Monthly Archives: July 2015

Applying for a Green Card Following Entry Into the U.S. as a Visitor

Posted on July 31, 2015 | Comments Off on Applying for a Green Card Following Entry Into the U.S. as a Visitor

Foreign nationals who enter the U.S. on a B-1/B-2 visitor visa or on the Visa Waiver Program (VWP) may file for their green card within the U.S. – instead of apply for their immigrant visa aboard – if they fit in the Immediate Relatives category. A common example is when the person enters into a bona fide marriage to a U.S. citizen following entry to the U.S. as a visitor. But the green card applicant’s true intentions when he applied for the visitor visa (or ESTA) or requested entry in visitor status may be called into question.

The visitor visa and VWP program allow foreign nationals to enter the U.S. for tourism or business for a temporary period. Using the visitor visa or VWP to enter the U.S. with the specific intent of immigrating to the U.S. carries risks and consequences.

Overstaying their non-immigrant status in the U.S., in and of itself, does not prevent immediate relatives from adjusting to permanent resident status. Immediate relatives include the U.S. citizen’s spouse, children under age 21, and parents (if the U.S. citizen is 21 or older). In addition, a general desire to immigrate is generally fine. Problems, however, arise when there is willful misrepresentation about the purpose of the trip.

What are the risks and consequences of the visitor-to-green card holder option? 

1. Foreign national may be charged with fraud or willful misrepresentation to obtain immigration benefits

Immigration authorities expect fiancé(e)s of U.S. citizens to apply for a K-1 visa and spouses, parents and minor children of U.S. citizens to apply for an immigrant visa at the U.S. Consulate abroad, rather than enter the U.S. as a visitor and then apply for a marriage-based green card.

The U.S. Department of State adopted a 30/60 day rule when a foreign national violates his nonimmigrant status.  When a foreign national marries a U.S. citizen and takes up residency in the United States within 30 days of entry, the DOS presumes that he misrepresented his intent in seeking a visitor visa or entry. If the marriage or green card application occurred after 30 days but within 60 days of entry, the DOS does not presume there was misrepresentation. But if the facts provide a reasonable basis to believe the foreign national misrepresented his intent, the DOS allows him to present rebuttal evidence. If the marriage or green card application occurred after 60 days, the DOS does not consider such conduct to constitute fraud or willful misrepresentation to obtain immigration benefits.

USCIS is a separate agency from the DOS and the Board of Immigration Appeals has held that immediate relatives are exempt from the 30/60 day rule. In other words, immediate relatives of U.S. citizens who wish to apply for adjustment of status may do so at any time, even within 30 days of entry into the U.S.

[See updates below regarding the switch from 30/60 day rule to 90 day rule.]

Nevertheless, USCIS is often persuaded by and frequently follows the DOS policy. During the adjustment of status process, USCIS may find that the applicant misused the visitor visa or VWP by claiming to be a mere visitor at the U.S. port of entry, when in fact he intended to remain in the U.S. and file for a marriage-based green card.

USCIS might be especially suspicious if you get married or apply for a green card within 30 to 60 days of entering the U.S. They might overlook this conduct or you might be able to convince the USCIS officer that you decided to marry or apply for a green card only after you arrived in the U.S.

If USCIS is not convinced by  your explanation, it will deny your marriage-based green card application on the basis of immigration fraud or misrepresentation, unless you qualify for and receive an I-601 waiver of inadmissibility.  (To obtain an I-601 waiver, applicants must show a qualifying relative  – i.e. U.S. citizen or permanent resident spouse or parent – would suffer extreme hardships if  they are not granted the green card and allowed to stay in the U.S.)

At the U.S. port of entry, the U.S. Customs and Border Protection (CBP) officer may also question the visitor visa holder or VWP entrant about the purpose of his visit.  If you truthfully inform the customs officer that you are coming to the U.S. to get married or visit your U.S. citizen fiancé(e), he could find that you have no intent to leave the U.S. before your authorized stay expires.  The officer may then issue an expedited removal order or request that you withdraw your application for admission into the U.S. In some cases, your visitor visa may be cancelled or revoked and you may be barred from using the VWP.

It can be tempting to just tell the U.S. Consulate or customs officer that you are only coming to the U.S. for a temporary visit, when in fact you intend to engage in other conduct that reflects immigrant intent. While preconceived intent to immigrate to the U.S. does not bar immediate relatives from adjusting to permanent resident status, fraud or willful misrepresentation to obtain immigration benefits does.

