instances, consuls will issue a combined B1/B2 visa, recognizing that most business travel will also include tourist activities.

Most B1/B2 visas issued in Manila are "Multiple/10," which means that the visa holder may make multiple entries to the United States during the visa's ten-year period of validity. Consular officers may, however, issue more limited visas under certain circumstances.

B1/B2 applicants may wish to bring the following documents:

  • Bank Statements or passbooks showing account activity, including your old passbooks as well as current
  • Bank Certifications of accounts showing current balances
  • Credit Card Statements going back at least three months, or more if available
  • Income tax returns from the prior year, including bank receipt of payment and Community Tax Certificate
  • Business persons should bring a Department of Trade and Industries certificate and records showing business activity (e.g. invoices, payments, payroll records)
  • Original Land Titles (no copies)
  • NSO issued Birth Certificates and/or Marriage Certificates on security paper (not Local Registrars)
  • DSWD Certificate for Minor to Travel Abroad or Parental Travel
  • Permit (See Frequently Asked Questions for more information)
  • Professional License (PRC card, Membership in the Bar, etc.)

Please note: All documents must be originals. Photocopies will not be accepted.

Demonstrating Ties:
Applicants must be able to demonstrate to the interviewing officer that they have ties - economic, social, or other - that will cause them to return to the Philippines following their visit to the United States. This is true whether you apply through the Courier Drop Box or appear for an interview.

Why its a bad idea to marry on a Tourist Visa:

This information is laid out at the following address:
http://k1.exit.com/touristframes.html

A major reference of this web site coverers the 30/60 day rule posted by a "non-lawyer" on usenet at:

http://britishexpats.com/forum/showthread.php?s=&threadid=100004

This document explains the 30/60 day rule in plain English. The actual law is in pages 4,5, & 6 of the department of state document at:

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

As far as Tourist Visa's go, here are some of the FAQ questions from the US Embassy web site in Manila at:
http://usembassy.state.gov/posts/rp1/wwwhniv5.html

Q: I presented all the documents I was told to bring, but my application was turned down anyway. What else could I bring?
A: Officers interview the applicant, not the documents, and refer to documents only if they can provide some additional insight into your situation. If there are additional documents required, the officer will indicate that during the interview.

Q: What constitutes evidence of income?
A: Please see the What to Bring To An Interview section for more information.

Q: Is it acceptable to submit an authenticated birth certificate/marriage contract from the National Statistics Office (NSO) in lieu of the NSO certificates on security paper? It takes a while before we can get these documents from NSO.
A: We only accept birth certificates/marriage contracts from NSO issued on security paper.

Q: If I present a letter of guarantee of return from a person of high stature, will I get a visa?
A: A letter, even from a highly placed person, does not necessarily establish the applicant's ties outside of the United States. U.S. law requires each applicant to qualify for a visa in his or her own right.

Q: Will it help my application if I present a letter from my relative's U.S. Congressman or Senator?
A: Such letters will be considered, but do not guarantee issuance of the visa for an applicant otherwise deemed unqualified.

Q: Isn't it better not to disclose that I have close relatives living in the U.S., that I have an immigrant visa petition on file, or that I have previously been denied? What are the consequences if I conceal or misrepresent information or submit fraudulent documents?
A: Full disclosure is best. We understand that many people have relatives in the U.S. but intend only a short visit, or have immigrant visa petitions on file but do not plan to immigrate at this time. It is therefore to the advantage of the applicant to disclose these facts. When an interviewing officer uncovers any attempt to conceal or misrepresent facts, the application will be denied and the applicant may in certain cases be ruled permanently ineligible to enter the United States.

Q: I don't have an original copy of my Land Title because it is mortgaged with the bank. Should I buy a substitute title so I can present something at the interview?
A: Never purchase documents to present at your interview. The genuine documents in your possession provide you a better chance of qualifying for a visa, whether now or in a future application. When an interviewing officer uncovers any questionable documents or attempts to misrepresent facts, the application will be denied and the applicant may in certain cases be ruled permanently ineligible to enter the United States.

Q: I am an only child and must therefore return to the Philippines after studying in the U.S. so I can take care of my parents. Why did the officer say I have insufficient ties to compel me to return?
A: Experience has shown that being an only child has not deterred some travelers from remaining indefinitely in the U.S. While this factor may be relevant to an individual's personal circumstances, it would not usually, in itself, be sufficient to establish eligibility.

