Marriage During Proceedings I-129F??

[dianna832]

I was reading over Laurel Scott's chat for 2/13/08 and the following question was asked:


gilleanna: I want to file the I-130. My husband EWI in 2005 and then was picked up and given a court date. He missed this date, and the judge ordered a formal order of removal. Two years later he was picked up and put in detention, waiting only for his flight to nicaragua. While he was in detention we were married. Now I see on the I-130 form it says waiting if you were married. I have asked uscis customer service and the embassy in Nicaragua, both giving different answers.....can I file now?
Laurel: I don't think I understand the question. If you're married you can file the I-130. I would also file an I-129F in a situation like this where you married after the alien was placed in proceedings because the I-130 may get more scrutiny, which means delays.


What is the I-129F? Later on in the chat she stated you can file the I-130 along with the I-129...

Help pls, my hubby and I also got married during proceedings!!

[kitkat1]

If you got married during deportation proceedings, there is a apparently a much higher likelihood that the petition will be denied.

http://www.uscis.gov/files/form/i-130.pdf
For Whom May You Not File?
You may not file for a person in the following categories:

A husband or wife, if he or she was in exclusion, deportation, removal, rescission or judicial proceedings regarding his or her right to remain in the United Stateswhen the marriage took place, unless such spouse has resided outside the United States for a two-year period afterthe date of the marriage.

So for that reason, Laurel suggested following up the I-130 with an I-129F. With the two petitions, the resulting visa is a NON-immigrant spousal visa which means there is more adjustment of status to be done one in the US. It sounds like you need to do that.

Read here for more about it:

http://travel.state.gov/visa/immigrants/types/types_2993.html
Filing - Two Petitions are Required
You must first file an immigrant Petition for Alien Relative, form I-130 for your spouse with the USCIS Office that serves the area where you live. The USCIS will send you a Notice of Action (Form I-797) receipt notice (http://travel.state.gov/visa/frvi/glossary/glossary_1363.html). This notice tells you that the USCIS has received the petition.
You next file Petition for Alien Fiancé(e), form I-129F for your spouse and children. Send the I-129F petition, supporting documents and a copy of the Form I-797 receipt notice to this Department of Homeland Security USCIS Address (http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=52a46c854523d010VgnVCM10000048f3d6a1RCR D&vgnextchannel=52a46c854523d010VgnVCM10000048f3d6a1 RCRD) on their web site.

http://www.familybasedimmigration.com/forum/k3visa.php
GUIDELINES FOR THE FILING OF THE 1-129F PETITION FOR A SPOUSE BY A US CITIZEN

[dianna832]

Hey thanks for replying... but I think you are confusing yourself... We are currently in proceedings, our case has not been closed.

A husband or wife, if he or she was in exclusion, deportation, removal, rescission or judicial proceedings regarding his or her right to remain in the United Stateswhen the marriage took place, unless such spouse has resided outside the United States for a two-year period afterthe date of the marriage

WAS being the keyword there. An I-130 can still be approved if someone is currently in removal proceedings. It CAN NOT be approved after the person is already deported or is not eligible to recieve the relief of adjustment of status through the immigration court...

:erm:

[jessfs8]

The I-129 just speeds the process of the I-130 so that the interview can be done faster than with just the I-130, in most cases it's used when the immigrant spouse is outside of the country waiting for his/her interview and waiver appts.

[dianna832]

That's what I was thinking Jessfs8, if it speeds up the process for the i-130 then it would be great for us!! But I noticed that the I-129F is for a FIANCE and that it is for someone out of the country. I don't know why Laurel would have done that with someone in proceedings.... I'm confuuused :erm:

[kitkat1]

The I-129F is used both for a fiance (whether they are inside or outside the country at the time of filing) visa and also for a non-immigrant spousal visa. Same form because they are both non-immigrant visas.

The I-130 instructions appear to indicate that if the person was in proceedings when the marriage took place, it cannot be approved.

Was in this sentence means two simultaneous actions happening at the same time

1) the person IS at the time in proceedings (proceeding regarding his or her right to remain in the United States which clearly indicates the person can be "in proceedings" and still not yet deported)

2) WHEN the marriage happened.

I don't think Laurel would have recommended filing the I-129F if this wasn't the case. If you are unsure if you need to file the I-129F, it would probably be worth your time to arrange a consultation with a qualified attorney who can advise you based on the specific facts of your case.

