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IMMIGRATION / VISA SUPPORT

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Immigration Frequently Asked Questions

Although there are many different categories of family based immigration, the most common, by far, are fiancée and spouse cases. The following FAQ are representative of questions that are, in fact, frequently asked by prospective clients. Our answers are not intended to be technical explanations of the law but rather, plain talk answers to real life concerns. You should obtain a qualified legal opinion on the facts of your specific case before deciding upon a course of action.

The following information is for INFORMATIONAL PURPOSES ONLY and is not intended as a representation of current USCIS law. Please seek the help of a qualified Immigration Attorney for any legal advice pertaining to IMBRA, USCIS or General Immigration Law.

 

Q.   We have not yet married. Should I file a petition for my fiancée to obtain a K-1 visa or, should I marry her in her country and file a petition for her to immigrate as my spouse?

  A.     There is no "right" legal answer to this question for everyone. The "right" answer depends a great deal on the individual circumstances of the couple, their priorities and, in some cases on whether the alien fiancée already has unmarried, minor children. Your immigration attorney, after exploring the specific facts of your case and discussing your objectives with you, can advise you on the relative advantages and disadvantages of each course of action, as it relates to your individual circumstances. You can then make an informed decision as to which course of action is "right" for you. However, there are some general rules that apply in most cases. General considerations in most cases include: A K-1 fiancée will usually enter the U.S. more quickly than a spouse but, will often obtain their permanent resident status (their "green card") more slowly. If being reunited in the U.S. as quickly as possible is the couple's single overriding concern, a K-1 fiancée visa usually satisfies this objective the best.

 

It seems counterintuitive that a fiancée would enter the U.S. more quickly than a spouse but, that is the way the system currently works. A K-1 visa allows a fiancée to enter the U.S. one time, for 90 days in order to marry the U.S. Citizen petitioner. If the marriage does not occur within 90 days of entry, the alien fiancée must leave the U.S.. However, if the marriage occurs within 90 days of entry, the alien may then apply for Adjustment of Status to obtain her Permanent Resident status (a "green card"). Please note, that this requires the filing of an additional application and, if the alien wishes to work or, travel outside the U.S. during the pendency of her application to Adjust Status, separate applications must be filed for those benefits. That is the down side trade-off for a speedier entry with a K-1.

 

While none of these additional applications is excessively complex, they do take time to work their way through the system, ultimately resulting in approval of Permanent Resident status. If the alien fiancée has unmarried, minor children that the couple wishes to reside in the U.S., those children may be eligible for K-2 status to enter the U.S., being processed on the same case as "derivative beneficiaries". This can result in savings in both time and a small amount of money. Keep in mind, however, that K-2 visa holders must also Adjust Status, with the attendant costs and waiting involved. Conversely, a spouse will generally obtain his/her visa (and enter the U.S.) more slowly but, will become a permanent resident of the U.S. upon passing through immigration at their port of entry to the U.S. No further applications are required to obtain their permanent resident status and they are immediately able to work or travel in and out of the U.S. as a normal incident of their Permanent Resident status. If the spouse has unmarried, minor children that the couple wishes to reside in the U.S. as well, you should be aware that there are no "derivative beneficiaries" on Immediate Relative Petitions. Separate cases must be filed for each child, if they qualify. Your attorney will be happy to discuss whether your stepchildren qualify for Immediate Relative status.

 

Overall, the cost of filing separate petitions for stepchildren is about offset by the fact that you do not need to later file Adjustment of Status applications for them as K-2 visa holders. Please note however, that governmental costs in Immediate Relative cases are more "front loaded" in the case, rather than being spread out over a long period of time and multiple applications for various benefits. Before making a determination of the relative advantages and disadvantages of each course of action, you must have a clear idea of how long it will take to process a fiancé case versus a spouse case from original filing to visa issuance, in your individual case. It isn't fair, by any means but, where you as the petitioning ("sponsoring") U.S. citizen or Permanent Resident live in the U.S. does make a difference. In addition, processing times at each of the Regional Service Centers fluctuate constantly and, vary substantially between the Centers. If you tell your attorney your current U.S. State, or foreign country, of residence he will be able to give you a fairly accurate prediction of the relative time differences between a fiancé and spouse petition for you based on your residence. Please note that special jurisdictional rules apply to U.S. Citizens residing abroad and wishing to file a family based petition on behalf of their Immediate Relatives.