2. Foreign national is subject to removal from the U.S.

Although overstaying the B-1/B-2 or VWP authorized period does not bar adjustment of status, it does make the foreign national removable from the U.S. The maximum period of stay in B-1/B-2 status is typically 6 months.  The maximum period of stay on the VWP is 90 days.

When the foreign national remains in the U.S. following expiration of the B-1/B-2 authorized period, he is subject to being placed in removal proceedings due to the overstay. Because VWP entrants waive their right to contest any action for removal, except when applying for asylum, they may be ordered removed without being referred to an Immigration Judge.

The filing of an I-485 application tolls unlawful presence, but does not provide any lawful status. If the adjustment application is denied and the person is not maintaining any nonimmigrant status, he is not only subject to removal, but also begins to accrue unlawful presence.

Departure from the U.S. after accruing more than 180 days to less than 1 year of unlawful presence in the U.S. triggers a 3-year bar from the U.S. The bar is 10 years if the unlawful presence lasted for 1 year or more. To obtain an immigrant visa prior to when the  3/10 year bar expires, the foreign national must first receive an I-601 waiver of inadmissibility. A foreign national who was ordered removed from the U.S. would also need to obtain advance permission to re-enter the U.S. by filing a Form I-212 application (unless the 5, 10 or 20-year bar, resulting from the removal order, has passed).

Visa fraud (misusing the visitor visa or VWP to gain entry into the U.S.) is also grounds for removal from the U.S. Instead of being granted a green card, the foreign national who entered on a visitor visa may end up in removal proceedings, and the VWP entrant may be issued an expedited removal order, if they are found to have committed visa fraud.

When does the visitor-to-green card holder option work best?

1. Foreign national met the U.S. citizen spouse or began committed relationship after he entered the U.S.

In many cases, foreign nationals meet their U.S. citizen spouses-to-be or enter into a committed relationship or get engaged only after they arrive in the U.S. on a visitor’s visa or on the VWP, either during the authorized stay or after the authorized stay expired.

A bona fide marriage between the U.S. citizen and foreign national allows the couple to file a one-step application with USCIS (i.e. US citizen files I-130 immigrant petition and foreign national files I-485 application for adjustment of status, concurrently.)  Upon entry, the foreign national might have a general desire to remain in the U.S., but no specific plans to immigrate because he had yet to meet or become engaged to the U.S. citizen spouse.

The longer the time period between the visitor visa or VWP entry and the filing of the green card application, the easier it is for the foreign national to prove he did not commit fraud or willful misrepresentation to gain entry into the U.S.

2. Foreign national is undecided about immigrating to the U.S. at the time of entry to the U.S.

Entering the U.S. on a visitor visa or on the VWP to spend time with a U.S. citizen petitioner is a permissible activity. It is possible for a person to enter the U.S. in visitor status to maintain a long-distance relationship with a U.S. citizen fiancé(e), or to get married to the U.S. citizen – as long as the intent is to timely depart the U.S. before the authorized stay ends.

Not all foreign nationals want to immigrate to the United States. Some are from developed countries or run successful businesses or hold lucrative professions in their home countries that they do not want to relinquish.

Fraud or willful misrepresentation occurs when you intend to remain in the U.S. permanently, but you tell the consular officer or customs officer that you are coming to the U.S. for a temporary visit. In general, silence or failure to volunteer negative information that is not specifically requested does not amount to fraud or willful misrepresentation.

Due to the 30/60 day rule, it is best to wait to file the marriage-based green card application at least 91 days after entry on a visitor visa or on the VWP.  If the application is made after 90 days, USCIS normally assumes the foreign national acted in good faith and was undecided about immigrating to the U.S.

[UPDATE, August 1, 2017: The DOS replaced the 30/60 day rule with the 90-day rule, which establishes a presumption of willful misrepresentation “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry.” If such actions occur within 90 days of entry, a consular officer “may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.]

[UPDATE, September 10, 2021: The DOS updated its policy on the 90-day rule: If an individual engages in conduct inconsistent with their nonimmigrant status within 90 days of visa application or admission to the United States, the officer may presume the applicant made a willful misrepresentation. The officer must provide the applicant with the opportunity to rebut the presumption of misrepresentation. Inconsistent conduct includes the visitor marrying a United States citizen or LPR and taking up residence in the United States.  Examples of taking up residence are applicant signing a long-term lease or mortgage, having utility bills, and obtaining a local driver’s license.]”