[dianna832]

Kitkat, other forum members that are in deportation proceedings have successfully adjusted status. An I-130 can be approved but like Laurel said, immigration thinks of it as fraudulent therefore one must prove that it is a bona fide marriage. If you would like to know more about the procedure through the immigration court, take a look here --> http://immigrate2us.net/forum/showthread.php?t=5341

Anyhow, i am still in doubt about the I-129F. I will ask my attorney. Hopefully Daniel Green can chip in...

:)

[kitkat1]

I'm sure they have. But as I said, if you got married during deportation proceedings, there is a apparently a much higher likelihood that the petition will be denied. And I tried to clarify for you that the rule on the instructions for the I-130 does not only apply to people who have already been deported (otherwise it would say so). You obviously understand why Laurel suggested it - I was trying to help you understand a bit more. Since you have an attorney, ask him.

[Caribbeanman]

Ok hold up here i had to ask my lawyer about that particular instruction BEFORE we filed and he told me that some of those instuctions has been ammended like the one you all are talking about ...a person CAN file and I-130 if a spouse is in removal proceedings but the burden is much higher as you have to prove the marriage was bona fide, congress made an ammendmet in 1996 pertaining to this instuction and this is where the bona fide marriage exemption comes in so YES it can be done.

[kitkat1]

Right - which is exactly where we started:


"If you're married you can file the I-130. I would also file an I-129F in a situation like this where you married after the alien was placed in proceedings because the I-130 may get more scrutiny, which means delays."


That's why there was a recommendation to file a I-129 as well

[Daniel Green]

I have never had to address the I-129f-while in proceedings scenario. I haven't handled I-129F's before. I believe (although I'm not sure) that you can only file an I-129f for someone who is not in the U.S., which means it would never become relevant in removal proceedings, because the respondent in removal proceedings is always in the U.S.

I-130's can be approved when the foreign national is in proceedings. But the evidentiary bar is much higher than in other I-130 cases. I have a client coming in today to bring in her proof for an I-130 interview next month. She is in proceedings. The immigration judge adjourned her case so that she could go through the I-130 interview. If it is approved, my client will win her case and she is off to happily ever after land with her husband (who is also my client).

I-130's can also be approved when a person has a final order of removal. It's touchy because ICE can arrest the beneficiary before the interview, during the interview, after the interview, or not at all. The last one of these that I had, the I-130 was approved and ICE let my client/beneficiary go home. Sometimes they just are not in the mood to deport someone with a USC family.

In my experience in NYC and Newark NJ, the USCIS m.o. is that whenever someone has a final order and their spouse files an I-130 for them, they are called into an interview, with all the arrest and deport scenarios I've mentioned.

-Dan

[dianna832]

Kitkat I believe you are still confused. What you are explaining to me is why the I-130 could be denied. I do understand all about why the I-130 could be denied since we have discussed with our lawyer and in the other thread I referenced. My question was just about the "I-129F". I had never heard of it. But I understand it more now. Thank you guys!! :)

[kitkat1]

Kitkat I believe you are still confused. What you are explaining to me is why the I-130 could be denied. I do understand all about why the I-130 could be denied since we have discussed with our lawyer and in the other thread I referenced. My question was just about the "I-129F". I had never heard of it. But I understand it more now. Thank you guys!! :)

Actually, what I explained was about the I-129F, and I tried to clarify why someone might choose to file it when the beneficiary was in proceedings and the applicant had only filed an I-130.

If you want to read some information about the I-129F, again, it's in these links. That's it for me here.

http://travel.state.gov/visa/immigra...ypes_2993.html (http://travel.state.gov/visa/immigrants/types/types_2993.html)
Filing - Two Petitions are Required
You must first file an immigrant Petition for Alien Relative, form I-130 for your spouse with the USCIS Office that serves the area where you live. The USCIS will send you a Notice of Action (Form I-797) receipt notice (http://travel.state.gov/visa/frvi/glossary/glossary_1363.html). This notice tells you that the USCIS has received the petition.
You next file Petition for Alien Fiancé(e), form I-129F for your spouse and children. Send the I-129F petition, supporting documents and a copy of the Form I-797 receipt notice to this Department of Homeland Security USCIS Address (http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=52a46c854523d010VgnVCM10000048f3d6a1RCR D&vgnextchannel=52a46c854523d010VgnVCM10000048f3d6a1 RCRD) on their web site.

http://www.familybasedimmigration.com/forum/k3visa.php
GUIDELINES FOR THE FILING OF THE 1-129F PETITION FOR A SPOUSE BY A US CITIZEN

[dianna832]

Thanks!! I get you now.