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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 108663
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Im, US citizen, My brother married with 2 children under 21

Customer Question

Im, US citizen, My brother married with 2 children under 21 lives in Sydney, Australia. All family are Australian citizen.
I want to file, I 130 for him. Is he will come to US with visitor visa and I can apply I485 and I 130 togather.
or
Should I appply I130 and when will come in US from Australia, I guess they dont required visa to come here..then I can adjust status with I 485
Thanks,
chan patel
Submitted: 2 years ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 2 years ago.
Welcome to JustAnswer! My name is***** I am a licensed attorney and I am here to help resolve your legal issue. Tackling legal issues can sometimes get cumbersome or confusing. Should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know at any time during our question and answer session if you are interested in these – I am happy to give you more details! You are NOT charged per question and you are NOT charged per response, so post at your desire! Just please remember that sometimes the law does not have an easy or convenient solution and that is not the fault of the expert. Please do not shoot the messenger.
It is risky to do it the way you are planning. Yes, he can apply for and get a B-2 tourist visa and try to enter the U.S. with it or use the ESTA Visa Waiver for Australians and IF he can make it in, then yes, 60 days later, you can marry and file for him. It's 60 days or more after entry to that he doesn't get slapped with a visa fraud charge for using such a visa that requires non-immigrant intent when his actual intent is to stay in the U.S.
One of three things can happen to him if he tries and they are not happy with his answers to their questions:
a) They will allow him to withdraw his request to enter the U.S. and he can go home, no penalty.
b) They will not allow him to withdraw his request to enter the U.S. and will order him excluded. This has a 5 year penalty that he cannot come back unless he gets a very hard to get waiver.
c) They will not allow him to withdraw his request to enter the U.S. and they catch him in a lie and they exclude him with a permanent bar due to fraud and/or misrepresentation and with that charge he cannot come back unless he gets a very hard to get waiver.
Of course, they may not ask him anything at all and let him right through, but I cannot just tell you he will be ok because it isn't for sure that he will get through with no problems and if I don't mention that he may have problems, then that is bad on my part.
There are essentially three ways to bring her and none are really fast, unfortunately:
1) The K-1 fiancee visa takes 6 to 9 months, but you must have met before at least once during the last two years in order to process it. The I-129F will cost $340 plus a $350 fee for the visa processing fee. After she enters the U.S., then you have to marry and then you have to pay $1070 for the I-485 and she will have to wait about 5 to 7 months and gets another interview that you attend with your new spouse so that she can get Residency.
2) The K-3 spouse visa takes 6 to 9 months, you must be married. The I-129F will cost $340 plus $420 for the I-130, and $350 for the visa processing fee. Then after she enters the U.S., she must still file the I-485 for $1070 and wait for the marriage interview about 5 to 7 months later.
3) The CR-1 visa (or IR-1 if your marriage is more than 2 years old) takes about 1 year or so. You must be married. The fees are $420 for the I-130, $330 for the visa processing fee, $88 for an Affidavit of Support fee. But once she enters the U.S., she enters as a Resident and she does not have to file (or pay for) an I-485 nor does she have to attend an additional interview. She just gets her green card in the mail a few weeks later.
So the K-1 and K-3 are faster but generally more expensive. The CR-1 (and IR-1) are slower, but generally cheaper. And no, there is no middle-visa that she can use to enter the U.S. while that process is pending. She will most likely have to wait outside.
Here is a link to all three:
http://travel.state.gov/content/visas/english/immigrate/types/family/fiance.html
and another link:
http://www.uscis.gov/sites/default/files/USCIS/Resources/Resources%20for%20Congress/Congressional%20Reports/I-129F%20Petition%20for%20Alien%20Fiance%28e%29.pdf
I know you do not want to wait. I know it is very inconvenient. I know you want to be together sooner rather than later, but I have this same conversation two or three times per day on this website. No one ever likes it and believe me, if there was an easier or faster way, I would tell you. I know you will probably say, “but what about this...?” or “but what about that...?” But I will most likely continue to have bad news for you. I am truly sorry. The problem is that the U.S. concerns over security and fraud in this area are more important than a 6 to 9 months inconvenience to you. The way they see it is that if it truly is a real relationship, it will survive that length of time apart. Again, I am truly sorry. I wish I had a faster and easier way to tell you about.
