Articles Posted in Spouse/Fiance Visas

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immigration-300x188The Department of State and USCIS are cracking down on fraud and/or misrepresentation, particularly on non-immigrant visa applications such as B1/B2 – visitors visas and F-1 – student visas. Fraud and Misrepresentation findings are skyrocketing so you need to be aware of the increased attention being paid to nonimmigrant visas.  Misrepresenting your intention on a visitor’s visa, for example, can have drastic effects on future immigration benefits you might otherwise be qualified for.  For example, if you inform any Consulate Officer, Department of Homeland Security (DHS) or Customs & Border Patrol (CBP) or Port of Entry Officer that you are coming to the United States to visit,  you may be opening yourself up to a fraud and/or misrepresentation finding if you, for example, marry a U.S. Citizen during your vacation stay, and apply to adjust status in the U.S.

In the past, immigration policy on the above scenario was to apply  a 30/60 day rule.  If you entered on a Visitor’s visa and married a U.S. citizen within 30 days, the presumption was that you married solely for the purpose of an immigration benefit; however, the presumption could be rebutted with adequate evidence of a bona fide marriage.  Marriage between 30 an 60 days of entry, followed by application to adjust status, could infer that there was an intent to misrepresent, which also could be rebutted by evidence of a bona fide relationship. After 60 days there was no basis for a misrepresentation finding.

Recently, the Department of State updated its Foreign Affairs Manual (FAM) to state that any conduct inconsistent with representations made on applications, to DHS, CBP or ICE agents, or Port of Entry officer within 90 days, can result in a finding of willful misrepresentation.  Inconsistent conduct for a B1 visa holder, for example, would be engaging in unauthorized employment, marrying a US citizen and applying for adjustment of status, enrolling in a course of academic study, or any conduct for which a change of status would be required.  This new policy can drastically affect those entering under Visa Waiver Program, where duration of stay is 90 days.

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USA_visa_issued_by_Shenyang_2012-300x208On June 29, 2017 the Department of Homeland Security revised their initial definition of the “close family” exception to the travel ban.  (See Blog Entry June 27, 2017) [The designated countries are Syria, Iran, Somalia, Sudan, Libya, Yemen]  Now, a close familial relationship is defined as a parent (including parent-in-law), spouse, fiance, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and includes step relationships.  “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other “extended” family members.  This means that those in the close family relationship category from the six designated travel countries (Syria, Iran, Somolia, Sudan, Libya and Yemen) are eligible to apply for immigrant and nonimmigrant visas, although they will need to establish a bona fide relationship with the person in the United States.   DHS published FAQ’s stating that USCIS will continue to interview refugee applicants from the six designated countries, however they will also have to prove a bona fide relationship with a person or entity in the United States.

We at Kalita Law Group will continue to update you as DOS and DHS sort out implementation policy.

 

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One way to Adjust Status to permanent residence status in the United States is by mringsarriage to a U.S. Citizen.  Through adjustment of status, an undocumented person may achieve permanent residence status without returning to his/her native country to consular process.  This has many benefits, such as not having to trigger the unlawful presence “bars” by leaving the country.  But not everyone qualifies for this priviledge.  The first qualification for adjustment of status is that you last entered the United States on some sort of legal visa and inspection by a U.S. Immigration Officer.  This can be a visitors visa, student visa, guest worker, etc.  Even if you overstayed your permitted length of stay, by entering with inspection and marrying a U.S. Citizen you become an immediate relative, and are thereby meet the first qualification.  The second qualification is that you must be “admissible.”  By “admissible”, that  means you have no criminal history, among other things, that would fall under the enumerated grounds of “inadmissibility.”  Previous negative immigration history such as prior orders of removal could bar you from adjusting status.   If you do apply to adjust status through marriage, then you must be prepared to prove that your marriage was bona fide and not contracted solely for the purpose of obtaining an immigration benefit. If you have previously filed to adjust status through a previous marriage, and your application was denied because USCIS determined that marriage was fraud, then you likely will be prohibited from adjusting status through a subsequent marriage.  Adjustment of Status can be complicated and there are many pitfalls in the process.  Seek the counsel of an attorney experienced in family immigration to help you apply with the proper evidence for a successful application.

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In May of this year, USCIS proposed fee increases for a multitude of immigration services. The fee increases did not go into effect immediately as the public has to be allowed 60 days to comment on the proposed changes. Those 60 days have come and gone and it appears the fee increases are here to stay. While still not in effect, the fee increases will likely go into effect over the next couple of months. The Department of Homeland Security is required to review its fee structure every so often under federal law. According to the Department, the last time fees were increases was in 2010. USCIS is a fee based agency and says that if fees are not raised, the agency will face a $560 million budget shortfall next fiscal year. A list of the most popular immigration services along with their current fee and proposed fee is listed below:

Fee Increase

Some good news is that the $85 biometric fee for fingerprints will remain the same. Additionally, if you file before the fee increase goes into effect, you can file under the lower fee rate. As of this writing, there is no official date that these fees are expected to go into effect. For a the full list of fee changes, click here: Full List Fee Increase

If you have any questions about immigration fees or have an immigration issue you’d like to discuss, you should be sure to contact an experienced immigration attorney.

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1121901_couple_with_engagement_rings_2As a Chicago immigration lawyer focused primarily on the family immigration, one of the questions I am asked most frequently is – “which is better, to bring my overseas fiancé to the United States and marry in my home state, or marry overseas and apply for an immediate relative visa for my spouse?” Although it depends on the facts of your particular case, all things being equal, the Immigrant Visa overseas route may be best for most cases.