Keep in mind that USCIS considers other evidence when determining your true intentions upon entry into the U.S. For example, to prove the bona fide nature of your marriage, you may submit letters, emails and other correspondences proving your premarital courtship. If any of these correspondences show you planned to marry and remain permanently in the U.S. following entry as a visitor, USCIS could find that you misused the visitor visa or VWP and thus deny your green card application.

Consult an Immigration Attorney to Help You Determine Your Best Immigration Option

Although filing for a marriage-based green card following entry to the U.S. as a visitor is quite common, there are risks and consequences involved in this process.

Applying for a K-1 fiancé(e) visa, K-3 nonimmigrant visa, or immigrant visa at the U.S. Consulate abroad  instead of entering the U.S. on a visitor visa – when the intent is to immigrate to the U.S. – is normally more appropriate.

If you are already in the U.S. and have concerns about proving your good faith non-immigrant intent upon entry into the U.S., you could leave the U.S. before your authorized stay expires and apply for the appropriate visa abroad. And if you leave the U.S. after your authorized stay expires, and you accumulated at least 180 days of unlawful presence prior to your departure, you will trigger the 3/10-year bar. In that event, you will need to obtain an I-601 waiver of inadmissibility to obtain the immigrant visa before the 3/10-year bar expires.

Consult an experienced immigration attorney to help you determine your best visa option and immigration route based on marriage to a U.S. citizen.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

 Photo by: Theophilos Papadopoulos

Comments Off on Applying for a Green Card Following Entry Into the U.S. as a Visitor

Posted in adjustment of status, bona fide marriage, green card, immigrant petition, immigrant visa, The Legal Immigrant - Immigration Blog

Tagged , , , , , , , , ,

Managing Client Expectations – Part II (after representation begins)

Posted on July 15, 2015 | Comments Off on Managing Client Expectations – Part II (after representation begins)

bullseye 6-7-15Managing client expectations is an ongoing process that begins even before you accept a case. You first need to determine why the prospect is seeking a lawyer and whether you can help meet his objectives. Once you’ve accepted the case, your meeting or exceeding client expectations is paramount to having a successful practice.

Here are tips for (setting and) managing client expectations in your legal practice after representation begins:

Turn reasonable expectations into achievable objectives

Rule 1.0(i), Minnesota Rules of Professional Conduct (MRPC) defines “reasonable” or “reasonably,” when used in relation to a lawyer’s conduct, as conduct of a reasonably prudent and competent lawyer.  The client might have a different perspective of what reasonable means.

Throughout the representation, watch for signs of unmet expectations. If the client’s expectations are unreasonable, work with them to set more realistic ones. Provide information on what factors are outside your control and why outcomes are largely unpredictable.

Focus on what you can influence to maximize the likelihood of success.  For example, in a marriage-based green card application case, immigration lawyers can help clients gather as much documentation to prove the bona fide nature of the marriage and thoroughly prepare clients for the green card interview.  But they do not control which documents are actually available, which immigration officer conducts the interview, and how long the process will take.

If the client’s expectations continue to be unreasonable, consider withdrawing from representation when possible and appropriate.

Communicate clearly and promptly

A substantial portion of ethics complaints arise from lack of communication with clients.

Rule 1.4 (a), MRPC, requires you to promptly inform the client of key decisions and circumstances and obtain informed consent; reasonably consult with the client about means to accomplish objectives; keep the client reasonably informed about the status of the matter; and promptly comply with reasonable requests for information.

At the outset, describe your communication policy and office procedures to your clients. For example, let them know whether to call you, instead of send you an email, on urgent matters. If your business phone does not accept text messages,  inform clients that you do not have this capability.

Likewise, you should educate yourself about your clients’ preferred method of communication and the depth and frequency of communication they want.  Do your clients prefer to use email instead of talk by telephone? Do they prefer to be called on their cell phone or on their work phone? May you contact them before or after normal business hours or on weekends?

