Category Archives: bona fide marriage

Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?

Posted on December 30, 2015 | Comments Off on Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?

A foreign national who is living overseas and is in a relationship with a U.S. citizen has two main visa options to come to the U.S., get married, and apply for a green card: the B-2 visitor visa and the K-1 fiancé(e) visa. Each route has advantages and disadvantages.

WHAT YOU NEED TO KNOW ABOUT THE B-2 VISITOR VISA

The B-2 visitor visa is for temporary visits only. Entering the U.S. on a B-2 visa and then applying for a marriage-based green card carry benefits and risks.

Benefits of the B-2 to Green Card Route

1. B-2 visa applicant or visa holder does not need a sponsor

An invitation letter or Affidavit of Support from an American sponsor is not required for a B-2 visa. Unlike K-1  fiancé(e) visa applicants, B-2 visa applicants are not required to prove a bona fide relationship with a U.S. citizen significant other.

B-2 visa applicants must instead qualify on the basis of their own residence and ties abroad.  There is no medical exam to complete or immigration-related petition for a U.S. citizen relative to file. They just need to file the online nonimmigrant visa application and pay the application fee.

Legitimate purposes of the B-2 include tourism, vacation (holiday), and visits with friends or relatives. Getting married to a U.S. citizen (or permanent resident) during your visit is not prohibited – as long as you intend to leave the country before your authorized period expires.

2. General desire (and even preconceived intent) to immigrate  – in and of itself – does not prevent B-2 visa holder from adjusting status as the spouse of a U.S. citizen

The B-2 to green card route works best when the foreign national decides to get married to the U.S. citizen only after entering the country. The couple might be undecided about the future of their relationship until they spend more time together during the visit. If the U.S. citizen surprised the B-2 visitor with a marriage proposal after he or she entered the U.S., the visitor could show the original intent was truly a temporary visit.

A general desire to remain in the U.S ., when there is an opportunity to do so legally, is not a problem. Furthermore, a fixed intent to immigrate does not bar immediate relatives (e.g. spouses) of U.S. citizens from adjusting status — unless there are other adverse factors that allow USCIS to deny adjustment as a matter of discretion.

3. Concurrently filing the I-130 and I-485 application (one-step petition/application) is the most streamlined way to get a marriage-based green card

Under normal circumstances, a B-2 visitor who is physically present in the U.S., after lawfully entering the U.S., may file a Form I-485 adjustment of status application at the same time the U.S. citizen files the Form I-130 immigrant petition with U.S. Citizenship & Immigration Services (USCIS). The B-2 to green card route is commonly used by immediate relatives of U.S. citizens.

The one-step filing of the I-485 and I-130 is a much more streamlined process than applying for a K-1 fiancé(e) visa, K-3 nonimmigrant visa, or immigrant visa at the U.S. Consulate overseas, based on marriage to a U.S. citizen. You may also stay with your spouse in the U.S. while your green card application is pending, instead of being separated from each other.

Drawbacks of the B-2 to Green Card Route

1.  B-2 visa applicant or visa holder must show non-immigrant intent

To get the B-2 visa or to enter the U.S. as a visitor, the foreign national must have nonimmigrant intent. You need to prove you have strong ties to your home country that you will not abandon and you will leave the U.S. before your authorized stay expires.

The B-2 visa to green card route works best if you are not yet engaged to the U.S. citizen or did not make specific plans to immigrate to the U.S. after entering the U.S.

Entering the U.S. as a visitor simply to marry a U.S. citizen (or permanent resident) does not violate U.S. immigration law, as long as you leave before your authorized stay expires. While this purpose is legitimate, it still carries risks and may lead to your being denied a visitor visa or entry into the U.S. as a visitor.

If you are applying for a visitor visa, you will be asked on the nonimmigrant visa application, and possibly at the visa interview, whether you have any immediate relatives in the U.S. This includes a fiancé(e). If the consular officer learns you have a U.S. citizen fiancé(e) or believes you will marry the fiancé(e)  during your visit, you will likely be denied a visitor visa. This is because the consular officer might suspect you have no intent of leaving the U.S., but will overstay, get married, and apply for a green card to live permanently in the U.S. with your American spouse.

At the U.S. port of entry, the customs officer may deny your entry for the same reason, even if you present a valid visitor visa. If the U.S. Customs & Border Protection (CBP) finds that you cannot show nonimmigrant intent and therefore lack the proper travel documents, it has two choices. It will either (a) allow you to withdraw your application for admission (and likely revoke your visa) OR, (b) issue an expedited removal order, which bars you from returning to the U.S. for five years, unless you obtain a Form I-212 waiver. Either way, you will be instructed to return home on the next available flight.

