Trouble At The Us Border! What Next?

[PattayaXpat]

My family and I arrived in the states about 12 hours ago, but my wifes passport was seized by the Dept. of homeland secutity at the border! On the actual visa stamp in her passport at the very bottom it say"K3 Visa application expires on 20 Feb 2010", 8 days ago! I knew about this before coming back wasn't concerned because the actual Visa expires in 2012.

They let her come in to the country but I was told to call the Immigration dept. and make an appointment to get everything straightened out. It sounds like the passport will most likely be returned and I'll just have to apply for an adjustment of status at that time, but I'm not sure.

Any ideas??

Thanks......

[Thanyaburi Mac]

Sure looks to me like the Immigration officer at POE just didn't know how to handle the "situation," which looks like it wasn't one to begin with. Didn't he refer it to a supervisor there, standing somewhere behind all the initial arrival booths? Thought there a process of "secondary inspection" available at the POE.

Ah, Mr Google says it may take place later, which is what it looks like occurred to your wife.

Mac

http://ezinearticles.com/?US-Border-Inspec...&id=1321449

If additional time is needed to review a traveler's eligibility, CBP can refer a traveler to secondary inspection for a more extensive review. Travelers referred to secondary inspection are not considered to be admitted to the United States.

What happens in secondary inspection?

In secondary inspection, travelers are asked more detailed questions about their travel and are asked to produce additional identification and other documentation in order to determine their actual identity and purpose of visit. The traveler and their belongings may also be searched and the traveler may be subjected to a full set of fingerprints.

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[rfukata]

which us border did you cross (canada or mexico?)

the k3 application expiry has nothing to do with the case, you should have 2 yr validity from the date issue stamp along with a multiple entry.

there are alot of novice officer who just doesn't know anything about immigration law.. the truth is they don't give a rats ass about it.

[DirectorIntegrityLegal]

CBP should know the difference between the underlying petition's expiry and the expiry of the visa itself, but unfortunately they do not always know how the whole system works. That being said the K-3 should still be valid for travel purposes (so long as the I-130 petition is still "alive" and with NVC). The thing you need to keep an eye on if she will be coming and going again is the underlying I-130 petition. If that petition goes stale, then you could have real problems with the K-3 as it is only intended to be used as a travel document while you are awaiting the adjudication of the I-130 or the adjudication of an adjustment of status petition in the US. If you are adjusting her status stateside then filing for adjustment should remedy all issues related to the validity of the K-3 (except the expiration date of the K-3 itself is still binding). Filing for adjustment and being approved would give her permanent residence and make all of the issues surrounding the validity of her K-3 a moot point.

I hope this was helpful.

All the Best!

Ben Hart

US Immigration Attorney

Integrity Legal

[PattayaXpat]

CBP should know the difference between the underlying petition's expiry and the expiry of the visa itself, but unfortunately they do not always know how the whole system works. That being said the K-3 should still be valid for travel purposes (so long as the I-130 petition is still "alive" and with NVC). The thing you need to keep an eye on if she will be coming and going again is the underlying I-130 petition. If that petition goes stale, then you could have real problems with the K-3 as it is only intended to be used as a travel document while you are awaiting the adjudication of the I-130 or the adjudication of an adjustment of status petition in the US. If you are adjusting her status stateside then filing for adjustment should remedy all issues related to the validity of the K-3 (except the expiration date of the K-3 itself is still binding). Filing for adjustment and being approved would give her permanent residence and make all of the issues surrounding the validity of her K-3 a moot point.

I hope this was helpful.

All the Best!

Ben Hart

US Immigration Attorney

Integrity Legal

Thank You For The Reply Ben!

Maybe it's the jet lag but I'm still confused.

We were actually planning to all leave the states again after applying for an adjustment of status for her, when she applys for the adjustment will she get a new stamp or document stating that we applyed for the change and will that allow her to come and go while the visa is still active?

She was just issued the Visa in mid Jan., we saw that the K3 was expiring but thought that it was nothing because we had 2 years on the Visa. Isn't the application process finished when the visa is issued?

This is extremely confusing!

Thanks

[shawndoc]

When you file for adjustment of status, you will also need to file for Advanced Parole. This will be a new document that allows her to re-enter the country while waiting for the AOS to be finalized.

[PattayaXpat]

When you file for adjustment of status, you will also need to file for Advanced Parole. This will be a new document that allows her to re-enter the country while waiting for the AOS to be finalized.

I thought that the K3 does not require Advance parole to travel while waiting for AOS. Has this changed?

[DirectorIntegrityLegal]

K-3 visas are confusing because they were designed as a "band aid" to fix the problem of excessively long USCIS processing times. Since USCIS processing times are dramatically shorter than they were 7-10 years ago, the need for the K-3 visa category is increasingly being questioned.

That being said, one does not need advance parole to come and go from the US on a K-3, so long as the K-3 is valid. However, if one files for adjustment towards the end of the K-3's validity and the K-3 expires prior to adjudication of the adjustment application then the adjustment application would extinguish when the foreign national leaves the USA in much the same manner as the K-1 does in the same situation. Therefore advance parole may be necessary to leave the country for certain K3 visa holders who are coming to the end of their visa's validity. Those who enter the USA on a K-3 visa and neither adjust status nor process the underlying I-130 petition could find their K-3 cancelled by CBP at the border since the applicant did not follow up on the underlying I-130 which is the basis for issuing the K-3 in the first place.

Bottom line: Apply For Adjustment of Status ASAP and if possible wait for the adjustment before leaving the US. If this is not possible to await the outcome on the adjustment application and the K-3 has a great deal of validity left, then after submitting the application the K3 holder could leave and return while the K3 is still valid and the adjustment application is pending.

The National Visa Center is trying to deal with some of these issues by administratively closing I-129f applications for certain married couples and thereby forcing them to process the immigrant visa, thus negating these kinds of issues before they arise.

I hope this was helpful.

All The Best!

Ben Hart

US Immigration Attorney

Integrity Legal

[PattayaXpat]

I just wanted to follow up. We got the passport back a few days again. It was all a mistake! the embassy even helped with an email stating that the visa was fine and there was no reason to take it.

Thanks for all the replys

[Gonsalviz]

This is extremely confusing!

Our Taxpayer dollars at work.