From the start, describe the average time to get a matter resolved and the potential obstacles they might encounter along the way.  This makes it much easier for them to deal with negative outcomes or delays that do occur. Even if you’re just waiting to receive a decision and nothing’s happening in the case, touch base with the client. Make a courtesy call or send a status report via email to let them know you have not forgotten about them or their case.

Give clients regular and prompt updates on the status of their case, whether it’s good news or bad news. When there’s good news, briefly remind your client about what you did to influence the outcome.  Share bad news in person (or by telephone), but never by email or voice mail. Present corrective solutions or positive ways to move forward. Can the decision be appealed? Is a motion to reopen possible?

Although instant, open access to you is not always reasonable or possible, your prompt return of telephone calls, reply to emails or responses to letters is critical to meeting client expectations. If you need additional time to research their questions, get back to them within 24 hours and ask for more time to give them a more detailed response.

When communicating about their case, stay away from legal jargon. Use plain language that your client can easily understand. Repeat your explanation if necessary. When your clients fully understand  you, they are better equipped to make informed decisions and will more readily trust you.

Clear, timely communication with clients does not just involve discussions about their case, but also about fees and and bills. The attorney-client relationship will break down if you are not paid for the work you do. If a client is not paying their bills, find out why and reach a mutually acceptable solution.

Over-deliver and under-promise

Rule 1.3, MRPC requires a lawyer to act with reasonable diligence and promptness in representing a client. Giving clients a realistic assessment of how long a process takes will help to manage their expectations. This doesn’t give you freedom to procrastinate, which can adversely affect the client’s interests and destroy their legal position, as Comment 3 states. At the same time, refrain from giving overly optimistic projections.

Deliver before or or on the deadline. Be careful about the promises you make and fulfill the promises you do make. If you are unable to deliver when you said you would, inform the client well ahead of the due date. Of course, you cannot miss deadlines that are set by Court orders and other external, mandatory requirements.

End the representation gracefully and with professionalism

Rule 1.1.6, MRPC, allows a client to discharge a lawyer at any time. When a client wishes to terminate your representation before you complete the work, end the relationship gracefully and with professionalism. In some instances,  you can find out the reasons why and determine whether the relationship can be salvaged. But never pressure the client to stay with you or blame the client or anyone else for the breakdown in relationship.

A lawyer may also terminate representation when it will result in violation of the Rules of Professional Conduct or other law.  A client who insists on presenting fake documents or false information conflicts with the lawyer’s duty of candor to the tribunal, under Rule 3.3.

Rule 1.16(d) further states that upon termination of representation, a lawyer must take reasonable steps to protect a client’s interests, such as giving reasonable notice to the client, allowing time to hire another lawyer, turning over papers and property belonging to the client, and refunding any advance payment of fees or expenses that has not been earned or incurred.

When representation continues to the conclusion of the matter, a closing letter or end-of-representation meeting is appropriate. This helps to prevent any misunderstandings about ongoing representation.

Ending the relationship gracefully and with professionalism– no matter the circumstances – leaves the client with clear expectations for the future. In turn, this help you avoid ethics pitfalls and malpractice traps.

***

Managing client expectations is an ongoing process that continues throughout representation and even after representation ends.  How you conduct yourself during representation will influence the client’s level of trust in you. How you end the relationship will influence what the client says about you in the community.

Read our related article, Managing Client Expectations: Part I (before representation begins). 

***

This article provides general information only. Do not consider it as legal advice for any individual case or situation.   The sharing or receipt of this information does not create an attorney-client relationship.

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change.  Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

SUBSCRIBE           CONTACT

# # #

Photo by:  Asim Barwani

Comments Off on Managing Client Expectations – Part II (after representation begins)

Posted in competence, diligence, The Productive Lawyer - Productivity + Lawyer Wellbeing Blog

Tagged , , ,

Managing Client Expectations – Part I (before representation begins)

Posted on July 15, 2015 | Comments Off on Managing Client Expectations – Part I (before representation begins)

bullseye 7-15-15Managing client expectations is critical to building your reputation, sustaining ongoing relationships, and getting referrals.

At the very least, it helps you avoid grievances, ethics complaints and malpractice claims from disgruntled clients.

Practice areas such as family law, criminal defense, and immigration law – where the personal stakes are high and confusion can easily occur – are especially problematic.

Here are tips for (setting and) managing client expectations in your legal practice before representation begins: 

Define the prospective client’s objectives

Managing your client’s expectations begins at the initial consultation when you discuss the specifics of the case for the first time, or even at the case evaluation when you receive the initial inquiry.

