Category Archives: immigrant petition

I-212 Waiver + Diversity Immigrant Visa = A True Success Story

Posted on October 25, 2015 | Comments Off on I-212 Waiver + Diversity Immigrant Visa = A True Success Story

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On October 20, 2015, Dyan Williams Law PLLC celebrated its first-year anniversary and I celebrated the end of my first year as a solo practitioner. It’s been a wonderful journey. Although the prior 10+ years I spent at other law firms were rewarding, my 1 year at Dyan Williams Law proved to be much more. I  enjoy every single day of operating my own law firm, doing phenomenal work, and serving an excellent group of clients.

Our first year came to a close with most of our immigration cases approved and none denied. Others are in the works or are pending with the immigration agencies. One true success story involved USCIS’ expedited approval of a Form I-212 waiver request for a very deserving client.

Our client – an Immigrant Visa applicant – was unable to obtain his 2015 Diversity Visa without an I-212 waiver granting him permission to re-enter the U.S. following an expedited removal order. During the month of May, the U.S. Consulate granted the diversity visas to his wife (principal DV applicant) and young child (derivative DV applicant), but instructed him to first obtain an I-212 waiver.  He was unaware that he needed the waiver until the U.S. Consulate informed him.

Two years ago, he presented his visitor’s visa at an international airport to gain entry into the U.S. Instead of admitting him, the U.S. Customs & Border Protection placed him in secondary inspection and questioned him about his prior visits. After he admitted to previously working in the U.S. without proper authorization, he was summarily removed from the U.S. and sent back immediately to his home country.  His visitor visa was revoked and he was barred from re-entering the U.S. for five years, up until 2018.

The cut-off date to receive the 2015 Diversity Visa was September 30, the end of the DV Lottery fiscal year. Because he had only four months to obtain the visa when he contacted me in May about his I-212 application, I had to prepare a strong waiver request that would be readily and expeditiously approved by USCIS. The normal processing time for I-212 applications is 6 to 12 months.

I first had to review the Notice of Expedited Removal Order to determine why exactly he needed the waiver. Fortunately, he was not charged with fraud or willful misrepresentation to gain entry into the U.S. Had this been the case, he would have needed a separate I-601 waiver, for which he was not eligible.

In particular, for I-601 purposes, he did not have a qualifying relative (U.S. citizen spouse or parent who would suffer extreme hardship if he were not admitted to the U.S.) Although his wife received her Diversity Visa, she first had to land in the U.S. and be admitted to the country to become a permanent resident. And he had to accompany her to the United States on his Diversity Visa at the same time to become a permanent resident.

I next had to learn about all the relevant details, including the unusual hardships he and his family would suffer if he were not admitted to the U.S., his work experience and professional qualifications, and the harsh conditions in his home country. I further counseled him on the documentary evidence he should provide to support his waiver request. I also researched and gathered additional reports and articles on the terrible conditions in his home country.

It took him about one month to collect and provide all the required information and documents needed for the I-212 waiver. On June 24, I filed the I-212 application with the USCIS Field Office in Boston, MA, which had jurisdiction to decide the case. That office, however, (mistakenly) transferred the application to the Nebraska Service Center (NSC), where the I-212 sat for about two months for “administrative processing.” This unnecessary transfer added to the processing time. On August 20, NSC sent the case back to the Boston Field Office for a decision.

To support the I-212 waiver application, I presented a thorough legal brief describing how the positive factors outweighed the negative factors, and why my client deserved the waiver as a matter of discretion, under the law. I also provided compelling reasons for expedited processing (i.e. adjudication of the I-212 waiver application within 3 months). I argued that an emergency situation, humanitarian reasons, and subsequently, USCIS error and/or compelling interest of USCIS, existed to satisfy the criteria for an expedited decision.

After I submitted multiple follow-up letters to USCIS (including the Boston Field Office and NSC) describing the urgency of the situation, the USCIS adjudications officer in Boston made a personal telephone call to me on September 23. He informed me that I had presented a compelling case and he would approve the I-212 (just 7 days before the September 30th deadline to receive the visa). He faxed the approval notice to the U.S. Consulate and emailed me a copy.

I then advised my client to immediately contact the U.S. Consulate for a diversity visa issuance prior to September 30. Thankfully, the U.S. Consulate granted the visa on September 25.

The timely I-212 approval and visa grant allowed him to accompany his wife and child to the United States. Their admission to the U.S. on diversity immigrant visas makes them lawful permanent residents. If USCIS had denied the I-212, the applicant would have been stuck in his war-torn country (at least for a few years, until he could obtain an immigrant visa based on a petition by his permanent resident wife).