In certain situations, the CBP might also find that you willfully misrepresented the purpose of your visit to gain entry into the U.S. as a visitor. It may then deny your entry and issue an expedited removal order on this additional ground. If you cannot convince CBP to refrain from issuing (or to vacate) a charge of willful misrepresentation, you face a lifetime bar to getting a green card or immigrant visa. You will then need to qualify for and obtain an I-601 [INA § 212(i)] waiver of inadmissibility.

I-601 waiver applicants must show  their qualifying relative (U.S. or permanent resident spouse or parent) will suffer “extreme hardship” if they are not admitted to the U.S. as an immigrant. This waiver is challenging to get.

2. Fraud or willful misrepresentation to gain immigration benefits prohibits B-2 visa holder from getting a green card

Lying about the purpose of your visit or about whether you have an American fiancé in the U.S. could be deemed to be fraud or willful misrepresentation to gain immigration benefits.

The U.S. Department of State adopted a 30/60 day rule when a foreign national violates his nonimmigrant status. When a B-2 visa holder marries a U.S. citizen or applies for permanent residence 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 between 30 and 60 days of entry, the DOS does not presume, but may content there was misrepresentation. 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.

[UPDATE: On 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.”]

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. Nonetheless, USCIS may use it as a guide.

If USCIS finds you committed fraud or willful misrepresentation to get the B-2 visa or to enter the U.S. as a visitor, this presents a permanent bar to getting a green card. You may also be placed in removal proceedings before the Immigration Court.

You may challenge the finding by showing you did not engage in immigration fraud or willfully misrepresented material facts when you applied for the visa or when you sought entry into the U.S. If you are unable to overcome the finding, you will need to apply for and receive an I-601 waiver of inadmissibility.

3. Concurrent filing of the I-130 and I-485 (one-step petition/application) involves strict eligibility requirements

The visitor visa is often misused as a way to enter the U.S., get married, and then apply for adjustment of status (green card) to avoid the longer process of applying for a K-1, K-3 or immigrant visa at the U.S. Consulate.

USCIS officers will carefully scrutinize your marriage to confirm it’s bona fide, i.e. entered into with the intent of establishing a life together as spouses, and not to circumvent U.S. immigration laws. You need to present documentary evidence of your shared residence, commingling of financial resources and other factors showing you have a real marriage. You also have to testify consistently and credibly as to the nature of your relationship and courtship.

As the I-485 applicant, you must show you are not inadmissible due to criminal convictions, health-related reasons, immigration violations, or other factors. The USCIS officer may conduct a full review your records (including your visitor visa application) and ask you questions at the interview to verify you are admissible to the U.S. It may investigate your true intent when you applied for the visa or sought entry on the visa.

An immigrant visa must also be available to the I-485 applicant.  If your spouse is a permanent resident, he or she may file an I-130 petition for you, but you may not file for a green card right away due to the backlog in the F2A (spouse of permanent resident) category.

When you are not in the immediate relative (e.g. spouse of U.S. citizen) category, you must be in lawful nonimmigrant status when you file an I-485. You will need to extend or change status to remain lawfully in the U.S. during the wait. Or you might have to wait until your permanent resident spouse becomes a naturalized U.S. citizen. Because adjusting status as the spouse of a permanent resident carries many obstacles, you likely will have to timely depart the U.S. and apply for an immigrant visa at the U.S. Consulate when one becomes available.

WHAT YOU NEED TO KNOW ABOUT THE K-1 FIANCE(E) VISA

The K-1 fiancé(e) visa is for the specific purpose of entering the U.S. to get married to a U.S. citizen and filing for adjustment of status. Entering the U.S. on a K-1 visa and then applying for a marriage-based green card carry benefits and risks.

Benefits of the K-1 to Green Card Route

1. K-1 visa applicant is not required to show nonimmigrant intent

When you apply for a K-1 visa, you are declaring immigrant intent. Getting married to a U.S. citizen and applying for permanent residence are expected. Unlike B-2 visa applicants, K-1 applicants are not required to present evidence of nonimmigrant intent or strong ties to their home country.

2. K-1 visa is the most appropriate visa for marrying a U.S. citizen in the U.S. and applying for a marriage-based green card

As a K-1 entrant, you bear no risk of being found to have committed visa fraud if you marry the U.S. citizen petitioner and apply for a green card, as you indicated you would.  Because you are required to marry the U.S. citizen within 90 days, the Department of State’s 30/60 day rule does not apply at all.