A United States citizen can bring a foreign national spouse or fiancé to the United States in one of two ways: K-1 (fiancé) visa, or by applying for an immigrant visa after marriage and green card processing through the Consulate. In most cases, I recommend the Immigrant visa route for the following reasons:

  • Processing time is about the same. Many people are under the misconception that the fiancé visa route is faster. While this was true in the past, currently the processing times are just about equal for the K-1 and the IV.
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A lot of people think that in order for them to bring a loved one to the United States from another country, they must beRings married. But that’s not true. The United States has a visa for fiancés that allows you to petition for you fiancé to come to the United States prior to your actual marriage.

U.S. citizens who want to bring their foreign citizen fiancé to the U.S. to marry and live here should apply for a K-1 fiancé(e) visa to sponsor their fiancé’s travel to the U.S. The K-1 visa allows the foreign national to come to the U.S. to marry their U.S. citizen fiancé(e) within 90 days of their arrival. The marriage must take place within those 90 days or your fiancé(e) will be required to leave the U.S.

In order to qualify for a K-1 visa, you must meet the following requirements to be eligible to petition for a fiancé(e) visa:

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The process of filing a K-1 fiancé(e) visa for a loved one can be a complicated process from beginning to end (for a more in depth view on the initial steps of filing a K-1, please see here). When you apply for adjustment of status in the United States and your green card is approved, it is initially only on a conditional basis. In order to be granted a permanent status, that conditional status must be removed in two years.

FAM_000001865178.jpgThe process begins once the K-1 visa has been granted. You will have ninety days upon arrival to the United States to be married, or else you will be required to leave. After your marriage, you must apply for adjustment of status to that of a permanent resident. Once approved, you will be sent a conditional green card. On the back of that green card will be the two-year date that you must apply by, in order to remove your conditional status.

When applying to remove conditions on your permanent residence card, you and your significant other should apply jointly, and you are allowed to send in your application ninety days before the deadline. It is highly recommended that you do so, in order to allow for a sufficient amount of time to prepare your application. As long as USCIS receives your application before the deadline, they will grant an additional twelve months to your visa while your application is under review.

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rings.jpgU.S. citizens who want to bring their foreign citizen fiancé to the U.S. to marry and live here should apply for a K-1 fiancé(e) visa to sponsor their fiancé’s travel to the U.S. The K-1 visa allows the foreign national to come to the U.S. to marry their U.S. citizen fiancé(e) within 90 days of their arrival. The marriage must take place within those 90 days or your fiancé(e) will be required to leave the U.S.

You must meet the following requirements to be eligible to petition for a fiancé(e) visa:

  • The petitioner must be a U.S. citizen.
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    PR Card.jpgPermanent residence is not available to foreign nationals who marry U.S. citizens solely for immigration purposes. Immigration officers see such marriages as shams, so they are very careful about investigating marriage cases. As a result of these suspicions, if you have been married for less than 2 years when your permanent resident application is approved, you will receive a conditional permanent resident card. A conditional permanent resident card is valid for 2 years. In order to retain your permanent resident status, you must file a petition to remove the conditions within the 90 days before the card expires. This post will focus on applying to remove conditions on your permanent resident status if you are still married to the same U.S. citizen or permanent resident after 2 years.

    If you and your spouse are still married, you should jointly file a Petition to Remove the Conditions of Residence, form I-751. A crucial part of this form is submitting evidence of your relationship to show that the marriage was entered in good faith and not for the purpose of evading U.S. immigration laws. Therefore, you should keep as many documents as you can to prove the validity of your marriage from the date of your marriage to the present date. Examples of such documents include, but are not limited to:

    • Birth certificates of children born to your marriage
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    mex border.jpegThis week I want to take some time away from the Deferred Action for Childhood Arrivals Program (DACA) and switch back to the topic of the anticipated I-601 stateside provisional waiver procedures. Provisional waivers for unlawful presence was introduced under rulemaking proposed by USCIS on March 30, 2012. (The Rulemaking is not final as yet) Under the new rules, certain immediate relatives of U.S. Citizens may apply for a waiver of the unlawful ground of inadmissibility from the United States, if they can demonstrate that their removal would cause extreme hardship to a U.S citizen spouse or parent. This new rule can have profound implications to many immigrants with unlawful presence who are the spouse or adult child of a US Citizen. Although the I-601 waiver application is currently available to those with unlawful presence, you must leave the country for the immigrant visa process, forcing you to remain in your home country for six months to a year or more while the waiver is being processed. If granted a provisional waiver here in the United States, you still have to return to your home country to process your immigrant visa, but the time spent away from your family in the Unites States would be significantly lower. Most importantly, you would know if your waiver was granted before you leave the country – significantly improving your chances of being granted a visa (assuming you do not have any other grounds of inadmissibility.)

    While the provisional waiver can make your life easier by allowing you to remain with your relatives in the United States, it does not change the existing standards for unlawful presence and extreme hardship. Extreme hardship is a threshold issue, and must be thoroughly documented. It is not enough that you would be sad or depressed if forced to be separated from your family. The standards are tough, and are defined mostly in the case law, decisions of Bureau of Immigration Appeals and Administrative Appeals Office. It is important you find an attorney who is familiar with the current state of the law regarding extreme hardship, and who has experience in documenting the hardship to the satisfaction of the adjudicator.

    In order to apply for a provisional waiver, you must have an approved I-130 petition. You must be physically present in the United States and at least 17 years old. You must be actively pursuing an immigrant visa, and have paid the Department of State Immigration Processing Fees. You cannot be subject to any other grounds of inadmissibility, and must demonstrate that the refusal of your immigrant visa would result in extreme hardship to a United States spouse or parent.