The first contact normally begins with the prospect calling or emailing your office, or filling out a contact form on your firm’s website.  This is typically followed by a brief conversation to determine whether you/your firm and the prospect are a good match. If you are, the next step is to set up a consultation.

The initial consultation is the first opportunity to clarify prospective clients’ objectives, find out what relief they are really seeking, and describe the potential solutions and obstacles.

Mindful listening is essential. When you truly understand the client’s concerns, fears, desires and hopes related to why they are seeking a lawyer, you are better able to develop a positive relationship.

Decide whether to take the case

Rule 1.1, Minnesota Rules of Professional Conduct (MRPC) requires the lawyer to provide competent representation (legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation). Rule 1.3 further requires the lawyer to act with reasonable diligence and promptness when representing a client.

The case could be very interesting and the issues could be very well within your expertise, but the client has unreasonable expectations.  Trust your gut instincts. Watch out for red flags. Has the prospect had multiple lawyers before meeting with you? Did he mention fee disputes or grievances against other lawyers? Does the prospect seem impatient and demanding? Do they want to file a lawsuit to mainly punish the other party, regardless of the merits?

At the outset, if you accept the case, you should explain your responsibilities (e.g. responding to telephone calls, providing zealous advocacy) and their responsibilities (e.g. paying their bills on time, providing necessary and truthful information).

Even if you do not accept the case, you are bound by the ethics rules whenever you give advice in circumstances in which a reasonable person would rely on such advice.  Remind the person of important deadlines and statute of limitations, and confirm that you are declining the case, preferably in writing.

Clarify who the client is (when third parties are involved)

Having third parties involved in the case can break the attorney-client privilege and prevent the lawyer from offering candid advice.  Third parties often include a trusted friend or wise family member who can more articulately explain the facts of a case. They can also include a financially stable friend or relative who pays the legal bills. This is quite common in practice areas of criminal law, family law, juvenile law and immigration law.

Some clients, such as minor children and individuals with mental disabilities, need third parties involved. Rule 1.14 (a), MRPC, states that when a client has a diminished capacity, “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Comment 3 notes that the presence of family members or other persons, when necessary to assist in the representation, generally does not affect the attorney-client privilege. But the lawyer must look primarily to the client when making decisions for the client.

Rule 1.8(f), MRPC allows lawyers to accept fee payment from third parties, provided certain conditions are met.  You cannot accept fee payments from a third party unless: (1) the client gives informed consent or the acceptance of compensation from another is impliedly authorized by the nature of the representation; (2) the third party will not interfere with your professional judgment or with the client-lawyer relationship; and (3) you comply with the confidentiality rules under Rule 1.6, MRPC.

To meet client expectations, you must ensure that a third party’s involvement will not materially limit your representation.  For example, you must decline the case when  the third party is an existing client who presents a real conflict of interest. Even if there is no formal conflict of interest, a third-party payor’s interest might be so different from the client’s that it impairs representation.  Make it clear that disclosures will be limited to protect the attorney-client privilege, or obtain a waiver from the client (if appropriate).

Specify the fees and scope of representation

Rule 1.5(b) requires the lawyer to communicate the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible, preferably in writing.

When solos or small firm lawyer sue a former client for unpaid legal fees, they open themselves up to ethics complaints and malpractice suits. In some situations, the client was dishonest to begin with and never intended to fully honor the fee agreement. Other times, unpaid fees result from unmet expectations. For example, the client did not get the desired result and blames the lawyer for not accomplishing it.

In some states such as Minnesota, flat fees and availability (retainer) fees do not have to be placed in a trust account until earned: advance payments,  if agreed upon in writing, are the lawyer’s property but are subject to refund.

A written and detailed fee agreement will help prevent misunderstandings and set appropriate expectations. It should describe the scope of the representation (e.g. what you will do and will not do); how fees are calculated and charged (e.g. flat fee versus hourly fee); and when you will be compensated (e.g. monthly installments, retainer fee, advance payment of flat fee).

You may also include disclaimers in fee agreement, such as notifying the client you cannot guarantee favorable results, despite your best efforts. U.S. immigration lawyers, in particular, may inform clients (in writing) of potential consequences, such as possibly being placed in removal proceedings if USCIS denies their green card application and they are not maintaining lawful nonimmigrant status.