 

Q.   My fiancée or family member already applied for a tourist or student visa and was denied. Will this affect his/her eligibility for a K-1 fiancée visa or an immigrant visa as an Immediate Relative?

   A.     With the important exception set forth below, the answer is usually No. In all likelihood, the denial was based on section 214(b) of the Immigration and Nationality Act (INA), the problem being that the applicant failed to overcome the presumption of "immigrant intent" (i.e., as a non-immigrant visa applicant, it is presumed that it is the intention of the applicant to violate their visa and remain in the U.S.). The reason for the denial was likely expressed to applicant as their failing to show "sufficiently strong ties to the home country". IF the denial was based only on section 214(B), such a denial will not prejudice a later fiancée or spouse petition provided that the applicant was truthful about all material facts in their earlier application. If the fiancée or family member was denied on specific legal grounds of inadmissibility, for example, prior criminal convictions, prostitution, prior U.S. visa violations, health related grounds or, fraud/misrepresentation, the answer is probably Yes, it will cause problems in the later application.

 

It is likely that the same grounds of inadmissibility will apply. In some cases, it is possible to obtain a waiver of the grounds of inadmissibility, allowing for issuance of the visa. Your attorney can advise you as to whether a waiver application may be filed for the specific grounds of inadmissibility and, provide an opinion on chances for granting of a waiver, only after a careful review of the facts of your individual case.

 

Q.   My fiancée/spouse and I initially met on the internet. Is this going to be a problem?

   A.    As recently as ten or twelve years ago, it was a rather rare occurrence for our office to have a fiancée or spouse case involving an initial meeting or, the development of the relationship, on the internet. At that time, it was our belief that such cases were somewhat more problematic. They did not fit most people's traditional notions of how relationships begin and develop, including the prevailing notions of (what was then INS) adjudicators and consular officers. It just didn't fit their notions of "dating" and, was likely subject to more scrutiny and suspicion.

 

In part, this was also a legacy of perceptions (and misconceptions) about "mail order bride" services and questionable marriage brokers. A great deal has changed, just in the last few years. Meeting people through the internet is now a widely accepted and understood phenomenon. Although such relationships may once have carried something of a stigma with some government decision makers, that seems no longer to be the case in any practical sense.It is our belief that no "internet meeting" has been prejudiced or treated unfairly based simply on the fact that the couple met through the internet

 

Please Note: Recent changes to the Violence Against Women Act (VAWA) now mandate the provision of certain information relating to "International Marriage Brokers" if they were involved in introducing you to your fiancée or spouse. Specifically, the name and address of the "International Marriage Broker" must be provided. This is primarily to insure that the agency involved is in compliance with regulations requiring that they screen U.S. citizen customers to make sure that they are not on one of the registered sex offender databases. If you met your wife or fiancée through an online introduction service and, are unsure whether they fall under the statutory definition of an "International Marriage Broker", your attorney can advise you further as to a specific agency or service.

 

Q.   This is not my first petition. I filed a petition previously for my now ex-spouse but we are now divorced and I am ready to marry or, have already married, a different alien. Will the fact that I have previously filed a petition for an immigrant benefit for someone else be a problem in this case?

   A.     Up until relatively recently, the answer was generally No, not a serious problem, subject to the caveat that all previous petitions, and the associated family relationships, were entered into in good faith and were represented honestly to the U.S. Government at the time the previous applications were made. Recent legislative provisions, the future effect of which are somewhat unclear at this time, may in some ways adversely affect persons who the Government refers to as "multiple filers". At the very least, "multiple filers" will be entered into a "multiple filer database" so that the Government can more carefully track and scrutinize these cases in the future. In part, this is an effort to prevent fraud and, subsequent filings may be subject to more intense scrutiny.

 

In part, it is also an effort to prevent abuse of foreign women entering the U.S. as fiancées or spouses of  U.S. citizens. There appears to be a policy perception on the part of legislators or, interest groups with influence on the legislative process, that there is a an increased risk of domestic abuse in cases involving marriages between U.S. citizens and foreigners generally and, in cases of "multiple filers" specifically. To date, we have seen no substantial statistical evidence to support this policy premise and, it may be correct or incorrect. Regardless, the premise appears to be accepted by a sufficient number of legislators to enact new legislation. This does not mean that you should avoid filing a new petition for your fiancée or spouse simply because you have previously filed a similar petition. Just be aware that your new petition may be subject to a somewhat greater level of scrutiny than would otherwise be the case. It does not mean that you will be denied. If your relationship is legitimate, based on your love and commitment for one another, you should proceed with your plans to be together notwithstanding the possible additional administrative hassles.