The K-1 to green card route is the most direct path to obtaining a marriage-based green card when you are engaged to a U.S. citizen.

3. Adjustment of status process for the K-1 entrant is generally simpler

A K-1 visa holder who completed the medical exam within the past year to get the visa is not required to do a medical exam for the I-485 application. You just need to submit the vaccination supplement, and not the entire medical report.

The U.S. citizen also does not have to file an I-130 immigrant petition after the marriage occurs. You simply file the I-485 application based on the approved Form I-129F petition, as long as the marriage occurred within 90 days of arrival in the U.S.

USCIS also has discretion to waive adjustment interviews for K-1 and K-2 entrants, i.e. fiancé(e) of U.S. citizen and children of fiancé(e). If the National Benefits Center (NBC) determines that the I-485 application qualifies for an interview waiver, and the Service Center agrees, the K-1 entrant may be granted a green card without an interview at the USCIS Field Office. This is never the case with the B-2 entrant, who must complete a marriage-based green card interview.

Drawbacks of the K-1 to Green Card Route

1. K-1 visa applicant must prove bona fide relationship with U.S. citizen

The K-1 visa option is available only if you are engaged to a U.S. citizen. It is not available if you are not committed to getting married (or you are already married), or if your fiancé(e) is just a permanent resident.

To get the K-1 visa, you must prove you have a real relationship with the U.S. citizen, communicate with each other often, and intend to marry within 90 days of your arrival in the U.S. Documentary evidence includes written correspondences, telephone records, and airline tickets and travel stamps showing the U.S. citizen has visited the K-1 visa applicant.

2. K-1 visa involves strict eligibility requirements

In the wake of the San Bernardino shooting on December 2, in which 14 people were killed after married couple Syed Rizwan Farook and Tashfeen Malik opened fire at a holiday party, Congress began to review the K-1 visa application process. Virginia Rep. Bob Goodlatte Goodlatte, chair of the House Judiciary Committee, opined that USCIS “sloppily approved” Farook’s K-1 visa petition for Malik.  Goodlatte noted that USCIS failed to verify whether the Pakistani national had met her U.S. citizen husband in person before applying for the K-1 visa.

The K-1 visa process requires the couple to meet in person at least once during the two years before the U.S. citizen files the Form I-129F petition for the fiancé(e). Waiver of the in-person meeting requirement is very hard to get.

For USCIS to approve the Form I-129F petition and for the U.S. Consulate to grant the visa, both the U.S. citizen petitioner and foreign national beneficiary must meet other strict eligibility requirements.

For example, a U.S. citizen who has filed two or more K-1 petitions at any time in the past or had any K-1 petition approved within the prior two years may not file a new K-1 petition unless USCIS grants a waiver of these limitations as a matter of discretion. No waiver will be given to a petitioner with a history of violent offenses except in limited circumstances.

3. K-1 to green card route involves a longer, three-step process

You cannot live with your U.S. citizen fiancé(e) in the U.S. until you get the K-1 visa to enter the U.S. The first step of filing the Form I-129F petition and getting it approved usually takes at least 4 to 6 months. The U.S. citizen has to submit a filing fee with the petition.

After USCIS approves the petition, the K-1 applicant must then submit the online nonimmigrant visa application, pay a visa application fee, complete a medical exam, and attend the visa interview.

The U.S. Consulate usually takes several months to schedule a K-1 visa interview. At the visa interview, the U.S. Consulate may require additional documents to confirm the applicant is still in a bona fide relationship with the U.S. citizen. Administrative processing and background checks by the U.S. Consulate can add several more months to the process.

After you enter the U.S. on a K-1 visa, you must marry the U.S. citizen within 90 days of your arrival. Then you must file your I-485 application and pay the filing fee to complete the green card process. If you fail to marry within 90 days, the U.S. citizen spouse will need to file a Form I-130 petition, following marriage outside the 90 days, so you may file a Form I-485 application. If you do not marry at all, you become removable from the U.S. and you cannot adjust through marriage to another U.S. citizen or through any other means.

Although USCIS may waive the adjustment of status interviews for K-1 entrants, it usually does not. Following the San Bernardino shooting, USCIS is expected to waive even fewer interviews. At the interview before USCIS, the couple must prove they have a bona fide marriage and the I-485 applicant must show he or she is admissible to the U.S.

Want to hear about this topic? Check out this video:

WHICH IS BETTER: B-2 or K-1? 

Whether to use the B-2 or K-1 to join your significant other in the U.S. depends on your situation. You need to weigh the advantages and disadvantages of each route when deciding which to take.

