A U.S. Consulate issued the K-1 fiancée visa to our client, after it denied her requests for an F-1 student visa renewal. The switch allowed the applicant to avoid the INA 214(b) requirement to establish nonimmigrant intent. The setbacks were overcome with careful documentation to support the Form I-129F, Petition for Alien Fiancé(e), and thorough preparation for the K-1 visa process.
The applicant first consulted me after the U.S. Consulate used INA 214(b) to twice deny her requests for the student visa renewal. She had assumed USCIS’ approval of her application for F-1 reinstatement — after she fell out of status for three years — would automatically lead to the visa issuance.
After one more failed attempt to get the student visa, we agreed to switch to the K-1 visa based on her recent engagement to her U.S. citizen fiancé.
I advised the applicant and her U.S. citizen fiancé on the Form I-129F petition, including the documentary evidence to submit to get an approval. It took four months for USCIS to approve the petition, which is the first step in the K-1 visa process.
Within a month, we received notice from the National Visa Center to proceed with the next step of filing the Form DS-160, K-1 visa application. After receiving all the forms and documents, the U.S. Consulate scheduled her for a visa interview in April 2020.
Unfortunately, due to COVID-19 restrictions that began in March 2020, the Consulate cancelled the interview. At the time, our client was also traveling in Europe and got stuck there for several months. The K-1 visa interview was eventually rescheduled in December 2020. Our client was also able to return to her home country in time for the visa interview.
I counseled her on submitting the DS-160 visa application, the police certificates, the medical exam report, and the Form I-134, Affidavit of Support.
I confirmed that her prior F-1 visa refusals would not be a problem. She had fallen out of F-1 status for three years, starting in 2015. She departed the U.S. to visit her family abroad, after USCIS approved her Form I-539 application for F-1 reinstatement. USCIS agreed her failure to maintain status was due to circumstances beyond her control.
Her being out of status for three years did not make her inadmissible for 10 years under INA 212(a)(9)(B). No USCIS or Immigration Judge had officially found that she violated her F-1 status, before she filed her Form I-539 application. Under the policy that existed at the time, she did not accrue unlawful presence toward the 3/10 year unlawful presence bar. She also had no other inadmissibility grounds, such as a criminal record or fraud/misrepresentation to obtain a U.S. immigration benefit.
The U.S. citizen petitioner was unemployed and did not meet the income requirement to sponsor her. But her uncle agreed to submit a Form I-134 as a joint sponsor.
I also advised the client on what to expect at the visa interview, including questions on her U.S. visa history, biographic data, and her relationship with her US citizen fiancé.
Despite the obstacles in her case, she was finally issued the K-1 visa in January 2021. She has 6 months to enter the United States on the K-1 visa before it expires.
Upon arrival in the United States on the K-1 visa, she will have 90 days to marry the U.S. citizen petitioner. Following the marriage, she may file a Form I-485 application for permanent residence. If the marriage occurs outside the 90-day timeframe, she may still file for the green card, but the U.S. citizen must file a Form I-130 petition with the Form I-485 application.
When she submits the I-485 application, she may include a request for a work permit and travel authorization. The K-1 visa is for a single entry to the U.S. and does not provide work authorization. While her green card application is pending, USCIS may process her work card and travel document.
If the marriage occurs and the I-485 application is approved, as expected, our client will become a permanent resident of the United States. If the marriage is at least 2 years old at the time of the I-485 approval, she will get a 10-year green card without conditions. Otherwise, she will get a conditional residence card valid for 2 years. She will then need to file a Form I-751 petition to remove conditions and maintain her green card status.
This is a true success story.
Founder & Principal Attorney
Dyan Williams Law PLLC
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 your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.