Immigration Law...

Understanding Immigration
Here we have answered a lot of the general questions you may have about fiancee or fiancée visas, also called K1 visas. This area is meant to be an introduction and is not to be considered legal advice.

The easiest way to understand immigration is to think of it as the roots of a tree. They keep going down and splitting. You must be careful in this area of law to always keep issues separated. There are many of them and they interact, but each issue, or sub-area, has its own law associated with it.

This is an area of law we, as lawyers, enjoy very much; it is about new beginnings and happy clients. It is about dreams coming true. There are a few catches and tricks to this area of law you really need to be aware of before embarking on this journey. As over 95% of the cases we deal with involve a female fiancée, we will use the spelling with both Es, but we will mean to address persons of both genders. A fiancée visa, also known as the K1, is for U.S. citizens (not permanent residents, also known as Green Card holders or Resident Aliens) only.

A fiancée visa, in summary:

a. Allows you to bring to the United States someone that you met abroad.

b. The person receives a 4-month window and in that window can stay in the U.S. for up to 3 months' time.

c. You, the U.S. citizen, will either have to marry the person or send them back before the 3-months end.

d. There are no extensions to the K1.

e. There is no switching of fiancées with the K1. f. There is no change of status to another visa. g. There is no change of status to that of a visitor. h. You cannot apply for a Green Card under another category if you entered as a K1. The key to understanding the value of this visa is in understanding a bit about the law in immigration.

Basically, if you enter the U.S. with the desire to remain (as they assume most anyone with a fiancée or spouse does), then you cannot enter as a nonimmigrant. A nonimmigrant is someone who enters but only for a temporary period of time, such as a visitor going to Universal Studios, or a businessperson flying to Dallas to attend a conference, for example. We are often asked whether it is quicker to simply marry someone abroad and bring them back with you. Well, that is not allowed. If you marry someone abroad, that person must either wait for a Green Card to be approved (the old and slow way), or apply for a visa called the K3, that allows the person to wait in the United States for that Green Card. The process can take anywhere from 6 months upwards (although we have completed them in 3). It is safest to call a lawyer to have an idea of what the current wait is. However, under no circumstances are you allowed to marry someone abroad and bring them back with you. So you have met someone abroad (or here on the internet, and went abroad to meet them in person) and wish to bring them to your loving arms.

In summary, here are your options: 1. Go there, marry the person and have them wait for a Green Card (Resident Alien Card) abroad [longest]; 2. Go there, marry the person, apply for a K3 and have them come here to wait for a Green Card [about the same or slightly longer wait than a K1 Fiancée visa] 3. Apply for a K1 visa and then when the person comes here for the 3-month allowance, marry him or her and immediately submit the Green Card application.

If you are going abroad to marry the person, you will have to contact a lawyer before you go, so that you can obtain all of the requirements when you go there and save the headache and cost of having all of them shipped.

What are we referring to? Well, in any case, you have 2 or 3 different sets of information required:

a. You have to fill out forms for the government. If you decide to have a law firm handle this for you, then they will have questionnaires that are different than the government forms. You will want to fill these out for yourself and your fiancée so that the law firm has time to prepare the government forms and you can take them with you when you visit him or her abroad. If you don't deal with this in advance, you will find yourself flying back and then having to pay for international shipping both ways to obtain original signatures on those forms. More importantly for you, it delays the case.

b. Secondly, the government requires what is known as documentary evidence. Examples include pictures, birth certificates, divorce certificates and so on. You can save a lot of money by collecting these when you are abroad. Copies are required with the case submission and originals are only required at the interview unless the government suspects the forms you submitted are fraudulent. In that case, they may ask for them sooner.

c. Third, in cases such as the K1, we like to prepare what is known as a Memorandum of Law, also known as a Memorandum of Points and Authorities. This is basically a document, not unlike a custom-made suit. It applies the facts of your case to cases and code sections so we can make a case for you.

Forms, after all, don't always make a case. The example we like to use is this: Assume that "J Smith" was arrested for burglary and you were the judge. In his defence, he submits a form with his name, address, and a few other pieces of information. Does that make a case? No. Likewise, in immigration, the forms themselves don't always make a case and as a result the government will return what is called an 'RFE' or Request for Evidence, where they ask more questions. It is better to supply everything up front and avoid the risk of an RFE slowing down your case.

A question we are often asked is whether your fiancée is able to visit the United States while a K1 is pending. If, for example, there was an emergency situation, and they would return shortly, it is very likely they could. The catch here is that a K1 is an exception to the nonimmigrant rule. The person is considered an intending immigrant and they are not to be issued a visa to travel. However, if the person could prove that they would return to their country of origin and did not intend to remain in the U.S. on this trip, they could technically make the trip.The reality of it is that the Embassy personnel rarely allow someone to make a visit while a K1 is pending.

With respect to a K3, or Green Card application, the same holds true. Technically, if you do not make a trip with the intent of remaining, then you could be issued a visa, but the officers abroad will rarely do this. One issue that is very important, refers to the situation we often hear about, but few know the impact of. Having explained everything above, we still have callers who think they will deceive immigration officers and enter the United States by pretending to come here on a temporary visit and then remaining.

Here's the deal. Sure, some people get away with it. We deal with the ones who don't. You risk a permanent bar from the United States for immigration fraud. If you use your fraudulent entry to file a case, both the foreign person and the United States citizen are guilty of first-degree immigration fraud, which carries a penalty of 5 years in federal prison and a fine of $250,000. Does it happen every day? No. However, how many times does it have to happen to ruin your life. It is a difficult situation to wait a year or year and-a-half for a Green Card interview and then get arrested. Additionally, if you have any enemies who send a letter to the Immigration Department , you will find that the Immigration Dept. will follow up and your quality of life will soon diminish. We really don't recommend you try this.

Many people inform us that they know of a case where someone came to the United States and then married, filed for a case and had a successful conclusion. Yes, this can and does happen. The key to this scenario is that the foreign person has to come to the United States with no intent to remain. Ideally, they have not met their fiancée yet. In fact, a perfect case is where someone comes to the United States to vacation and then meets the person for the first time, and decides to marry during that trip. In this scenario, there is no violation of 214(b), the section dealing with nonimmigrants not allowing to remain if they have immigrant intent.

The reason this works is the foreign person came to this country with no intent to remain, just an intent to visit. As cupid would have it, the person's life direction changed because the person met someone they did not expect to meet. On the other hand, if this person, let's call her Terri, has been communicating with the U.S. citizen, let's call him Giovanni, over the internet, and then comes here to visit him, deciding to get married and remain, you have a different situation. First, it is most likely an officer would not allow Terry to enter the United States if the officer knew of the truth. Second, an officer at the time of the Green Card interview could argue that Terry entered with the intent to remain and deny the case.

Toll-free 1-800-825-7410

or outside the U.S. call 1-850-668-0270
ch@myImmigrationLawyer.net