This client and I communicated only by email. He decided to hire me after his friend in the U.S. completed a Skype consultation with me and became convinced that I was the best attorney for his case. Despite our never meeting in person, we formed a trust-based relationship and collaborative partnership that contributed to a successful and timely outcome.

So far, the expedited approval of the I-212 waiver application in this Diversity Visa case is one of my most memorable, true success stories, since I established Dyan Williams Law PLLC.  I look forward to doing more great work and helping more clients study, work and live lawfully in the United States, reunite with their American families, and become U.S. citizens.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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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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Posted in adjustment of status, expedited removal, good moral character, green card, immigrant petition, immigrant visa, success story, The Legal Immigrant - Immigration Blog, waiver

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What should you do to get your I-212 Waiver?

Posted on October 24, 2015 | Comments Off on What should you do to get your I-212 Waiver?

Sections 212(a)(9)(A)(i) and (ii) of the Immigration and National Act state that foreign nationals who have been ordered removed may not be readmitted to the U.S. until they have stayed abroad for 5, 10 or 20 years. Having an aggravated felony conviction further subjects you to a permanent bar.

Sections 212(a)(9)(C)(i) and (ii) of the Immigration and National Act state that foreign nationals who illegally enter or attempt to illegally enter the U.S. after certain prior immigration violations are permanently barred.

When any of these inadmissibility bars apply to you, you need an I-212 waiver or Consent to Reapply (CTR) to be readmitted to the U.S. or to obtain a visa as an immigrant or nonimmigrant.

What Must I Submit When Requesting an I-212 Waiver?

A completed and signed Form I-212,  Application for Permission to Reapply for Admission into the United States after Deportation or Removal, must be submitted – except in few situations, such as when filing for a nonimmigrant visa at certain U.S. consulates.

Although the I-212 waiver and Consent to Reapply are two terms that are used interchangeably, a request for a CTR does not always involve the filing of an official Form I-212 and application fee.

The Form I-212 instructions include a list of supporting documents you should submit with your waiver request.

There is no specific statutory standards to be met. Applications are considered on a case-by-case basis, and ALL relevant factors are considered. The approval of the I-212 application is at the agency’s discretion, which means the adjudicator will weigh the favorable and unfavorable factors in making a decision.

To obtain the I-212 waiver, you must establish the favorable factors outweigh the unfavorable factors.

Favorable factors include:

  • Close family ties in the U.S.
  • Unusual hardship to your U.S. citizen or lawful permanent resident relatives, yourself, or your employer in the U.S.
  • Your family responsibilities or intent to hold family responsibilities.
  • Length of lawful presence in the U.S. and the status you held during that presence.
  • Your respect for law and order.
  • Your good moral character, such as lack of criminal history.
  • Reformation and rehabilitation that make it unlikely the problem will occur again (e.g. repeated criminal activity that resulted in your deportation).
  • Eligibility for a waiver of other inadmissibility grounds.
  • The need for your services in the U.S.
  • Absence of significant undesirable or negative factors.
  • Likelihood that you will become a permanent resident in the near future.
  • Considerable passage of time since you were deported.

Unfavorable factors include:

  • Lack of close family ties or hardships.
  • Serious or repeated violations of immigration laws or willful disregard of other laws.
  • Bad moral character, including criminal history.
  • Likelihood that you will seek U.S. welfare or become a public charge.
  • Poor physical or mental condition (unless there is a need for treatment in the U.S., which would be a favorable factor).
  • Unauthorized employment in the U.S.
  • Your admission would be contrary to the welfare, safety, or security of the U.S.
  • Recent deportation.

Personal declarations from you or legal arguments from your lawyer are not enough. You must provide objective and credible evidence, including:

  • Affidavits from third parties attesting to unusual hardships, your good moral character, and other positive factors.
  • Evidence of family ties in the U.S., such as birth certificates and marriage certificates.
  • Medical reports, psychological evaluations, and other records showing unusual hardships to you, your relatives, or others if you are not admitted to the U.S.
  • Evidence of the financial, emotional and psychological impact of family separation.
  • Police clearance reports showing you lack a criminal history.
  • Evidence of rehabilitation and reformation, if you have prior criminal convictions.
  • Employment records and other evidence of your professional qualifications and work experience.
  • Articles and reports on the conditions of the country where you and your family would live if you were not admitted to the U.S.

Generally, your I-212 is more likely to be granted if you are the beneficiary of an approved family or employment-based petition or you are otherwise eligible for a visa,  you have only one removal order, you lack a criminal record, you did not commit serious and repeated immigration violations, and you demonstrate unusual hardships to your family or employer in the U.S. if you are not admitted.