Consult an experienced immigration attorney to help you determine whether the B-2 or K-1 is more appropriate for you. Although both can lead to a marriage-based green card, each carries benefits and drawbacks.

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.

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Photo by: Dennis Skley

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Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?

Posted on December 7, 2015 | Comments Off on Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?

In this video, immigration attorney Dyan Williams describes two types of nonimmigrant visas: B-2 visitor visa and K-1 fiancé(e) visa. She summarizes what you need to know about each visa when using either to come to the U.S., get married to a U.S. citizen or permanent resident, and apply for a green card.

Read about Coming to America to Get Married and Get a Green Card: B-2 or K-1 visa?  here.

For more information, read these articles:

Contact Dyan for specific advice and guidance on the B-2 visitor visa or K-1 fiance(e) visa to green card process.

This video provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in adjustment of status, bona fide marriage, green card, immigrant petition, immigrant visa, K-1 visa, marriage fraud, The Legal Immigrant - Immigration Blog, Videos, waiver

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Form I-751: Removing Conditions on Permanent Residence When Marriage is on the Rocks

Posted on August 29, 2015 | Comments Off on Form I-751: Removing Conditions on Permanent Residence When Marriage is on the Rocks

Your permanent residence is “conditional” if it is based on a marriage that was less than two years old on the date you were granted this status.  The conditional residence – which begins on the date you lawfully enter the U.S. on an immigrant visa or the date you adjust to permanent residence – is valid for two years.

Failing to file a timely joint Form I-751 petition to remove the conditions results in the automatic termination of your status and subjects you to removal from the U.S.

In the best-case scenario, you and your U.S. citizen or lawful permanent resident (LPR) spouse would file a joint Form I-751 petition to remove the conditions during the 90 days before your two-year green card expires.

Then USCIS would approve the petition, remove the conditions, and issue the 10-year green card, based on documentary evidence showing the marriage is bona fide (i.e. entered into with the purpose of establishing a married life, and not for the purpose of obtaining immigration benefits). USCIS may approve the petition without interviewing you, if the documentary evidence is very strong.

But when the marriage is on the rocks, it becomes much harder to file a timely joint I-751 petition and to get the conditions on your residence removed.

Joint Filing When Parties are Separated or Initiated Divorce or Annulment

If the parties are separated but are on relatively good terms, they may submit a joint I-751 petition to the USCIS Service Center. The joint petition must be filed during the 90 days preceding the expiration of the two-year conditional residence. Otherwise, the conditional resident must establish “good cause and extenuating circumstances” for the late filing. Examples of good cause include hospitalization, long term illness, death of a family member, legal or financial problems, having to care for someone, bereavement, serious family emergency, and work commitment, or a family member on active duty with the U.S. military.

The couple must also appear for an in-person interview at a USCIS Field Office, if one is scheduled. In addition, they must meet a four-part test as follows: 1) the marriage was legal where it took place; 2) the marriage has not been terminated; 3) the marriage was not entered into for the purpose of procuring permanent resident status; and 4) no fee (other than to an attorney for filing assistance) was paid for the filing of the Form I-130 or Form I-129F petition.

If USCIS finds that the joint petitioners are legally separated and/or have initiated divorce or annulment proceedings, it will issue a Request for Evidence. The RFE will instruct the conditional resident to submit a copy of the divorce decree or annulment within 87 days, along with a written request to treat the joint petition as a waiver request petition.

If the conditional resident submits the divorce decree or annulment, USCIS will amend the joint petition to indicate it is a waiver request petition based on termination of marriage. USCIS will determine whether there is sufficient evidence to approve the petition on the merits or whether to transfer the case to a Field Office for an in-person interview.

If the conditional resident does not respond to the RFE, or the response does not sufficiently show the marriage has been terminated, USCIS will assess evidence of the bona fides of the marriage. USCIS will decide whether to approve the petition, deny it, or transfer it to a Field Office for an in-person interview.

USCIS may not deny a  joint petition solely because the parties are separated and/or have initiated divorce or annulment proceedings. But legal separation or initiation of divorce or annulment proceedings could suggest that the conditional resident entered into marriage solely for immigration benefits.

As long as the parties prove they married in good faith and the marriage has not been terminated or annulled, USCIS will approve the joint petition (even when the marriage is no longer viable).

Waiver of the Joint Filing Requirement

Conditional residence was introduced in 1986, when Congress passed the Immigration Marriage Fraud Amendment to discourage individuals from entering into sham marriages to circumvent U.S. immigration law. In the 1990’s, Congress passed laws that allow conditional residents, in certain situations, to individually file the I-751 petition so they do not have to stay in  bad or abusive marriages to keep immigrant status.