 

Q.   There is a substantial age difference between my fiancée/spouse and I. Is this a problem?

  A.      We understand that this is a sensitive area of concern for many petitioners and, a cause for considerable apprehension for some. In most cases, reasonable age differences are generally not the problem that the parties, particularly the American partner, fear that it might be provided, that the case is properly prepared and presented. The subject is, nonetheless, deserving of a more complete explanation. Asian cultures view disparities in age between marriage partners differently than does American culture. Historically in Asia, substantial age differences were not only condoned, they were strongly encouraged for a variety of cultural and practical reasons. That is much less true today although, wider disparities in the ages of marital partners remain both much more common and more widely accepted in Asian cultures than in Western cultures. Couples with age differences of 25-30 years or more are not at all uncommon. If you are genuinely in love and committed to one another, it is certainly not something to be feared or to be apprehensive about. We believe that successful marriages come in all shapes and sizes.

 

Q.   My fiancée speaks very little English and, I speak almost none of her language. Is this a problem?

  A.     It may be but, probably not for the reasons you think. While the level of your fiancée or wife's English language ability is not specifically in issue, the bona fides of your relationship certainly is. Naturally, an interviewing officer will be interested in whether the two of you sufficiently share a common language as to make a real relationship possible. She does not have to speak English to a high level of proficiency but, you do need to be able to communicate sufficiently about basic life subjects to develop a bona fide bond of love and an intention to marry. In circumstances where the fiancée does not speak English to any reasonable degree, we strongly encourage you to use the processing time in their case to good purpose by enrolling the beneficiary spouse or fiancée in English language lessons. Additional English language proficiency will certainly make her consular processing easier but, much more importantly, it will make her chances for happy and successful assimilation into the U.S. much better. The multiculturalism movement in the U.S. notwithstanding, it is a fact that anyone trying to start a new life in the U.S. without the ability to speak at least basicEnglish is operating at a serious disadvantage.

 

Q.   My Thai fiancée and I were married in a traditional Buddhist ceremony at her family home upcountry. Does that mean that I can no longer file for her as a fiancée and must file for her as my wife (Immediate Relative)?

  A.     If you had only a customary ceremony and did not register your marriage at the Amphur (local District Office) you may still file for her as your fiancée. If you registered your marriage at the Amphur, you must file for her as your spouse. Thai marriage customs cause a considerable amount of confusion among foreigners. There are effectively two kinds of "marriage" practiced in Thailand. The first type is a customary or traditional marriage involving a religious ceremony (usually Buddhist) and party for the family and neighbors. While the family and community may recognize the couple as married, such a marriage confers no legal marital status, either for the Thai Government or the U.S. Government. Hence, in the eyes of the law you are not yet legally married and may file for her as your fiancée or, proceed with a registration of the marriage in Thailand after which you must file for her as your spouse.

 

The second type of marriage is a "registered marriage". In order to effect a legally valid marriage to a woman in Thailand, an American must first execute an affidavit of ability to marry at the U.S. Embassy. He must then have the English language affidavit translated to the Thai language and, have the translations "legalized" at the Thai Foreign Ministry offices in Thailand. The couple must then go to any Amphur (local District Office), with the "legalized" affidavit in hand and, register their marriage. Only when those steps have been completed are the couple legally married and the marriage will be recognized as legally valid, not only by the Thai Government but by the U.S. Government as well. Please note: Under Burmese (Myanmar) law, a traditional (usually Buddhist) wedding ceremony may, in some circumstances, be deemed to constitute a valid, legal marriage by operation of law, including attachment of property and inheritance rights

 

Q.   I have been supporting my fiancée for the past year and she has not been employed during that time. She also has very little savings. Is this a problem?

   A.     No. Unlike a tourist visa, your fiancée or wife does not have to demonstrate strong ties to the home country such as current employment, savings, property ownership, etc. A current job, savings or property holdings is not required for eligibility for a fiancée or spouse visa. Her past employment history is relevant of course but, not as an eligibility issue. Rather, being able to document her employment has to do with her basically "proving a negative", i.e., that she was not engaged in any illegal or immoral activity which might subject her to a legal ground of inadmissibility.