Set appropriate and reasonable expectations

Rule 2.1, MRPC requires the lawyer to exercise independent professional judgment and render candid advice in representing a client. You may refer not only to the law, but also to moral, economic, social, and political factors that may be relevant to the case. Providing a realistic assessment of the case and likelihood of success is part of complying with Rule 2.1.

You will not be hired unless the prospect believes you will make a difference and deliver positive results. You can promise to do high-quality work and provide the best service. But you cannot guarantee a successful outcome because there are so many factors outside your control.

You need to be clear on the fees and costs and how long it will likely take for the matter to be resolved. If there’s a huge gap between the desired outcome and the likely expense, you either help them reset their expectations or decline representation. Unreasonable expectations means you risk doing work that will not be appreciated or compensated.

***

Breakdown in attorney-client communication and mismanagement of clients’ expectations lead to unhappy clients and potential ethics complaints. Managing client expectations is an ongoing process that begins even before you accept a case. From screening clients to charging the appropriate fees, what you do and say at the outset affects the quality of the relationship.

Read our related article, Managing Client Expectations – Part II (after representation begins).

***

This article provides general information only. Do not consider it as legal advice for any individual case or situation.   The sharing or receipt of this information does not create an attorney-client relationship.

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change.  Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

SUBSCRIBE           CONTACT

# # #

Photo by: Chris Potter, stockmonkeys.com

Comments Off on Managing Client Expectations – Part I (before representation begins)

Posted in competence, diligence, The Productive Lawyer - Productivity + Lawyer Wellbeing Blog

Tagged

K-3 Nonimmigrant Visa for Spouse: Pros and Cons

Posted on July 11, 2015 | Comments Off on K-3 Nonimmigrant Visa for Spouse: Pros and Cons

miss youUpon marrying a U.S. citizen, a foreign national living overseas has two visa options to enter the U.S. and become a permanent resident.

The CR-1/IR-1 immigrant visa is the primary choice for all couples. Some couples also seek the K-3 nonimmigrant visa, which has advantages and drawbacks.

The spouse may use the K-3 nonimmigrant visa to enter the U.S. while waiting for approval of the immigrant petition. After arriving in the U.S., the K-3 visa holder may file a Form I-485, application to adjust to permanent resident (green card) status. The other option is to depart the U.S. and apply for an immigrant visa at the U.S. Consulate abroad, following approval of the immigrant petition.

The K-3 visa to green card process involves pros and cons. The main ones are as follows:

PROS

1. Can help reduce the time the U.S. citizen and foreign national spouse are separated from each other (mostly in theory)

If USCIS approves the Form I-129F (K-3 visa) petition before it approves the Form I-130 immigrant petition, the foreign national spouse does not have to wait for the immigrant visa process to be completed. USCIS will forward the approved I-129F to the U. S. Consulate for processing of the K-3 visa. After arriving in the U.S. on a K-3, the foreign national may apply for a green card.

The K-3 visa allows the foreign national to enter the U.S. and live with the U.S. citizen spouse even before USCIS approves the Form I-130 immigrant petition. But whether U.S. Consulates process K-3 visas faster than immigrant visas is uncertain and varies across Consulates.

2. Provides immigration benefits to foreign national spouse’s children in many cases

Unmarried children of the foreign national spouse who are under age 21 can be listed in the Form I-129F (K-3 visa) petition.  No separate I-129F petition is required. Upon approval of the petition, eligible children may receive a K-4 visa that allows them to travel to the U.S. with their parent (K-3 visa holder).

The child is not eligible for an immigrant visa if he was over age 18 on the date his foreign national parent married the U.S. citizen stepparent. The U.S. citizen may file an I-130 immigrant petition for a stepchild only if the marriage occurred before the child’s 18th birthday. But the child is still eligible for a K-4 visa as long as he is not yet 21 at the time of the marriage and visa issuance.

3.  Requires lower filing fees

K-3 and K-4 visa applicants must file the Form DS-160, Online Nonimmigrant Visa Application, and pay a single processing fee (currently $265). Meanwhile, immigrant visa applications based on an approved immigrant petition require a higher processing fee (currently $325), plus a fee for domestic reviews of the Form I-864, Affidavit of Support (currently $120).

There is also no filing fee for the Form I-129F petition for K-3 status based on an immigrant petition filed by the same U.S. citizen.