If the parties file for a divorce or annulment, or the U.S. citizen or LPR spouse is not willing to sign a joint I-751 petition, the conditional resident must then qualify for a waiver of the joint filing requirement.

To receive a waiver of joint filing,  conditional residents must show at least one of the following:

1. The U.S. citizen spouse subsequently died.

2. They entered the qualifying marriage in good faith, but the marriage was terminated (other than by death), and they are not at fault in failing to file a joint petition.

3. They entered the qualifying marriage in good faith, but during the marriage, they or their conditional resident child was battered or subjected to extreme cruelty committed by the U.S. citizen or permanent resident spouse or parent, and they are not at fault in failing to file a joint petition.

4. Extreme hardship would result if they were removed from the U.S.

Waiver petitions can be filed at any time prior to a final removal order, and do not require proof of “good cause and extenuating circumstances” for a late filing.

Waiver Based on Divorce (Good Faith/Divorce Waiver)

You may file your I-751 by yourself and request a waiver of the joint filing requirement if you are divorced from your U.S. citizen or LPR spouse. When there’s a divorce, an in-person interview at the USCIS Field Office is likely.

Current USCIS policy states that if you file a waiver request petition because you are separated from your spouse or because you are in divorce or annulment proceedings, USCIS will issue a Request for Evidence, giving you 87 days to submit a copy of the divorce decree or annulment.

If you submit the divorce decree or annulment, with a request for a waiver of the joint filing requirement based on termination of marriage, USCIS will continue processing your petition and adjudicate it on the merits.  If you do not submit the divorce decree or annulment, USCIS will deny the waiver request petition and issue a Notice of Termination of Conditional Residence.  USCIS may also serve you with a Notice to Appear (NTA) in removal proceedings before the Immigration Court.

After your divorce becomes final, you may refile your waiver request petition with USCIS if you are not in removal proceedings. Or you may apply for the waiver before the Immigration Court if you are placed in removal proceedings.

A divorce raises suspicion that the marriage was not entered in good faith. To get the waiver request petition approved, you must submit bona fide marriage documents such as birth certificates of your children;  joint mortgages or leases; records of shared bank accounts and credit cards; joint tax returns; photographs of the two of you together and with friends and relatives; correspondences you shared; and affidavits from marriage counselors, therapists, relatives and friends who know about your relationship.

Waiver Based on Battery or Extreme Cruelty by Spouse (Battered Spouse Waiver)

You may individually file the I-751 petition when you are in an abusive marriage that subjects you or your conditional resident child to battery or extreme cruelty perpetuated by the U.S. citizen or LPR spouse. This waiver is available regardless of whether you are still married to or still living with the spouse.

Battery or extreme cruelty is defined as “any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury.” Acts of violence include “psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution.”

Battery involves physical violence committed against you by your spouse. This can include slapping, shoving, punching or any other infliction of bodily injury.

Extreme cruelty includes nonviolent abuse inflicted on you by your spouse to control or punish you. This includes refusing to jointly file the I-751 unless you give in to unreasonable demands; threatening to report you to authorities and have you deported from the U.S.; threatening to physically harm you;  forbidding you from contacting friends and family; withholding food, transportation and other basic necessities; and searching through or destroying your personal property, including important documents.

To establish battery, you should present “expert testimony in the form of reports and affidavits from police, judges, medical personnel, school officials and social service agency personnel.” You may also submit evidence that you sought an order of protection against the abuser or present photographs of injuries you suffered.

To support claims of extreme cruelty, you should provide objective evidence from professionals recognized as experts in the field; namely, licensed clinical social workers, psychologists, and psychiatrists.

A detailed affidavit describing the abuse you suffered is also helpful.

Waiver Based on Extreme Hardship (Extreme Hardship Waiver)

You may self-petition to remove the conditions on your residence if termination of your permanent residency and removal from the United States would result in extreme hardship. The immigration statute is silent about who must suffer the extreme  hardship, but USCIS normally considers the hardships to the conditional resident and to the children of the marriage.

USCIS considers only factors that arose after you became a conditional permanent resident.  One example is when the political or economic conditions in your home country have deteriorated, and you have publicly criticized its government, since you became a conditional resident.

The term “extreme hardship” is not defined by immigration law. Rather, USCIS generally applies case law regarding applications for suspension of deportation or waivers of inadmissibility. USCIS will consider factors such as your age,  health condition, ability to obtain employment in the home country, length of residence in the U.S. and family ties in the U.S. Other factors include the financial difficulties and emotional hardships you would suffer if you were removed from the U.S., as well as the current political and economic conditions in your home country.