Q: Can I mail or fax in information about my application in advance of my interview?
A: Due to the large number of applications we receive, it is impossible for us to match up correspondence with applications. You should bring any information relevant to your application to the interview. Any supporting documentation should be as brief and concise as possible, as the consular officer does not have time to read a lengthy letter.

Q: What are the allowable uses of a B1/B2 Visa?
A: The B1 visa allows for temporary visitors to conduct business in the U.S. This includes such things as a need to consult with business associates, negotiate a contract, buy goods or materials, settle an estate, appear in a court trial, and participate in business or professional conventions or conferences. This visa does not generally allow for gainful employment. The B2 visa is issued for the purpose of touring, visits to friends and relatives, visits for rest or medical treatment, social or fraternal conventions and conferences, and amateur/unpaid participants in cultural or sports events.

Q: I am a U.S. Citizen and would like to bring a relative over to provide companionship and domestic help for an indefinite period.
A: United States Citizens and Legal Permanent Residents may not employ B-1/B-2 visa holders in the United States. While we will sometimes issue visas to allow applicants to provide short-term assistance to family members (e.g. a parent helping a U.S.-based son or daughter with a newborn), the applicant must still demonstrate to the consular officer that he/she has a residence in the Philippines that he/she does not intend to abandon.

Q: I have an immigrant petition on file. Can I still qualify for a tourist visa?
A: There are so many different situations regarding persons who have been petitioned to immigrate that the best answer is "It Depends." While the existence of an immigrant petition is in one sense evidence that you are an intending immigrant, and thus subject to refusal, we also recognize that you may not be intending to immigrate at this time. Having an immigrant petition on file is not grounds for an automatic refusal, but as an applicant you will need to provide strong evidence that you intend to leave the United States after your planned visit.

Q: I am a former Legal Permanent Resident of the United States. Can I now obtain a tourist (B-1/B-2) visa?
A: You may apply for a B-1/B-2 visa, but must surrender your "Green Card" before one can be issued. You may do this at the Immigration and Naturalization Service (Window # 35 in the Immigrant Visa Section). If time permits, please do this prior to your NIV interview.

Q: For how long is a tourist visa valid?
A: B-1/B-2 visas issued to Philippine citizens are generally for multiple entries and valid for 10 years, unless the consular officer feels there is cause to issue a more limited-duration visa. Other classes of visas typically have shorter durations. The length of validity for other nationalities varies.

Q: How long can I stay in the United States?
A: The period of your stay is determined by the Immigration and Naturalization Service (INS) officer at the U.S. Port of Entry, not by the consular officer who issues the visa. . USCIS generally grants permission for the visitor to remain in the US for the amount of time needed to accomplish the purpose of the visit. If you wish to remain beyond the time granted, you must submit a request for extension to the INS. Failure to do so could result in your being ineligible to enter the United States again.

Q: If refused, how soon can I apply again?
A1:If you are refused under Section 221(g) of the Immigration and Nationality Act and are requested to provide additional information or supporting documents, you will receive a sheet outlining what you need to present and instructing you on when you may return. You will not need to make another appointment or pay another application fee.

A2: If you are refused under Section 214(b) or any other section, you may reapply as soon as you can pay the application fee and secure an appointment through our telephone appointment system. While on a second interview you will meet with a different officer, please be aware that you must still demonstrate strong ties to your country. In most cases it is better to wait until your personal circumstances have changed significantly before reapplying. Quick re-applications based largely on the hope of finding a consul more inclined to issue will likely result in refusal.

Q: I only want my fiancé/fiancée to meet my family...
A: While it is understandable that you might wish to do this, a foreign national engaged to a U.S. citizen must still prove that s/he is not an intending immigrant. This is usually difficult to do, however, as the fact that an individual is engaged to a U.S. citizen is usually considered evidence of an intent to immigrate.

Q: I was told by a travel agent that immigrant visas are hard to get, and my wife should go into the U.S. with only a tourist visa...
A: Unfortunately there are people who, usually for a tidy sum of money, will offer inaccurate or bad advice. Such advice can, at best, waste time and distract you from the necessary paperwork. At worst, it can lead to fraudulent statements that can see your new spouse found ineligible for any visa to travel to the U.S. It is always the type of travel-- a short visit or a new life living and working in America-- which governs what visa is appropriate.

Immigrant visas do require more time and preparation than a simple tourist visa, but in the end will allow you and your spouse to begin your new life in the U.S. without the worry and hardships that fraud can place on your relationship. If you begin early, and follow the instructions carefully, your new spouse can begin life in the U.S. with legal permanent resident status that will allow him/her to live, work or study as desired. LPR status is also the first step toward naturalization, the process by which a foreign person becomes an American Citizen.

