9/19/2004
More and more people are meeting their fiancees and spouses through online personals. However, few are prepared for the challenges they face with immigration laws. This article explains the area in great detail and in plain English so that all readers can easily understand the area and not feel threatened by the requirements.
Technology has affected many aspects of our lives and it seems our love life is no exception. Something we didn't experience a few years ago were calls from clients who had met over the online personals. Today, over half the calls we receive are from people who met on one or another of the many online personals who cater to people looking for that special someone.
The problem with meeting someone in another country is that if you don't know the immigration laws, you could be in for some dreadful surprises. The goal of this article is to explain immigration in this area so that you are not caught by surprise. Let's start at the beginning and work our way down the roots of this old tree. Let's say this is someone you want to marry. There are two ways to deal with this new situation: you can marry the person in their country or here. However, be careful.
You cannot have your fianc?e/fianc? enter the United States as a visitor (B1, B2 visa or visa waiver) with the intent of marrying you; if you do, you may affect the person's chances of visiting in the future. Under certain circumstances, such a visit is considered immigration fraud. How do you get around it? File a fianc?e visa, otherwise known as a K-1 or K1 visa. This visa will allow the person to enter the U.S. for a three-month period and then either marry you or return. In order to qualify for this visa, you, the 'petitioner' must be a U.S. citizen and must have personally have met the person in the last year.
The second option is to travel to the person's country and marry him or her there. This procedure normally takes longer than the fianc?e visa. Although many people believe they can fly back with their new spouse, the person cannot enter the U.S. without the proper visa. In this case, you can apply directly for a Green Card (also called the Resident Alien card) in the foreign country or apply for a K-3 visa, which allows the person to wait for a Green Card in the United States. This visa came into being December 21st of 2000 and until then, foreign people who married Americans had to wait outside the country for over a year.
Even today, if a person marries an American while in the United States as a visitor (which is only possible if they entered with nonimmigrant intent) and leave the country without permission (called Advance Parole), they could find themselves stuck outside the country for up to a year or longer. In all of the circumstances mentioned, you can apply for work authorization for the person once he or she enters and that will take 30-90 days to receive.
There are a few details that you may find handy to know. First, if the person on a K1 fianc?e visa chooses not to marry you, they cannot marry someone else or change status to another one. Second, minor children may accompany a K1 person as K-2s. Third, a case must be filed where you reside. Fourth, make sure both of you are single (i.e. no divorce pending) and are able to marry. If you are not able to marry, then you will not gain approval for the case. If you should die or withdraw the case, the K-1 case ends. Fifth, a visa is issued for a 4-month period and this can be extended, however, once inside the U.S., the person can only remain for three months' time. Sixth, you can only apply for a K1 visa inside the United States. Seventh, if your fianc?e's children do not enter at the same time as your fianc?e, they can enter later under a procedure known as "Follow to Join"; the children have a year in which to take advantage of this procedure. Eighth, you can file a fianc?e visa even if your fianc?e is in deportation proceedings. Ninth, if the children of your fianc?e are 18-21 and do not qualify for an immediate Green Card through their U.S. citizen step-parent, they can still obtain a Green Card because their status is gained through their parent's K1 visa. If you are in this situation, you must complete it before the child reaches 21. This is a great 'extra' in this tough area of law.
Once approved, and only then, the case is forwarded to the Embassy for further processing after it has been sent to the National Visa Center for a verification of the records. At that point, more forms are generated and a medical examination will take place. At this point in time, a form numbered I134, known as an Affidavit of Support is filed; when you apply for a Green Card inside the United States, a much more complex Affidavit of Support, numbered I864 is filed. (If you don't meet the requirements, don't fret, changes in the law have made that easier for you).
Another major area of concern is inadmissibility. More and more, people call us explaining they are in love with a fianc?e or fianc?e who has a criminal record in their past. In many cases, these records can render the person inadmissible (call us for an article on waivers) and unless you overcome them by having an attorney create a case called a "Waiver of Inadmissibility", the fianc?e or fianc? won't be admissible. Waivers are expensive and they are not available for all cases; call a lawyer and discuss the details so that you can have an accurate determination of where your fianc?e or fianc? stands.
Should you decide to marry your K1 fianc?e or fianc?e, it would be a great idea to begin your Green Card (or Permanent Resident) case before you actually marry so that it can be completed and ready to file the minute you have your Certificate of Marriage. In this way, you can be efficient with respect to the length of time you have to wait for the Green Card interview (which is currently running 1-1.5 years).
If you decide to follow the K3 route, you are basically applying for the Green Card of your spouse and asking permission for him or her to wait in the U.S. for the case to be processed. The children of a K3 are classified as K4s and the validity of their visa cannot extend past their 21st birthday. Children to do not need to file a separate petition, they only have to prove that they are children of the K3 person. The K3 is applied for in the country in which you were married.
As is the case with a K-1 fianc?e visa, when the case is approved, if your spouse is unable to join you in the United States immediately, he or she can have the 4-month approval (of the form I129) extended for another 4 months. The K-3 is issued for a 2-month period of time. A K3 cannot change their status in the United States and someone on a Nonimmigrant visa in the U.S. cannot change to a K3 or K4 status. If your K3 spouse has to leave the country, he or she does not require advance permission, unlike the case with a person in the U.S. who marries a citizen, requiring Advance Parole. If the Adjustment of Status case (i.e. changing status to that of a Green Card holder) is denied, the person has 30 days to leave the country.
On the topic if denial, waivers are the issue again. If, for example, your spouse previously overstayed his or her visa by 6 or 12 months, he or she will be subject to the 3 and 10-year bars unless the grounds can be overcome via a waiver.
All things considered, it is not the end of the world. Our average times (including U.S. and consular processing time) are 5-7 months for a K1 and 6-8 months for a K3 visa as of the writing of this article. These procedures are not difficult for a law firm and you all know how difficult it is to meet the right person. You've met someone on the planet you are compatible with. You have met the person in their country and you are still crazy about him or her. Well, in my opinion you're 90% there; don't let the immigration aspects let you down. Hire a good law firm and relax, the procedure is not an expensive one!
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