I came in the state 3 month ago with an I class media visa, do I have to go back to my country before my fiance (A us citizen) can file immigrant status for me ?
There may be several options for you and your fiance to consider. Make an appointment with an immigration lawyer to review your case and plan your actions. See the link to AILA below, for help in finding an immigration lawyer.
I agree with my colleague. Contact a US immigration attorney before you leave the US.
Generally, a U.S. citizen may petition for a foreign national spouse to adjust status in the U.S., and without going through consular processing abroad, if the foreign national spouse entered the U.S. lawfully and with inspection, such as with a media visa. This is true even if the foreign national spouse may have overstayed his visa or been employed without proper authorization. There are more details that govern eligibility, and it would be wise to work with an immigration attorney who, after learning all of the relevant facts about you and your soon-to-be spouse, could advise you about eligibilities, options and strategies and offer legal representation to you for the application process.
David N. Soloway
Frazier, Soloway & Kennedy, PC
[Note: Consistent with Avvo policy, this communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.] David N. Soloway
A U.S. citizen fiance may file a Form I-129F petition for you to begin the immigration process. But you are required to leave the U.S. and apply for a K-1 fiance visa at the U.S. Consulate. USCIS could take 5 to 12 months to issue a decision on the I-129F. And you may file for the visa only after USCIS approves the petition. After you enter the U.S. on a K-1 visa, you must marry your fiance within 90 days of your arrival and then file the Form I-485 green card application. You become a permanent resident after USCIS approves the I-485.
If you marry, your U.S. citizen spouse may file a Form I-130 immigrant petition for you to apply for an immigrant visa at the U.S. Consulate. Upon admission to the U.S. on an immigrant visa, you will have permanent residence and the green card will be mailed to you a few weeks later. As a back-up option, the spouse may file a Form I-129F (after filing the Form I-130) for you to apply for a K-3 nonimmigrant visa at the U.S. Consulate. Upon admission to the U.S. on a K-3 visa, you will need to file a Form I-485 application and get it approved to become a permanent resident.
If you want to become a permanent resident without leaving the U.S., you first need to marry your US citizen fiance. After you are married, the citizen may file a Form I-130 immigrant petition and you may file your Form I-485 application at the same time. You and your spouse will need to complete an interview with USCIS, which will verify whether you have a bona fide marriage and whether you are admissible to the U.S. If USCIS approves the I-130 and I-485, the green card will be mailed to you within a few weeks of the decision.
The filing of the I-130/I-485 is perhaps the most convenient immigration option, but it's not risk-free. For example, if you had specific plans to marry the U.S. citizen, overstay your media (I) visa, and apply for a green card, USCIS could find that you committed fraud/misrepresentation to get the media visa or to gain entry to the U.S. The media visa is for traveling temporarily to the U.S. to work in your profession. But if you decided to marry the citizen and apply for a green card only after you arrived in the U.S., the I-130/I-485 filing might be your best option.
While an I-485 is pending, you may not use the media visa to re-enter the U.S. following overseas travel. You need to apply for and receive Advance Parole, and use this travel document for re-entry. (Otherwise, your I-485 will be deemed abandoned.) Also, if you plan to file for a K-1, K-3 or immigrant visa, and the immigration process has begun, it will be very difficult for you to use the media visa for re-entry.
You should also avoid accruing 180 days or more of unlawful presence in the U.S. prior to your departure. An overstay of this length will subject you to the 3/10 year bar to re-entering the US on a K-1, K-3, immigrant visa, etc.
For more information, check out these resources:
From K-1 Fiancé(e) Visa to Green Card. http://bit.ly/1DPk1uB
Applying for a Marriage-Based Green Card Following Entry Into the U.S. as a Visitor. http://bit.ly/1IU2xVM
K-3 Nonimmigrant Visa for Spouse: Pros and Cons. http://bit.ly/1HpUxba
Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa? http://bit.ly/1IAEV8C
Consult an immigration attorney to discuss your options and to help you determine the best route based on your personal situation.
The general answer I provided is not intended to be and should not be taken as legal advice. It does not establish an attorney-client relationship between you and me. You should not take action based solely on this general answer. Laws, regulations and policies that exist at the time of this posting are subject to change. Consult a qualified and experienced attorney to obtain legal advice on your specific situation.
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