K Visa FAQs

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/ZvUVIGTM-Kk?t=1245

FAQ Transcript:

If you file for your H-1extension you are allowed to travel. You are allowed to travel even when your H-1 transfer is pending. A few things to keep in mind when you do - is are you maintaining status etc etc., but travel while transfer or extension of  H-1 is pending is allowed. The question is when you come back your I-94 changes and that is not a problem. That should not cause any delay and I don't see any need for any amendment. The fact that your H-1 is taking so long is most probably not related to this issue. But if you want you can double check with the USCIS customer service. I always advice that. 

V visa no longer exists. There is no K visa option for green card holders. Sorry. 

The State Department says that the Consulate will review additional documentation until the case has been physically transferred to USCIS.

The State Department says that if a K visa is awaiting documentation requested by the interviewing officer, it is denied under 221(g).  The case will remain at the Post until expiration, after which it will be returned to USCIS.  Fraudulent fiancé petition cases will be returned with a return memo to USCIS via NVC.

Once the I-130 is approved and consulate is notified of the approval, they will not issue a K-3. They expect us to wait for the green card approval.

There is no fiance visa for non-citizens, but look into the waiting times for spouses of green card holders. Those times are pretty good right now.

It looks to me that he is subject to a 10-year bar from entering USA and would not get a K-1 visa. Please take an appointment with a lawyer and discuss your (only) option of getting a waiver.

This will not be an easy K-1. First, the age difference is likely to viewed by the govt. as an indication of fraud. Second, you are required to meet - unless there are some extraordinary circumstances. Kids and drunk driving should not be an issue.

Daughter should be possible, cousin would not.

Yes you can. Normally, I prefer K-1 - marriage in USA route.

The fiance visa is, generally speaking, faster.

I see no reason to wait. Bear in mind, if consulate receives your I-130 approval, they will not issue a K-3. They will ask you to wait for your green card.

The processing times can be determined from this page http://www.immigration.com/processing-times-and-status-checks. As to expedite, check with USCIS customer service if they have any recommendations.

Wait for instructions from the NVC and then the consulate.

The only way I can think of is driving through from Canada. At the border, his situation should be explained to the CBP officers. It is their discretion to permit or not permit the entry.

I think you will be fine. As I recall, the law only requires you to get married within 90 days. But confirm this information and do check with a lawyer as to whether you may travel or not while AOS is pending. This could be the only issue I can think of.

You could look into a fiancee visa (K-1). It can take a few months.

Such person would be deportable unless they come under Violence Against Women Act (VAWA) or similar provisions.

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)
An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time. Nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The alien may sell his or her residence and move all household effects to the U.S. The alien's expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific indications of evidence that the alien's intent is to the contrary. If there are such objective indications, inquiry is justified to assess the applicant's true intent. As discussed in 9 FAM 41.54 N4, an applicant might be a beneficiary of an immigrant visa petition filed on his or her behalf. However, the alien might satisfy the consular officer that his and/or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of legality of status.
So, are they saying they will apply the same standards as given in the note below? I THINK that is what they are saying, but this is not clear.

Quote:
9 FAM 41.54 N4 ISSUE OF TEMPORARINESS OF STAY

(CT:VISA-803; 04-27-2006)

L aliens are specifically excluded from the intending immigrant presumption of section 214(b) of the INA and are, furthermore, not required to have a residence abroad which they have no intention of abandoning. In addition, INA 214(h) provides the fact that an alien has sought permanent residence in the United States does not preclude him or her from obtaining an L nonimmigrant visa (NIV) or otherwise obtaining or maintaining that status. The alien may legitimately come to the United States as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the United States. Consequently, the consular officer's evaluation of an applicant's eligibility for an L visa shall not focus on the issue of temporariness of stay or immigrant intent.
There exists in law something called the "doctrine of dual intent." This doctrine permits nonimmigrants to have immigrant intent. In other words, even though, you are coming to USA on a visa that is temporary, you may pursue your green card (exhibiting intent to live in USA permanently).

By law, L-1 and H-1 holders are PERMITTED by the doctrine of dual intent to have their green cards pending. This is beyond question. That your green card application is pending can never be a ground for denial of your H or L visa application (includes H-4 and L-2).

As I have noted above, E-1, E-2 visas have an unclear situation. It appears the consulates WILL permit them dual intent, but may not(???). They do NOT have the same level of protection as H and L visas but usually consulates will permit dual intent.

The following visa types have no such protection and their vise or entry into USA can be denied if they have a green card application application in process: B-1, B-2, F-1/F-2, J-1, J-2.

O-1 is allowed to have an immigrant intent (by regulations - though not by statute).
Pursuant to 8 CFR Section 214.2(O)(13)
(13) Effect of approval of a permanent labor certification or filing of a preference petition on O classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

TN is also not allowed dual intent, but are often not questioned on their green card pendency.

In your case, a K-3 cannot be issued. You must wait for IV.

If an I-130 is approved, K-3 can still be approved if the consulate has not yet received OFFICIAL notice of approval of I-130. Note that your I-30 will NEVER be canceled.The recommended practice in K-3 cases is to indicate on the Form I-130 that the beneficiary will apply for AOS. Nevertheless, it is too late for that now. If they have received official notification, then an immigrant visa (green card will be issued) after processing locally. It should not take too much extra time.