However, under the new LIFE Act, there are now some instances where spouses and children are eligible for a special Non-Immigrant visa while waiting for their Immigrant Visa. For information on the new K and V visas, and to find out whether you qualify for them, please see the Immigrant Visa Section.

Q: Should I buy my plane ticket before getting a visa?
A: We do not recommend purchasing tickets before qualifying for a visa. Should you choose to make such arrangements, we advise you to make a refundable reservation. Prior to making any final arrangements and payments, you should make certain to have a visa. The fact that you have already committed funds to a trip does not compel a consular officer to issue you a visa if you are not otherwise qualified.

Q: I have a valid B-1/B-2 visa in my official passport. I will now travel using my regular passport. Will I need another visa in my regular passport?
A: Simply staple the official and regular passports together and you can travel to the U.S. anytime. However, you may apply for a B-1/B-2 visa in your regular passport. You will have to pay the application fee and submit completed applications as well as proof of income.

Q: How can a company be included on the list of preferred companies of the U.S. Embassy Nonimmigrant Visa Branch?
A: Companies interested in participating in the "Preferred Company Program" should mail their company profiles to the Nonimmigrant Visa Branch, 1201 Roxas Boulevard, Ermita, Manila, Attention: Preferred Company Program. After review, if it appears your company will qualify for the program, we will mail you an application form. Once you return the application, if accepted, we will mail you a notice of acceptance. See also the Preferred Companies page.

--------------------
IMPORTANT NOTE OF ALL CONTENTS OF THIS PAGE:
IF the immigrant has ANY complicating or "adverse" factors, such as

  • Having lied to an Immigration or U.S. Consular officer at any time including before or after entrance into the US (this includes when the immigrant may have applied for a tourist visa or entered at the port of entry),
  • having a previous criminal record inside or outside the US, or
  • having a serious medical problem such as HIV/AIDS or a medical condition which might lead to inability to work (eg, might lead to the immigrant being a "public charge" or "ward of the state"),

THEN consultation with an immigration attorney is definitely recommended prior to proceeding with adjustment of status from a tourist visa or visa waiver.
--------------------

Marrying on a tourist visa

Q: I am in the U.S. as a tourist. Can I marry my U.S. Citizen boyfriend/ girlfriend and adjust my status to that of a permanent resident (green card holder) without leaving the U.S.?

A: Generally, the answer is yes. However, if you have any complicating factors such as obtaining your visa fraudulently, lying to an USCIS or consular officer, a previous criminal record, or HIV/AIDS or other serious diseases, then you should FIRST consult an attorney before filing for adjustment of status. When in doubt, ALWAYS consult an immigration attorney before marriage and before filing for adjustment of status.

Q: But what is the K-1 Fiancé visa, or I-130 spousal visa for? Don't I need one of those?

A: Those visas are designed for aliens who are NOT in the U.S., who desire to enter the U.S. as Fiancés or spouses of U.S. Citizens. They may NOT be necessary, if the alien is already in the U.S. as a tourist and then decides to marry a US citizen, and IF the case has no complicating factors such as obtaining your visa fraudulently, lying to an USCIS or consular officer, a previous criminal record, or HIV/AIDS or other serious diseases.

Q: I entered as a tourist, but not with a tourist visa. I entered under the VWPP (visa waiver). Can I still marry, stay, and Adjust Status?

A: Generally, yes. Although in general, VWPP entrants cannot change or adjust status, a specific exception is made for Immediate Relatives (including spouses) of U.S. Citizens. See the I-485 form instructions, read the part about who is ineligible to adjust status, pan to the part where it mentions visa waiver. BE AWARE OF THIS: If a person who entered on visa waiver and filed for adjustment of status based on marriage to a US citizen is found NOT adjustable at the time of the interview, that person can be deported immediately without any legal recourse. The reason for this is that when one enters the US on visa waiver, he/she signs away his/her rights to legal recourse. So one should consider proceeding with adjustment of status from visa waiver ONLY IF their case is simple and uncomplicated.

Q: I entered as a tourist from Canada with no documentation because I am a Canadian citizen. Can I still marry, stay, and AOS?

A: Generally, yes. Canadians who enter without a visa may still AOS without having to submit the I-94 or I-94W form normally required from other aliens who must enter with a visa or under the VWPP. Again, one should consider proceeding with adjustment of status from visa waiver ONLY IF their case is simple and uncomplicated.