Although the statute itself does not require you to prove a good faith marriage, you must prove extreme hardship if you are removed from the U.S. Such hardship is significantly greater than the hardship that one would ordinarily experience upon being removed from the U.S.

Choosing the Appropriate Form I-751 Waiver

The most recent version of the Form I-751, dated 04/11/13, does not indicate that the waivers are mutually exclusive or that the conditional resident must select only one of the possible grounds for a waiver. Some USCIS officers or immigration judges, however, might instruct you to choose one waiver.

If the U.S. citizen or LPR spouse dies during the two-year conditional period, a separate waiver is available on that basis.  A copy of the death certificate and proof of the bona fide nature of the marriage must be submitted.

Consult an Immigration Attorney

An experienced immigration attorney can help you file a well-documented Form I-751 petition, as well as choose an appropriate waiver, if necessary. The attorney can also prepare you for the interview and attend it with you, if USCIS schedules one.  A denial of petition to remove conditions or a termination of conditional residence subjects you to removal from the U.S., so seeking accurate legal advice is crucial.

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.

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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.

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From K-1 Fiancé(e) Visa to Green Card

Posted on April 30, 2015 | Comments Off on From K-1 Fiancé(e) Visa to Green Card

engaged 5-1-2015When a foreign national is engaged to marry a U.S. citizen, he or she may travel to the U.S. on a K-1 fiancé(e) visa to get married and eventually become a permanent resident (green card holder).

The K-1 visa is not just for modern-day “mail-order brides” who met their American fiancé(e) through international matchmaking services or international marriage brokers.

The K-1 is also for couples who met each other through mutual friends and family members, chance encounters, or online dating sites that do not charge fees for international matchmaking services. K-1 cases can involve couples who were born in the same countries, attended the same college, or grew up in the same neighborhood. The K-1 visa is available to both opposite-sex couples and same-sex couples.

The immigration process starts with the filing of the K-1 visa petition, continues with the K-1 visa application, and ends with the filing of the Form I-485 application for adjustment to lawful permanent residence after the couple marries.

The general process is as follows: 

STEP #1 – FILING THE K-1 VISA PETITION

U.S. Citizen Files the Form I-129F Petition

To start the process, the U.S. citizen must file a Form I-129F petition, including filing fee and supporting documents, with the USCIS office that processes these case.

If the fiancé(e) has accompanying children younger than 21, the U.S. citizen must include their names on the Form I-129F to allow them to apply for a derivative K-2 visa.

Basic Requirements

The U.S. citizen must present evidence showing the eligibility requirements are met, such as a birth certificate showing U.S. citizenship, a written statement of intent to marry within 90 days of the fiancé(e)’s arrival in the U.S., and photographs of the couple together and airline tickets showing they met during the two years prior to filing the petition.

(USCIS may waive the two-year meeting requirement if it receives evidence showing this would result in extreme hardship to the U.S. citizen or would violate traditional marriage customs of either party. But this waiver is very difficult to get.)

Additional Requirements

The International Marriage Broker Regulation Act (IMBRA) imposes additional requirements and limitations. The Form I-129F instructions provide detailed information about IMBRA.

An international marriage broker (IMB) is a business that charges fees for dating, matrimonial or matchmaking services or social referrals for U.S. citizens (or permanent residents) and their foreign national clients. An example is Foreign Affair, the largest online international matchmaking service that features thousands of purportedly single women on its website, LoveMe.com.

Petitioners who met their fiancé(e) through an IMB must state this on the Form I-129F. They must also provide a signed, written consent form that the IMB obtained from the foreign national authorizing the release of personal contact information to them.

A U.S. citizen who previously filed K-1 petitions for two or more beneficiaries (at any time) or who received K-1 approvals within the two years prior to filing the current K-1 must apply for a waiver. The petitioner may submit with the Form I-129F an affidavit explaining the reasons for requesting the waiver.

The Adam Walsh Act Child Protection and Safety Act also prevents a U.S. citizen who has been convicted of a “specified offense against a minor” from filing a Form I-129F petition, unless he proves he would pose no threat to the foreign citizen fiancé(e) or accompanying children.

If applicable, USCIS must provide to the U.S. Consulate the petitioner’s criminal records and information related to certain crimes, such as domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse and stalking.

USCIS conducts a background check for national security, criminal records, and other information on both the petitioner and beneficiary, which can lead to significant delays in the Form I-129F processing.

USCIS Processes Petition and, If Approved, Forwards it to NVC

Upon receiving the Form I-129 petition, filing fee, and supporting documents, USCIS will issue a receipt notice to the petitioner.