4. Sets a lower financial threshold

K-3 and K-4 visa applicants must provide evidence showing they will not become a public charge in the United States. This includes financial documents showing they can support themselves or the U.S. citizen can provide support.  They may opt to submit the U.S. citizen spouse’s Form I-134, Affidavit of Support, or the U.S. Consulate may instruct them to do so.

The financial threshold is lower for K-3 and K-4 visa applicants, compared to immigrant visa applicants, who must present a Form I-864, Affidavit of Support, from the U.S. citizen petitioner.

In general, minimum income requirements are set at 100% of the federal poverty guidelines in the Form I-134 for K-visa applicants, but increase to 125% of the federal poverty guidelines in the Form I-864 for immigrant visa applicants. K-3 and K-4 visa holders may live in the U.S. with the U.S. citizen petitioner  while working toward meeting the income income requirement for adjustment of status.

5.  Allows travel overseas

The K-3/K-4 visa is a multiple entry visa that is valid for two years. Unlike the K-1 fiance visa, it may be used to travel overseas and re-enter the U.S.

Foreign nationals with a valid K-3/K-4 visa do not need to travel with Advance Parole even after they file for adjustment of status.

6. Leads to employment authorization

After arriving in the U.S., K-3 and K-4 visa holders may  file a Form I-765, Application for Employment Authorization, with USCIS, and apply for a Social Security Number. The foreign national is authorized to work with a valid work card and unexpired K-3/K-4 status.

The K-3/K-4 visa holder may also apply for a work card based on a pending Form I-485, application to adjust to permanent resident status, even if their non-immigrant status expires.

CONS

1. K-3 visa petition is administratively closed if USCIS approves Form I-130 immigrant petition first (or around the same time)

The K-3 visa is a backup option in the event of long delays in the Form I-130 immigrant visa process.

If USCIS approves the I-130 before the I-129F, it will transfer that approved petition to the U.S. Consulate through the National Visa Center (NVC). In that event, it will ignore the I-129F.

If USCIS approves both the I-130 and I-129F and sends both approved petitions to the U.S. Consulate through the NVC, the I-129F will be administratively closed. In that event, the K-3 visa is no longer an option.  The foreign national spouse and eligible children must then complete the entire immigrant visa application process overseas.

USCIS does not refund the I-129F processing fee in either event.

2.  Provides immigration benefits to foreign national spouse’s children only if certain strict requirements are met

After arriving in the U.S., K-4 visa holders may apply for adjustment of status as long as they are under 21 and  the U.S. citizen petitioner filed a separate Form I-130 immigrant petition for them.

When USCIS approves the I-130 petition for the spouse and forwards it to the NVC, an immigrant visa is immediately available and the K-3/K-4 visa is no longer an option.  If there is no approved I-130 petition for the children, they cannot obtain immigrant visas to accompany the  parent. So even though I-130 petitions for the children are not required to obtain K-4 visas, the U.S. citizen petitioner still needs to file the I-130 petitions so the children can become permanent residents.

K-4 visa holders will be admitted to the U.S. for 2 years or until the day before they turn 21, whichever is earlier. The K-4 status expires when the child turns 21. Unless the I-130 was filed before the child turned 21 and the Child Status Protection Act (CSPA) applies, the K-4 visa holder may not adjust to permanent resident status upon turning 21.

Bringing children to the U.S. on a K-4 visa who were already age 18 at the time of the marriage is also very risky.  To date, only the U.S. Court of Appeals for the Seventh Circuit has ruled, in Akram v. Holder, that a K-4 visa holder might still obtain permanent residence if he was already 18 when his foreign national parent and U.S. citizen stepparent married. The court ruled that immigration laws and regulations do not require K-4s to adjust status only by way of a relationship to the U.S. citizen petitioner, but also “as a result of the marriage” of the parents.

Currently, the USCIS website states that in order for a K-4 to become a permanent resident, the marriage between the U.S. citizen stepparent and the K-3 parent must have occurred before he turned 18.  Based on this policy, USCIS could deny adjustment of status to the K-4 if the stepchild relationship to the U.S. citizen petitioner did not occur before his 18th birthday.  The Seventh Circuit’s decision is binding only in that district, which includes Illinois, Indiana and Wisconsin, and might not be persuasive in other districts.