Now that I have given you an answer, you may rate me positively OR ask for additional information. Please do not rate me negatively for bad news or things that you may already know. That does not help you or me. I am here to help you and I am on your side. Give me a chance to help you. All you have to do is respond asking for additional information. You are NOT charged per question nor are you charged per response. If this seems a little complicated or overwhelming, I can also offer you an additional service for a small fee where we can speak in private over the phone or through email that may be helpful (this is a public forum where anyone can read the responses). Feel free to decline it, but if you do, please remember that I am not given a salary, so the only way that I am compensated is if you rate me positively. So at least please use the smiley faces and a bonus is always appreciated if you feel I earned it. Also, your question does NOT close just because it says, "To finish". I can still answer additional questions for you without additional charge. If I do not hear from you, I will automatically send that additional offer request. Thank you for your understanding and if you would like to request me in the future, just type: FOR GUILLERMO in the subject line and message box.
Customer: replied 2 years ago.
I think You understand wrong.I want to file I 130 for my brother.My brother lives in australia. He is already married and 2 kids. My purpose is to bring him earlier. so, If I file I 130 then it will take longer time. as you mentioned if he come to usa with family with B2 visitor visa.
Is he eligible for 485 (http://www.uscis.gov/i-485) status becuase I applied for I 130.Chan Patel(Male)
Customer: replied 2 years ago.
I'm already married and have 2 kids.
Expert:  Guillermo J. Senmartin, Esq. replied 2 years ago.
My apologies. You understand how long it takes for a brother petition?
Customer: replied 2 years ago.
I guess, I 130 more than 10 yrs to come in usa.
that's why I want him to come here as visitor or something from australia and change his status change by I 485..is something or other way possible.Chan
Customer: replied 2 years ago.
I didnot apply yet I 130. I am thinking to apply I 130.
Customer: replied 2 years ago.
I did not apply yet.
Expert:  Guillermo J. Senmartin, Esq. replied 2 years ago.
Sorry about the delay. I had stepped out for lunch. Yes, it's about a 12 or 13 year wait. They are on I-130s filed on or before September 8, 2002. That means if you filed now, it would be about a 13 year wait. Here is a link where you can look at the F4 preference category:
http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-june-2015.html
This is a waiting line. There is nothing in the law that allows anyone to jump ahead of anyone else in line not even in the case of an emergency. So unfortunately, during that 13 year wait, he cannot file an I-485 and he cannot remain in the U.S. waiting for that time period to pass. He has to have some other status or wait outside patiently. That's the big issue that no long likes. I will go over the different ways that he can immigrate or that he can at least get a visa to be in the U.S. in some legal status but keep in mind that for the B-2 or ESTA he has to have non-immigrant intent and if he has an I-130 filed for him, that is proof of immigrant intent. So once you file the I-130, that is evidence of immigrant intent and he will find it hard to visit on a B-2 or ESTA.
There are generally 5 avenues to obtain U.S. Lawful Permanent Residency. They are through family, through employment, through Asylum or refugee process, through investment, or through the lottery.
For family, it must be immediate family such as U.S. Citizen spouse or U.S. Citizen children over 21 in order to be able to come immediately. U.S. Citizen or Lawful Permanent Resident parents or U.S. Citizen siblings, or Lawful Permanent Resident spouses can also help, but the wait for that is about 4 to 12 years or so.
Through employment, he would have to generally prove that he would not be taking away a job from a U.S. worker and the less experience and education he has, the harder that is to do.
Through Asylum or Refugee process, he must prove that he would be persecuted, tortured or killed if he stayed in his country and that this will happen to him because of his nationality, race, religion, political opinion, or membership in a particular social group, not because he would run the same risk as anyone else in his country to fall victim to a crime or bad economic conditions.
Through investment, he is looking at generally $1,000,000.00 for a residency, or $500,000.00 in an area designated as a high-employment area, plus in both cases the investment has to create 10 or more jobs for U.S. workers.
And through the lottery, it would be very difficult to win one of the 50,000 visas available per year and some countries do not qualify.
Here is a link to the different forms to get a green card:
http://www.uscis.gov/greencard
Then there are some visas available where he can stay temporarily and then later change to Lawful Permanent Residency if he qualifies.
Some of the visas available through employment (if he has a job offer and he qualifies) are:
H-1B for professional workers
H-2A for seasonal agricultural workers
H-2B for seasonal nonagricultural workers
H-3 for industrial trainees
Then there are the F-1 and M-1 for students and J-1 for exchange visitors.
And then there is the E-1 for treaty traders and E-2 for treaty investors (these types of visas are not available in all countries).
Here is a link to most of the available visas:
http://travel.state.gov/content/visas/english/general/visa-wizard.html
The best for him would be either an H-1B or L-1 if he qualifies because those allow for both immigrant and non-immigrant intent. Here are links to both:
http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models
http://www.uscis.gov/working-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager
http://www.uscis.gov/working-united-states/temporary-workers/l-1b-intracompany-transferee-specialized-knowledge
Please let me know if you have additional questions and please do not forget to rate my service to you positively (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.
Expert:  Guillermo J. Senmartin, Esq. replied 2 years ago.
Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!

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