During the processing, USCIS may issue a request for additional evidence and will normally give the petitioner 87 days to respond. If the petitioner does not respond, USCIS may issue a decision (likely a denial) based on the evidence in the record.

If USCIS denies the petition, the decision can be appealed to the Administrative Appeals within 33 days or the U.S. citizen may file a new petition with additional evidence.

If USCIS approves the petition, it then forwards it with an approval notification to the National Visa Center (NVC). An approved Form I-129F petition is valid for four months from the date USCIS issues the decision. The petition must continue to be valid at the time the K-1 visa is issued.

If the K-1 visa is not issued before the validity date expires, the U.S. Consulate may revalidate the petition in four-month increments as long as it is convinced the parties are still legally free to marry and intend to marry within 90 days of the foreign national’s arrival in the United States.

NVC Processes the Case and Forwards it to the U.S. Consulate

After processing the case, the NVC will forward it to the U.S. Consulate that has jurisdiction over where the fiancé(e) lives. The NVC will send a letter to the petitioner, indicating the case number and stating that it forwarded the petition to the U.S. Consulate.

STEP #2 – FILING THE K-1 VISA APPLICATION

After receiving the approved petition, the U.S. Consulate will send instructions to the foreign national to apply for a K-1 visa.

Foreign National Applies for K-1 Visa

The applicant must bring the following forms and documents to the visa interview:

Completed Form DS-160, Online Nonimmigrant Visa Application. The foreign national applying for the K-1 and any eligible children applying for K-2 visas must: (1) complete Form DS-160 online and (2) print the DS-160 confirmation page to bring to the interview.

An unexpired passport that is valid at least six months beyond the intended period of stay in the U.S. (unless there are country-specific exemptions).

Divorce or death certificate(s) of any previous spouse(s) for both the U.S. citizen petitioner and visa applicant.

Police certificates from  present country of residence and all countries where the applicant has lived for six months or more since age 16. (Police certificates are also required for accompanying children age 16 or older.)

Medical examination, preferably including vaccination. Prior to the interview, applicants must schedule and complete a medical examination by an authorized panel physician. The U.S. Consulate will provide instructions.

Vaccinations are not required for K visas, but will be required when adjusting to permanent resident status following marriage to the U.S. citizen petitioner. Therefore, applicants are encouraged to complete the vaccinations at the time of the medical examination.

Proof of financial support. During the visa interview, applicants must prove they have sufficient financial support and will not become a public charge in the United States (i.e receive government benefits or welfare).

The U.S. Consulate may request a Form I-134, Affidavit of Support, plus proof that the U.S. citizen petitioner’s income is 100% of the federal poverty guideline.

Consular officers are also aware the U.S. citizen must submit a Form I-864, Affidavit of Support, when the foreign national applies for a green card following the marriage. So they may require the applicant to show the U.S. citizen petitioner’s income is 125% of the federal poverty guideline (unless the petitioner is on active duty in the U.S. Armed Forces.)

Additional items include two passport photographs of the applicant, evidence that the relationship with the U.S. citizen petitioner is genuine, and payment of the non-refundable visa application fee.

Foreign National Attends Visa Interview

At the visa interview, the applicant will be asked questions about the relationship, including how the couple met,  how often they communicate with each other, and when they plan to marry.

The U.S. Consulate may also require the applicant to present additional documents showing the couple continues to share a bona fide relationship, especially if several months have passed since USCIS approved the Form I-129F petition.

U.S. Consulate Issues Decision

Discrepancies between the information in the K-1 petition and the applicant’s circumstances might cause the consular officer to question whether the relationship is bona fide or might cause the U.S. citizen petitioner to choose not to proceed with the marriage. These include the visa applicant having one or more children not named in the petition, a prior undisclosed marriage (even if it has been annulled or ended by divorce or death), or a current pregnancy.

When there are discrepancies, consular officers may use their discretion in deciding whether to return the K-1 petition to USCIS. They should, however, first contact the U.S. citizen to verify whether he or she was aware of the particular circumstance(s) and whether he or she still intends to proceed with the marriage. If they receive a satisfactory answer from the U.S. citizen, consular officers do not have to return the petition to USCIS.

Consular officers will return the K-1 petition to USCIS for reconsideration if they doubt the relationship is genuine or if the U.S. citizen indicates that he or she no longer intends to go forward with the marriage.

The Consulate also conducts background checks on the K-1 visa applicant, including fingerprints and other checks similar to those conducted by USCIS, as well as checks of its systems and other interagency databases.