Q: I entered as a tourist but have overstayed my visa. Can I still marry, stay, and AOS?

A: Generally yes. Immediate Relatives of U.S. Citizens are permitted to file for adjustment of status, even if they overstayed their original entry, or did not maintain their original status. It does not matter if the overstay was for years, as long as the alien can demonstrate that they entered the U.S. legally by submitting their original I-94 or I-94W form (exception made for Canadians, of course). However, USCIS will likely want an explanation for the overstay, and the foreign spouse may benefit from using attorney services in this situation. Again, one should consider proceeding with adjustment of status from visa waiver ONLY IF their case is simple and uncomplicated.

Q: What if I lost my original I-94 or I-94W form? Or I never got one?

A: A replacement can be obtained by filing the I-102 form.

Q: I entered the U.S. not as a tourist, but as a student (F) or a worker (H,L,TN) or other visa. Can I still marry, stay, and AOS?

A: With a few exceptions, yes. As long as you entered the U.S. LEGALLY, you may still AOS, regardless of the length of time that has passed since your original entry. Your I-94 form proves your legal entry. However, be aware that applying for adjustment of status within the first 60 days after your arrival in the US on some other kind of visa MAY open the possibility that USCIS will accuse you of visa fraud (using a visa for a purpose other than the one for which it is intended, in this situation), so you may benefit by waiting a minimum of 60 days before filing for adjustment of status.

Q: What are those "few exceptions"?

A: Some of them include: entering under a C or D crewman's visa, as TWOV (transit), with a J visa if subject to the 2 year HRR requirement, or with a K-1 Fiancé visa, if you did not marry the person who petitioned you. (Fiancé visa recipients are eligible to adjust status ONLY if they marry the person that submitted the original petition and adjust status based on that marriage...if they do not adjust on that basis, they are not adjustable)

Q: I entered the U.S. by sneaking across the border (EWI - Entered Without Inspection). If I marry a U.S. Citizen, can I stay and file AOS?

A: Generally, no. You may NOT file AOS if you did not originally enter the U.S. legally, there is no provision in the current law for someone who entered the US illegally to file for adjustment of status. Generally, you must depart the U.S., and obtain a K-1 Fiancé or I-130 spousal visa, however that may subject you to being banned from the U.S. There are various exceptions. It's best to consult a reputable immigration attorney.

Q: I've read elsewhere that I can't have a big wedding, because I need to show to the USCIS that my marriage was "spur of the moment". Is this true?

A: No. A long standing BIA (Board of Immigration Appeals) precedent decision dictates that a mere "preconceived intent to remain" (i.e. prior intent to marry and stay in the U.S.) is not grounds to deny an Adjustment of Status.

Q: What does this BIA decision say? Where can I read it?

A: It says: "In the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain.."

Q: Does the USCIS have to always follow this BIA decision?

A: According to the USCIS:

"Decisions of the BIA are binding on all USCIS officers and Immigration Judges unless modified or overruled by the Attorney General or a Federal court."

Q: This BIA decision is over 20 years old! How do I know it still applies to the USCIS today?

A: See this letter written by the District Director of the Baltimore USCIS office on February 1, 2000:

Q: So what would constitute "adverse factors" and result in a denial of an application for AOS?

A: Generally, if any proven fraud or misrepresentations were made to any Consular or USCIS Officials, while attempting to obtain a tourist visa, or at the Port of Entry (POE) while attempting to enter the U.S. as a tourist, then you will likely be denied AOS. You may also be denied adjustment of status if a criminal record with "moral tuturpitude " crimes is found, or if you have HIV/AIDS. You may be denied AOS if you have a serious disease which will likely lead to your being debilitated and unable to work. If you are not sure about your position regarding "adverse factors", then you should consult a reputable immigration attorney.

Q: What are some examples of fraud or misrepresentation?

A: If on your tourist visa application, you lied about having a Fiancé in the U.S., or lied about having a job, in order to make it appear that you would return to your home country. Or, if at the POE, you lied to the USCIS Inspector about the purpose or intended length of your visit. Bear in mind, it is the documentation which proves the actual lie, so be careful about documentation and what may be documented in USCIS or consular files from what you have said.

Q: What if I told the USCIS Inspector that I only intended to stay for 2 weeks, but after entry, I changed my mind and want to get married and stay?

A: You may be required to prove to the USCIS that you really did change your mind, and did not intend all along to get married and stay. If you do not think that you can prove this information, then you may want to consult a reputable immigration attorney.

Q: What is this 30/60 day rule I keep reading about?