 

Q.   I know that my fiancée or wife is subject to a legal ground of inadmissibility. I have consulted several "visa services" who advised me to lie about the facts or, to falsify her employment history. I don't want to break the law but, I don't want my fiancée's visa denied either. What should I do?

  A.    Run, don't walk, away from anyone who advises you to lie to the U.S. Government or to conceal a material fact in any U.S. immigration or visa application. They are counseling you to commit a felony punishable by up to five years in a Federal Penitentiary and up to a $250,000 fine for each such act. If that doesn't convince you that the U.S. Government is dead serious about this issue, being caught engaging in such fraud may also effectively prevent your fiancée or wife from ever getting a visa approved. Such shady operators will often try to convince you that it is "smart" to conceal adverse facts or, that you are "expected" to lie about such things and that consular officers and other government officials really don't want to know the truth. They are absolutely wrong. The short answer is, don't do it. If a legal ground of inadmissibility exists with respect to a particular applicant, our advice is to follow the law, tell the truth and, seek the appropriate legal remedy. In many cases, a waiver of a ground of inadmissibility may be available which will allow your fiancée or spouse to ultimately be approved for a visa. It may take longer and cost more but, if the waiver issue is decided in your favor, you can put the issue behind you forever.

 

Q.   I am an American expat and have been living and working in Philippines for 3 years. I married a Filipina woman one year ago and we are now considering relocating back to the U.S.Are there any differences in my case that I should be aware of because I am not residing in the U.S.?

   A.     Yes. Depending on your Philippines visa and/or work permit status, you may qualify for "overseas USCIS jurisdiction" for your immediate relative petition which may give you substantial advantages over U.S. residents in terms of processing times and procedures. Overseas USCIS filing is sometimes mistakenly referred to as "Direct Consular Filing", a much less common procedure in which petitions are filed directly with a U.S. Embassy in countries with no USCIS presence. USCIS, the Federal agency with initial jurisdiction in this type of case, has 15 overseas offices with regulatory authority to adjudicate Immediate Relative petitions. However, in order to limit their caseloads and to avoid "forum shopping" by applicants, each USCIS overseas office determines, as a matter of administrative discretion, how they define "residence in the consular district" for jurisdictional purposes

 

Q.   I (the U.S. Citizen petitioner) have a couple of arrests or convictions on my record. I know that criminal background checks are part of the immigration process. Will this prevent me from filing a petition for my fiancé or spouse?

  A.     Historically, the answer was no, previous criminal convictions or arrests of the U.S. Citizen petitioner were not relevant. That is not entirely true any longer, as set forth below. The alien Beneficiary must, of course, demonstrate their good moral character and that they are not subject to any legal grounds of inadmissibility, including lack of disqualifying criminal arrests or convictions. All alien Beneficiaries over the age of 16 are required to produce police clearances from every country in which they have resided for 6 months or more since the age of 16. Conversely, the U.S. citizen petitioner is not required to produce police clearances. Keep in mind that it is the alien's admissibility to the U.S. which is at issue, not the petitioner's. Please note, however, that a U.S. citizen petitioner who has prior arrests or convictions for crimes of domestic violence may have additional issues to address under recent provisions of the Violence Against Women Act (VAWA), particularly if he has filed more than one USCIS petition. Other recent changes to VAWA now require most internet "introduction services" to complete a sex offender registry check on men utilizing their services. To the extent that these provisions are intended to protect alien women from domestic violence or to prevent them from becoming the victims of sexual predators after they enter the U.S., we wholeheartedly support them. Recent changes to the Violence Against Women Act (VAWA) now mandate the provision of certain information relating to past criminal conduct of the Petitioner in certain cases. Specifically, you may be required to answer the following questions:

 

  • Have you ever been convicted by a court of law (civil or criminal) or court martialed by a military tribunal for any of the following crimes (even if your records were sealed or otherwise cleared or, if anyone told you that you "no longer had a record")?
  • Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse and stalking.
  • Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment or an attempt to commit any of these crimes.
  • Three or more convictions for crimes relating to a controlled substance or alcohol not arising from a single act.
  • Finally, provision of the "Adam Walsh Act" put severe limitations on the ability for persons convicted of specific crimes against minors and, registered sex offenders, to petition for the immigration of an alien spouse. Please note that there is a waiver of limitations available in some cases but, the circumstances under which such waivers are granted is extremely complex and beyond the scope of a brief online discussion
  • While prior criminal convictions do not necessarily mean that your case will have problems, in most cases where one of the foregoing questions is answered in the affirmative, it is mandatory to provide information relating to the criminal history to USCIS and to the alien fiancée or spouse.