The Consulate will not issue the K-1 visa to a foreign national who is inadmissible to the U.S., unless he or she qualifies for a waiver.

Inadmissibility grounds include having a communicable disease, a dangerous physical/mental disorder, a drug addiction, or a criminal record (including crime involving moral turpitude, drug trafficking, or prostitution). They also include previous violations of U.S. immigration laws (e.g. 3/10 year bar due to accrual of unlawful presence in the U.S. that lasted more than 180 days) and failure to show he or she will not become a public charge.

If the Consulate approves the case, the foreign national and accompanying children will receive a K-1 visa and K-2 visas, respectively. The visa is valid for six months and is good for one entry into the U.S. The consular officer will give the visa holder a sealed envelope containing a copy of the petition and other paperwork to present at the U.S. port of entry.

STEP #3 – FILING THE APPLICATION FOR ADJUSTMENT TO LAWFUL PERMANENT RESIDENT STATUS

Marriage Within 90 Days

The couple must marry within 90 days after the K-1 visa holder enters the U.S. The K-1 status cannot be extended. If the marriage does not occur within 90 days, the foreign national becomes removable from the United States. He or she may still marry the U.S. citizen petitioner after 90 days, but an I-130 immigrant petition must be filed to continue the green card process.

If the foreign national leaves the U.S. before marriage, he or she will have to apply for a new K-1 visa.

Foreign National Submits Form I-485 Application to USCIS After Marriage

Once married, the foreign national becomes an immediate relative (i.e. spouse of a U.S. citizen). He or she may then submit the Form I-485 application to adjust to permanent residence, with filing fee and supporting documents, to USCIS.

While the adjustment application is pending, the person may also file for advance parole to travel outside the U.S. and re-enter the U.S. before the green card is issued. He or she may also apply for employment authorization to lawfully work in the U.S. while the green card application is pending.

(NOTE: A K-1 visa holder may also apply for a work permit. But it will be valid for only 90 days following arrival in the U.S., and USCIS takes several weeks or months to process it. So, from a practical standpoint, it’s better to just wait to file for the work permit based on a pending Form I-485 application.)

After receiving the Form I-485 application, USCIS will issue a receipt notice and then a biometrics appointment notice instructing the foreign national to get his photograph and fingerprints taken at a USCIS Application Support Center. In some cases, USCIS may issue a Request for Evidence to continue processing the application.

Form I-485 Interview with USCIS

It normally takes at least 3 to 6 months for USCIS to schedule a Form I-485 interview. But in some cases, a year or more could pass before the interview occurs.

The green card applicant will receive the interview notice, with instructions on the documents to bring.  He or she will also be instructed to bring the U.S. citizen spouse so the USCIS officer may interview them both.

The officer will ask questions to determine whether the applicant’s marriage to the U.S. citizen is bona fide (i.e. entered into with the intent of establishing a life together as spouses, and not solely or primarily for immigration benefits). The officer will also go through the questions on the Form I-485 to verify whether the applicant is admissible to the United States.

USCIS may waive I-485 interviews for K-1 visa entrants. But the documentation must be strong enough to get an approval without an interview.

USCIS Issues Decision

USCIS will approve the Form I-485 application and issue the green card if it determines the applicant’s marriage to the U.S. citizen is bona fide and the applicant is admissible to the United States (or qualifies for a waiver of inadmissibility).

If the marriage is less than two years old at the time USCIS approves the Form I-485, foreign nationals will be granted “conditional” permanent residence. This means they will have to file a Form I-751 petition to remove the conditions on the permanent residence before the green card expires, but no earlier than 90 days before the expiration. If the couple divorces, the green card holder may file for a waiver of the joint filing requirement to get the conditions removed.

If USCIS denies the Form I-485 application, it may issue a Notice to Appear in removal proceedings. The applicant may renew the Form I-485 before an immigration judge in removal proceedings. Otherwise, the applicant may re-file the Form I-485 with USCIS or ask USCIS to reopen and/or reconsider its decision. There is no appeal process.

* * *

The K-1 was created to allow the foreign national fiancé(e) to enter the U.S. more quickly and be spared a long separation from the intended U.S. citizen spouse. But the process still requires a lot of documentation and can involve complications and setbacks. Furthermore, the K-1 holder is subject to removal from the United States if the I-485 process is not completed successfully or is not initiated at all.

An experienced immigration attorney can help you with filing the K-1 visa petition, applying for the K-1 visa application, and filing for permanent residence. Although information is readily available online, a skilled attorney knows how to deal with unique situations, prevent unnecessary delays, and maximize the chances of approval in the K-1 to green card process.

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.

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