3. Involves extra steps and additional fees

The U.S. citizen petitioner must first file a Form I-130 immigrant petition for the foreign national spouse before filing the Form I-129F (K-3 visa) petition. Although the petitioner may include his unmarried stepchildren under 21 in the I-129F petition, he must file a separate I-130 petition for the children in order for them to apply for permanent residence. The I-130 and I-129F petitions require separate filing fees (now $420 and $340, respectively).

Upon approval of the Form I-129F petition, the K-3/K-4 visa applicant then has to file a Form DS-160, Online Nonimmigrant Visa Application, which requires another processing fee (currently $265).

After arriving in the U.S., the K-3/K-4 visa holder must then file a Form I-485, application for permanent residence and pay the processing fee (currently $1,070 for applicants age 14 to 78).

Unlike immigrant visa holders who become permanent residents once they enter the U.S., K-3 and K-4 visa holders must submit a whole separate application to adjust status after they arrive in the U.S. They also need to complete an interview with USCIS before they are granted the green cards. Normally, the adjustment of status process takes at least 6 months to be completed.

K-3 and K-4 visa holders can only adjust status based on marriage to the original U.S. citizen petitioner. If the marriage fails before they become permanent residents, they will have to leave the U.S. or  overstay their authorized period, which makes them removable from the U.S. They cannot change to another nonimmigrant status and stay in the U.S.

4. Heightened financial threshold must ultimately be met 

When they apply for permanent residence, K-3 and K-4 visa holders must submit a Form I-864, Affidavit of Support, from the U.S. citizen petitioner.  If the 125% of the federal poverty guideline minimum income requirement is not met, the petitioner must normally get a joint sponsor and/or show evidence of assets that can be converted into cash in one year.

In addition, some U.S. Consulates require K-3/K-4 visa applicants to show they meet this heightened financial threshold because it must ultimately be met when they apply for their green card.

5. Visa must be valid for travel overseas

The K-3/ K-4 visa expires after two years. The visas must be valid to gain re-entry into the U.S. following travel overseas.

The K-3/K-4 nonimmigrant status may be extended by showing strong intent to eventually adjust to permanent residence. The Form I-539, application for an extension should be submitted to USCIS at least 120 days prior to the expiration of the authorized stay.

K-3/K-4 visa holders must maintain their nonimmigrant status in the U.S. to avoid accumulating unlawful presence that could bar them from re-entering the U.S. following a trip overseas. An overstay of 180 days to less than 1 year triggers a 3-year bar upon departure from the U.S. The bar is 10 years if the overstay is 1 year or more. A waiver for the unlawful presence bar is generally available, but is difficult to get.

K-3/K-4 extensions are granted in two-year intervals. If the initial visa has expired, the foreign national must obtain a new visa based on the extension to be re-admitted to the U.S., after traveling abroad.

Otherwise, the K-3/K-4 visa holder must file for adjustment of status and obtain Advance Parole to re-enter the U.S. if they depart the country. Another option is to wait abroad for the I-130 approval and then apply for an immigrant visa to re-enter the U.S.

6. Does not automatically provide employment authorization

K-3/K-4 visa holders need to file their Form I-765 and receive their Employment Authorization Document (EAD)/work card to obtain employment in the U.S. They might also need to present the EAD to obtain a Social Security Number. The Social Security Administration might not accept the K-3 or K-4 visa as proof of authorization to work.

K-3 and K-4 visa holders are not authorized to work until USCIS approves the Form I-765. Most employers will not hire them until they have the EAD as proof of authorization to work. USCIS takes approximately 90 days to process the EAD.

Furthermore, the EAD expires when the K-3/K-4 status expires. The adjustment of status applications must be pending for the foreign national spouse and child to qualify for a new EAD.

Conclusion

The K-3 to green card process has pros and cons. Although it provides many benefits — such as allowing the foreign national to enter the U.S. and live with the U.S. citizen spouse before the immigrant visa process is completed — it carries risks.

Consult  an experienced immigration attorney to help you determine whether the advantages outweigh the drawbacks in your specific case.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Photo by: chiarashine

Comments Off on K-3 Nonimmigrant Visa for Spouse: Pros and Cons

Posted in adjustment of status, green card, immigrant petition, immigrant visa, K-3 visa, The Legal Immigrant - Immigration Blog

Tagged , , , , ,