A: This is a rule developed by the State Department for Consular and USCIS officials to determine if a visa was properly issued. If you make statements to a Consular/INS official about your intentions, and then change your mind (i.e. get married and file AOS) within 30 days of entry into the U.S., it will be assumed that you lied, unless you can prove otherwise. If you changed your mind after 30 days, but before 60, there is no presumption of fraud. If you changed your mind after 60 days, then your statement about your intentions cannot be used against you to make a finding of fraud.

Q: Where can I find this 30/60 day rule?

A: See:

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

(this is a 17-page PDF file, go to page 6 to find this rule. The item is 9FAM 40.63 N4.7-1)
Q: But this 30/60 day rule doesn't make sense! What about the BIA decisions?

A: The BIA decisions address the issue of entering the U.S. as a tourist with a preconceived intention to remain. It "forgives" your intent, if you had any, of USING a tourist visa to enter the U.S., marry, and stay.

It does NOT "forgive" any lies or misrepresentations that you made in order to obtain a tourist visa, or entry into the U.S.! If you made oral or written statements which are inconsistent with your actions, you can still be denied AOS.

However, the 30/60 day rule does provide the USCIS with a guideline to determine if your statements about your intentions were lies, or a genuine change of plans. In general, if your plans changed > 60 days after entry, your statements about planning to return to your country can not be used against you.

Q: Does this mean I should wait at least 60 days before marrying if I entered as a tourist?

A: Maybe. IF you made oral or written statements to a Consular or USCIS Inspector that you intended to return to your country after your visit, then it would be wise not to marry and file AOS immediately after entry as a tourist.

If you made no such statements - for example, if you were just waived through at the POE, then waiting 60 days may not necessary. However, when in doubt, one may want to wait the 60 days.

Q: What if I truly did NOT have the intention of marrying and staying when I entered the U.S. as a tourist, and I was never asked about my intentions at the POE?

A: Then you are clear on the issue of intentions. The BIA decisions will not even apply to you, because those are necessary only for people who DID have immigrant intention while entering as a tourist. It is perfectly legal to change your mind after entry into the U.S.

However, other adverse factors in your case, if they exist, such as HIV/AIDS or previous criminal record may still be a problem....if you have any doubt about your position, then you should consult a reputable immigration attorney.

Q: What if I lied about having a job or owning a house? Will waiting 60 days before marrying protect me?

A: No. The 30/60 day rule only covers statements about intentions. It does not forgive lies about facts. In this case, it would be safer to depart the U.S. and obtain a K-1 or I-130 spousal based immigrant visa. Lying to the Immigration & Naturalization Service is a serious offense, and can cause denial of adjustment of status.

Q: What if I was ALREADY married to a U.S. Citizen, and I entered the U.S. as a tourist. Can I stay and file AOS?

A: Generally, Yes, same rules apply regardless of when or where you married. What counts is that you ARE married. However, you may benefit by consulting an attorney in this situation, to be sure that you have entered in a manner that will allow you to successfully adjust status. Be very careful in this situation, as there are several things that may cause you problems...attorney assistance is definitely recommended.

Q: I'm not in the U.S. yet. Why should I obtain a K-1 or I-130 based spousal visa? Why can't I just enter as a tourist, and file AOS?

A: Because, if your intention to marry, stay, and file AOS became known to the POE Inspector, you would be denied entry into the U.S. You may even be subject to Expedited Removal, and be banned from the U.S. for a period of 5 years or more! Bear in mind, the immigration inspector at the port of entry has absolute power over your entry, and even has the power to ban you from the US for a period of time, even for life---unfortunately, under the current immigration law, the decisions of that inspector are final and are not appealable in court, so proceed with great caution. It is wise to not make a decision regarding marriage until after you enter the US.

Q: Isn't that inconsistent with the BIA decisions?

A: Absolutely! I never claimed the law made sense. It's kind of like the Cuban Adjustment Act. Coming to the U.S. on a leaky boat is against the law. If they catch you at sea, they'll send you back. BUT, if you make it to land, you can stay. Assuming, of course, you didn't shoot a Border Patrol agent to make it to land.

Likewise, if you try to enter the U.S. as a tourist with the intention of marrying and staying, the POE Inspectors may find that out, and it they do, they will likely send you back. But, if you make it in without otherwise breaking the law (i.e. lying, or shooting an agent), then you may be able to stay and AOS, again providing there are no other complicating factors in your case.

Q: Wow, that's a lot of rules. Can you summarize it?