Does Hiring an Immigration Attorney Make a Difference? 

You may file the Form I-212 application on your own. But hiring an experienced, skilled and diligent lawyer provides several advantages, such as:

1.  Avoiding unnecessary expenses and delays. The  immigration lawyer can help you determine whether you need an I-212 waiver in the first place. You might not actually need an I-212 waiver for various reasons, including:

  • The 5, 10 or 20 year bar under INA section 212(a)(9)(A) has expired.
  • You were allowed to withdraw your application for admission at the U.S. port of entry or border and you departed the U.S. within the time specified.
  • You were stopped and refused admission at the U.S. port of entry or border, but no expedited removal order was issued.
  • You were refused admission as an applicant under the Visa Waiver Program.
  • You were paroled into the United States after you accrued more than one year of unlawful presence in the U.S. and left, such that you are not inadmissible under INA section 212(a)(9)(C). [NOTE: You might, however, still be inadmissible under the 3-year/10-year unlawful presence bar and require a separate Form I-601 waiver.]
  • You were paroled into the United States after you were ordered removed from the U.S, such that you are not inadmissible under INA section 212(a)(9)(C). [NOTE: You might, however, still be inadmissible under the 5, 10, or 20-year bar under INA section 212(a)(9)(A) and require a Form I-212 for that bar.]
  • You received voluntary departure from an immigration court and you departed the U.S. during the voluntary departure period.
  • You are applying for I-485 adjustment of status as a U nonimmigrant.

The immigration lawyer also helps ensure that your I-212 waiver application is filled out completely and filed properly with the right immigration agency.  Without a lawyer’s guidance, it can be easy to overlook critical questions and difficult to determine  where you should submit your I-212 application. The lawyer can prevent unnecessary delays, including rejection notices.

2. Determining whether you are inadmissible on other grounds and whether these grounds can be waived or not.  The immigration lawyer will review the immigration court records (including Notice to Appear in Removal Proceedings and court order) or Customs & Border Protection records (including Notice of Expedited Removal) to determine the reasons for your removal and the duration of the bar.

A lawyer can verify  whether you need an I-601 waiver (for immigrant visa) or an I-192 waiver/INA section 212(d)(3)(A)(ii) waiver (for nonimmigrant visa) as well. While the I-212 covers grounds of inadmissibility under INA sections 212(a)(9)(A) or (C), the I-601 waiver or 212(d)(3)(A) waiver is necessary for other grounds, such as immigration fraud and misrepresentation, the 3-year/10-year bar due to previous unlawful presence in the U.S., health conditions, and criminal convictions.

While eligibility requirements for the 212(d)(3)(A) are relatively flexible, they are strict for the I-601 waiver.  Unlike 212(d)(3)(A) waiver applicants, I-601 waiver applicants must have a qualifying relative (e.g. U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if they are not admitted to the U.S.

In addition, a lawyer can advise you on whether you are inadmissible for reasons that cannot be waived at all. These include a determination that you made a false claims to U.S. citizenship, a ruling that you filed a frivolous asylum application, a drug conviction after age 18 (except if it was for simple possession of less than 30 grams of marijuana for personal use), and a finding that you entered into a sham marriage to a U.S. citizen for immigration purposes.

3. Increasing the likelihood that your waiver application will be decided favorably (and in some cases, expeditiously). 

An attentive lawyer will strive to understand the full details of your case, including your family responsibilities; the hardships you, your family and/or employer would suffer if you are not admitted to the U.S.; your professional qualifications; and the conditions in your home country.

A skilled and experienced lawyer will advise you on the documentary evidence and written testimonials you must submit to support your waiver request. He or she will also present a legal brief describing how the positive factors outweigh the negative factors and why you deserve the waiver as a matter of discretion, under the law.

A diligent lawyer will also do any necessary follow-ups to obtain an approval, and request expedited processing when appropriate.

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To present the strongest I-212 waiver request you need to do more than just submit the form and documents listed in the instructions.  True success in getting an I-212 waiver grant is more likely when you have experienced counsel.

Consult an immigration attorney at least once and, preferably, hire a reputable one to help you prepare an approvable I-212 application.

For more information on the inadmissibility grounds that require an I-212 waiver, the limitations of the waiver, and when and where you may file for it, read our related article, When do you need an I-212 Waiver (and how do you get it)?

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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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Posted in expedited removal, green card, immigrant petition, immigrant visa, immigration consequences of criminal convictions, K-1 visa, K-3 visa, nonimmigrant visa, The Legal Immigrant - Immigration Blog, 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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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.

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