 

Q.   I was recently laid off from my job. I am aware that I have to file an Affidavit of Support to demonstrate that my fiancée or wife will not become a "public charge" after entering the U.S. and, that I am capable of supporting her. How does my current unemployment effect my case?

   A.     In order for your fiancée or spouse to be issued a visa, you must demonstrate that you are able to support her at a level of at least 125% of the U.S. poverty level for a household of your size. If you are unable to demonstrate sufficient income, you may be able to qualify by showing sufficient assets which are convertible to cash within one year. In general, you must first calculate the amount of income that you must prove, then subtract the amount of your current income. If you can show tangible assets in an amount five times the shortfall between the amount that you need to show and the amount of income that you can actually show, that is usually sufficient. If not, you will likely need to obtain a joint sponsor, usually a family member or close friend, to execute an Affidavit of Support.

 

Q.   What are the requirements for the Fiancée visa?

   A.      You must meet in person before you can file the petition You and your Fiancée must both be single, If either of you have been previously married, you will need all filed final divorce decrees, death certificates or annulments, The minimum income requirement is currently $18,212 for a family of two. If you are an Alaska resident, the minimum income is $22,762. If you are a Hawaii resident, it is $20.950, If your income is less than the minimum requirement you will need to get a co-sponsor, You will provide financial documentation as proof that you can support your intended wife and all members of your household, You must have 10-15 photos of you with your Fiancée and, if possible, of you with her family, You must have documented evidence of communication spanning your relationship. Best evidence: emails talking about your lives (about 30 pages) & telephone bills with her phone number on it. Copies of IM chats are a poor choice and not always accepted. Phone cards and video chats are not accepted as they are not documentable! LACK OF EVIDENCE CAN RESULT IN VISA DENIAL!

 

Q.   If my Fiancée has children, can they come to the US with her?

   A.     Your Fiancée's children under the age of 21 may accompany your Fiancée on an approved K-1 visa.

 


Q.   How much does it cost?

   A.     The USCIS filing fee for the K-1 petition is currently $340. There will also be additional fees associated with the Embassy interview totaling about $700. You will also be responsible for all travel expenses.

 

Q.   What happens after we file?

  A.     The petition is approved by the USCIS, the National Visa Center, and then it is sent to the US Embassy in the country in which your Fiancée is currently living. She will have her interview there.Your Fiancée will have a medical exam prior to her Embassy interview.Immediately prior to her Embassy interview your fiancée will obtain a police clearance for every country where she has lived after the age of 16 for 6 months or longer.You will provide your fiancée with financial documents to hand-carry to her interview as proof that you can support your intended wife and all members of your household.After her Embassy interview, your Fiancée will usually receive her visa within 14 business days.Once the K-1 visa is granted, your Fiancée has 6 months to come to the USA.Once in the US, your Fiancée has 90 days to marry you or is required to return to her country.Once you are married your wife is required to file for a Marriage Green Card (Adjustment of Status) to obtain her residency status and avoid deportation.

 

Q.   What are the requirements for the Spousal Visa?

  A.      You must marry in her country. Please contact the US Embassy in her country for specific requirements for marriage.If either of you has been previously married, you will need all filed final divorce decrees, death certificates or annulments.The minimum income requirement is currently $18,212 for a family of two. If you are an Alaska resident, the minimum income is $22,762. If you are a Hawaii resident, it is $20.950.If your income is less than the minimum requirement you will need to get a co-sponsor.You will provide financial documentation as proof that you can support your wife and all members of your household.You must have 10-15 photos of you with your wife and, if possible, of you with her family.You must have documented evidence of communication spanning your relationship. Best evidence: emails talking about your lives (about 30 pages) & telephone bills with her phone number on it. Copies of IM chats are a poor choice and not always accepted. Phone cards and video chats are not accepted as they are not documentable! LACK OF EVIDENCE CAN RESULT IN VISA DENIAL!

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