A: If you entered the U.S. legally, without lying, you can marry, stay, and probably successfully file for Adjustment of Status, providing that you have no complicating factors in your case. If you have complicating factors in your case such as HIV/AIDs, criminal record, if you did not enter the US legally, obtained your visa fraudulently, or lied to an USCIS or consular officer anywhere in this process, then you need to consult an immigration attorney before proceeding with anything. When in doubt, ALWAYS consult a reputable immigration attorney.


Other Miscellaneous Questions

Q: Why would anyone enter using a K-1 or I-130 based spousal visa, if entering as a tourist was an option available to them?

A: If you enter as a tourist, and file AOS, in some areas, it could be years before you obtained a green card. Some countries permit Direct Consular Filing, where you could obtain an Immigrant Visa/green card in just a couple of weeks! Also, certain USCIS offices, such as Detroit and Dallas, perform same-day AOS for people with K-1 visas. It is always wise to consider all of your options before filing for adjustment of status, as other options may have distinct benefits for you in terms of adjustment of status or work authorization. Bear in mind, entering on a tourist visa with the INTENT to marry and file adjustment of status and stay in the US is technically visa fraud, which is a serious offense. Tourist visa adjustment should only be considered if at the time of entry you did not plan to marry and stay in the US, and if you have no "complicating factors" in your case.

Q: My I-129F (K-1) or I-130 (spousal) application is taking too long for the USCIS to process! I am a U.S. Citizen, and I deserve special treatment! How can I get my application expedited?

A: In FY1998, the U.S. admitted 660,447 new Immigrants. The single largest classification was spouses of U.S. Citizens, with 151,172, or about 1/4th of the total number of new immigrants. Bet you didn't know that, huh? Trust me, you're not special.

In fact, if you count other Immediate Relatives, such as children and parents of U.S. Citizens, they total nearly half, or 283,368 of all new immigrants. Other relatives make up most of the rest. Only 77,517 immigrants were admitted in FY1998 due to employment based reasons.

Q: How many people use a K-1 visa, vs. a I-130 spousal Immigrant visa, vs. AOS from a tourist or other visa?

A: Here are stats from FY1998

151,172 - total spouses of USC who immigrated in FY1998

44,577 - 29% entered using an I-130 spousal Immigrant Visa
101,837 - 67% entered using another visa, and filed AOS
4,758 - 3% entered using a K-1 Fiancé visa
http://www.ins.usdoj.gov/graphics/aboutins/statistics/ybpage.htm



Why Student F-1/M-1 Visas are not a good immigration method for Fiancés

Student Visas come up every now and then. I wanted to get this into a legal binder for future use and forum searches. Some of this is a "repeat" but this is the first time it's all consolidated into a thread of its own.

Student Visas are called F-1 (academic) or M-1 (non-academic/vocational) visas. You can find out more about these at:

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

http://travel.state.gov/visa%3Bforeignstuden.html

Sometimes these are also referred to as S.E.V.P. (Student and Exchange Visitors Program).

This requires an exhaustive interview, enrollment in an approved course and checks on bank records to ensure she complies with their rules which are: That she has to have enough money to support herself independently for the period of the course, pay for accommodation and meals, a ticket home and all to her likely expenses. This money has to have been accumulated over a reasonable period and must be in her bank at least 6 months prior to application. She also has to prove that she has the income to save this kind of money over a reasonable time. Notwithstanding Government grants.

AND you probably find the visa has a "No change permitted" stamp on it, given her age. This means she'd have to go back and apply for fiancé or spouse in the Philippines anyway.

Realistically, the student visa takes as much paperwork as about any other type of visa. And, when you are done... you still have to do all the marriage visa paperwork on top of it. It's like doubling the stress, cost, and trouble of a IR-1, K1, or K3 Visa.

Basically... I would recommend against doing this. Plus, every person who gets a student visa, marries, and goes into hiding until they can be naturalized makes it 10 times more difficult for the next legitimate student to get into the country.



Why H1-B Work Visas are not a good immigration method for Fiancés

Work Visas come up every now and then. I wanted to get this into a legible order for future use. Some of this is a "repeat" but this is the first time it's all consolidated into a single posting.
An H1-B Work visa has some rather strict requirements that make it virtually impossible for a Filipino to get unless they are highly qualified. I worked on a project called VisaSolver.com (never came to pass) but I learned a great deal from the Immigration Lawyers that I worked with. I dealt with one of the best firms in the country, Jackson Lewis.

In general, a H1-B Visa is not practical It requires a number of things:

1) Verification of her education/qualification for the position
2) Medical Exam
3) Criminal background check
4) A US employer willing to sponsor must furnish:
4a) Research, Market data, etc... showing market salary for position he is applying for
4b) An agreement to pay them the same wage as they would pay a US Citizen as in '4a'
4c) Documentation proving that no American can be found to take the position using reasonable means -- this is justifying the hire outside of the country.
4d) A letter of intent to hire and keep the person for some predetermined length of time (6 months?)

There are about $2500-3700 in costs for the company to get the legal help to sponsor worker. The process takes about 3-6 months. If she quits the job specified in the H1B Visa, she must return to her country. H1B Visa's are not transferable from one employer to another. The employer loses all of their investment if the applicant backs out before the visa is issued. It is a "One-by-one" deal. There really isn't a "routine" hire for this.

I don't know if there are other types of work visa's than the H-1B. That is the one that large companies use to hire Computer Programmers from India & Asia. Recently, due to the difficulty and expense of reporting requirements, most H1-B Visa folks have started to just simply hire folks to work in their foreign countries without immigrating.



How the RIR (Reduction in Recruitment) Health Visa could get a relative over in 2-4 years

H1-B Work Visas are difficult to get. Tourist Visas are nearly impossible to get. Student Visas require a great deal of work. And Family Related Visas are also quite hard to get. So what is your best chance? You could try sending your relatives to Nursing School for 2-4 years, and then attempt to bring them over on the RIR visa.

For anyone interested in learning more, The official name of this type of visa is the "Reduction in Recruitment" or (RIR) Visa. This is done through the Department of Labor (DOL) and the State Workers Agency (SWA). It is done through FORM ETA750 and an I-140. The "normal process" can be expedited by the use of RIR procedures. The employer must request RIR when submitting the Form ETA 750 to the SWA.

The details of the RIR work visa for health workers is available at:
http://www.ows.doleta.gov/foreign/perm.asp

For regional RIR processing times, check out:
http://www.ows.doleta.gov/foreign/times.asp
Because this is a Department of Labor request, the RIR seems to be processed on a "State-by-State" basis that seems work independently of the USCIS (somehow). I don't pretend to completely understand it, but the processing times vary greatly state-to-state, and city-to-city within a state. Probably these are reflective of the need and age of the population



Why bringing Mom/Dad/Sister/Brother/Children(18+) from the Philippines is not realistic

The US only allows a total of 675,000 immigrants (Family & Employment based -- from all countries combined) into the US each year. They have a predetermined number of each sub classification that they will allow to immigrate. If the quota for that type of visa is not met, a lower priority visa can use the slack,=. If you've never seen it, the info is interesting:

Subject to certain transitional laws, total immigration into the United States is limited to 675,000 persons per year. However, that figure is divided into three distinct categories: 
A. FAMILY-SPONSORED IMMIGRANTS: Persons who are relatives of United States citizens and lawfully admitted permanent resident aliens are limited to a total of 480,000 visas per year. Immediate Relatives listed in Part I above are included in this number, as are preference relatives. (However, there is no upper limit on the number of visas which may be issued to immediate relatives.) Preference relatives receive all of the visas not used by immediate relatives, but in no case fewer than 226,000 visas per year. Family-based preference categories subject to the numerical limitation are: (minimum preference limits in parentheses)
1. First Preference: Unmarried sons and daughters over 21 years of age of US citizens, and children if any (23,400).

2. Second Preference: Spouses, children, and unmarried sons and daughters of lawful permanent resident aliens. NOTE: At least seventy-seven percent of all visas available for this category will go to the spouses and children; the remainder will be allocated to unmarried adult sons and daughters (114,200). 

3. Third Preference: Married sons and daughters of U.S. citizens, and their spouses and children (23,400). 

4. Fourth Preference: Brothers and sisters of United States citizens, and their spouses and children, provided the U.S. citizen is 21 years of age or over (65,000). 

B. EMPLOYMENT-BASED IMMIGRANTS: A total of 140,000 immigrant visas (sub-limitations listed in parentheses) are available for this category, which is divided into five preference groups:
1. Priority Workers: Persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; and certain multinational executives and managers (40,000).

2. Members of the Professions: Professionals holding advanced degrees, and persons of exceptional ability in the sciences, arts and business (40,000). 

3. Professionals, Skilled and Unskilled Workers: Professionals holding baccalaureate degrees, skilled workers with at least two years experience, and other workers whose skills are in short supply in the United States (40,000). (Unskilled workers are subject to a submit 10,000). 

4. Special Immigrants: Ministers of religion, certain international organization employees and their immediate family members, and specially qualified and recommended current and former employees of the United States Government (10,000). 

5. Investors: Persons who create employment for at least ten unrelated persons by investing capital in a new commercial enterprise in the United States. The minimum amount of capital required is normally $1,000,000, depending on the unemployment rate in the geographic area (10,000). 

C. DIVERSITY IMMIGRANTS: The Philippines is NOT included in the diversity immigrant program because large numbers of Filipinos receive visas through regular immigration categories.

Now, as of MARCH 2003, here are the current processing times. Use the post above to figure out which category your girl's adult children would be in. And, please note how much LONGER they wait times are for the Philippines:

FAMILY CATEGORIES

Categories Worldwide China (PRC) India Mexico Philippines
1st 6-22-99 6-22-99 6-22-99 5-01-93 4-01-90
2A 12-08-97 12-08-97 12-08-97 7-01-95 12-08-97
2B 7-01-94 7-01-94 7-01-94 11-08-91 7-01-94
3rd 2-22-97 2-22-97 2-22-97 3-22-93 12-08-89
4th 3-08-91 3-08-91 3-08-91 3-08-91 12-15-81


Note: If the above table is not clearly readable, see the State Department Visa Bulletin.

Now, note the processing times for work visas below. As you'll see, its better/easier/quicker to bring a family member over that way than via a relationship. Especially if they are from the Philippines!





All original materials on this website (www.asawa.org, www.filipinawives.com) are copyrighted by the author, Bob Lingerfelt, 1997 -2007  with materials on file at the U.S. Copyright Office.  No reproduction is authorized, in any form, without express permission of the author.

Home 

Disclaimers

Introduction

FAQ

The ASAWA Guide

Correspondence Service Advice

Links

 

 

 

 

 

 

What is the #1 financial mistake of men who are new to Fil-West relationships?  They call the Philippines using their regular long distance carrier! 

Don't do it!  Please visit SpeedyPin, one of ASAWA's primary sponsors.  As most Fil-West couples already know, using a phone card can save you a lot  of money! 

 

Section I: Pre-Relationship Education

 

Fun Trivia About The Philippines

Philippine History In A Nutshell 

Religion

What's In A Name?

A List of Famous Filipinas

The American Romance

The "Average" Fil-West Couple

So You Want To Marry A Filipina

So You STILL Want To Marry…

Heaven Or Hell?

Mail Order Brides Fact & Fiction 

Correspondence Services

Legal Concerns

Age Differences

The Attack On Feminism

A Shortage Of Filipino Males?  

The Problem With Submission

City Vs. Province

Questions For Her

Questions For Him

Suggested Books

Midnight Sunshine, a novel

A Long Way to Go for a Date

Recommended Movies

 

Section II: Courtship

 

Your Travel Budget

Flying to the Philippines

What To Take To The Philippines

Travel Tips

Philippines Travel Guide

Ninoy Aquino Int'l Airport

Security In The Philippines

Recommended Hotels

Social Situations

Learning To Communicate

Sex And Virginity

The Visitor's Visa

 

Section III: 

Engagement/

Marriage                       

                      

Taking Your Relationship Public

Expenses

Prenuptials

Annulments

So You Want an Annulment?

Wedding Costs In The Philippines

Marriage - Where and How

A Filipina Abandoned

"Separate But Equal"?

 

Section IV:

Immigration

 

Immigration Pointers

Proof Of Your Relationship

The Marriage Application

Fiancée Visa (K-1)

Spousal Visa (IR-1)

K1 & K3 Procedures

Evidence of Non-Immigrant Status (SSN)

Employment Authorization for Immigrants

St. Luke's Clinic

Immigration Numbers And Addresses

Minimum Income Requirements

 

Section V: 

Lifetime Issues

 

Health And Dental Issues

Filipina Transitions

Superstitions

Dealing With Intolerance

Tampo

Financial Support Of Relatives  

Sources of Conflict

Appendix:

 

Immigration Forms

Statistics

CIA Fact Sheet On The Philippines 

Map Of The Philippines

Electricity

Currency

Holidays

Name Structure

How To Send Money

How To Send Mail And Packages

Republic Act No. 6955

Family Code Of The Philippines

Terms And Acronyms

Filipino Communities

 

Guest Articles:

 

John's Story

Maligaya Means It

You May Be  Married to a Filipina if…

Imee

Weddings in the Philippines

The TownHouse Hotel, Manila