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Can I File a K-1 Visa While Still Married?

admin — Fri, 02 Dec 2011 19:19:40 +0000

It happens more often then you would expect. In a rush to start their life together, a couple rushes off to file a K-1 fiancee visa petition without bothering to wait for a divorce to be finalized or without bothering to get a divorce. The couple tries to rationalize their decision – the marriage “ended” so long ago, no one really cares, I never speak to my spouse, I don’t even know where he or she is, etc. Then, as the months go by and the couple waits for a decision, they start hoping – maybe the immigration agency won’t notice the previous marriage, maybe it won’t matter, maybe I can fix it if they catch it.

Unfortunately, when the K-1 fiance couple finally gets a decision from the immigration agency, it tells them that the divorce needs to be finalized, that there is no correcting it now, and that it cannot be brushed over and ignored. The immigration agency does care – it wants its i’s dotted and t’s crossed. All of them.

Instead, the couple must start over…from step one. Worse, they have to wait apart for longer than necessary. If you are thinking about applying for a fiance visa, make sure to consult a fiancee attorney – a couple’s time together is much more important than cutting a few corners and doing it the cheap way.

What Are the Fiancee Visa Requirements?

admin — Tue, 27 Sep 2011 15:43:02 +0000

There is a lot of information out there about what, and what is not, required for the K-1 Fiance visa. You may be confused by it. The following is meant to be a straight forward, no-nonsense, statement of the fiancee visa requirements. If you have additional questions after reading it, please contact a New York fiancee visa lawyer. The firm is able to assist K-1 visa clients throughout the United States and the world.

K-1 Fiancee Visa Requirements

Both the U.S. Citizen petitioner and the foreign national beneficiary must be free to marry at the time the petition is submitted.
Both the U.S. citizen petitioner and the foreign national beneficiary must be able to marry each other in the state where they plan to reside.
Both the petitioner and the beneficiary must be ready to marry within 90 days of the beneficiary’s entrance into the United States.
The petitioner and beneficiary must have a good faith relationship with each other (and be able to demonstrate it).
The petitioner and beneficiary must have physically seen each other within the two years immediately before the petition is filed.

Further Explanations:

1. Both the K-1 Petitioner and K-1 Beneficiary Must be Free to Marry

This means that at the time the petition is filed, both individuals must be single. Any divorces must be finalized before the petition is submitted.

2. Both the K-1 Visa Petitioner and Beneficiary Must be Able to Marry In the State Where They Plan to Reside

The couple must be able to marry in the state where they plan to reside. This means that they must fit into a particular state’s marriage laws. For example, both must be of legal age in the state, and must not violate any of the state’s incest laws.

3. Both the petitioner and the beneficiary must be ready to marry within 90 days of the beneficiary’s entrance into the United States

Both must be willing and ready to marry withing 90 days of the beneficiary entering the United States. The visa is not meant to provide a “trail period.” When the petition is filed both should be committed to being married once in the United States.

4. The petitioner and beneficiary must have a good faith relationship with each other (and be able to demonstrate it)

It will be necessary to demonstrate to the immigration agency and the consulate interviewer that the couple has a good faith relationship with each other and plan to marry based on reasons other than immigration-based.

5. The petitioner and beneficiary must have physically seen each other within the two years immediately before the petition is filed

The law requires that a couple physically see each other within the two years immediately before a K-1 Visa petition is filed. This is a strictly enforced policy – it is not sufficient to have seen each other three years ago, or immediately after a petition is submitted. The encounter must be within the two year period. There are two exceptions to this requirement: if the visit would cause extreme hardship to the petitioner, or if the visit would violate traditional customs.

To learn more about applying for a K-1 Fiancee visa, please contact the firm.

How Strict is the K-1 Fiance Visa’s Two Year Meeting Rule?

admin — Tue, 13 Sep 2011 16:30:18 +0000

In a word: Very!

Many K-1 visa applicants often ask if it is okay if they have not seen each other in two years. Many think it is okay – especially when a couple has known each other for many years, have seen each other, and have even lived together for a time. Unfortunately, that is not the case.

The USCIS is very strict at requiring a K-1 visa couple to meet during the two years immediately prior to filing the K-1 visa. It is not sufficient to meet after the petition is submitted, or to have meet two years and one day prior to filing the K-1 fiance visa. A couple must meet within the two years immediately before the application is filed.

The USCIS does provide for two types of waiver to the two year meeting rule: the extreme hardship waiver and the cultural prohibition waiver. However, both are difficult to obtain, and a consultation with a fiance visa lawyer should be scheduled.

How Does the K-1 Visa Process Work?

admin — Tue, 19 Jul 2011 16:37:39 +0000

The Fiance Visa Process (Also known as the K-1 Visa Process) is often misunderstood by K-1 couples. Many K-1 visa couples underestimate the complexity of the K-1 process, and do not realize the length of the multi-stepped process. A general outline of the K-1 fiancee visa process follows. For a more detailed discussion of the K-1 visa process – please contact a K-1 Fiancee Visa lawyer.

If you have any questions, please contact a Fiancee Visa Lawyer.

BIA Allows K-1 Visa Holder To Adjust Status After Marriage Ends

admin — Wed, 27 Apr 2011 14:56:39 +0000

The BIA Immigration Court recently allowed a former K-1 visa holder to adjust status to lawful permanent status after the termination of the K-1 beneficiary’s marriage to the K-1 Visa petitioner. The K-1 visa holder in the case married the petitioning U.S. citizen spouse within the required 90 days of entering the United States. The K-1 visa holder, however, did not seek permanent residency for two years. When the K-1 beneficiary finally submitted the petition, the USCIS rejected it because the petition had not been filed within two years of the wedding.

Subsequently, the K-1 couple divorced.

The Board of Immigration Appeals (BIA) determined that the USCIS’s reason for the denial was not based on law, and decided that the K-1 beneficiary’s adjustment of status application should be redetermined despite the couple’s divorce.

The facts of the case are very specific, and similarly situated individuals should contact a K-1 visa lawyer to discuss what options might be available. If you have a K-1 visa question, please contact Gafner Law Firm

“Aged Out” K-2 Child Adjusts Status In Immigration Proceedings

admin — Tue, 19 Apr 2011 14:26:42 +0000

A Charlotte, North Carolina immigration judge recently granted a K-2 status holder the ability to adjust status to permanent residency despite the K-2 holder “aging out” by turning 21 before the adjustment of status application’s submission.

Minor children of K-1 fiance(e)s of U.S. citizens are entitled to K-2 immigration status. K-2 visa applicants must be a minor (unmarried and under 21 years old). Similar to the K-1 visa, the K-2 visa holder can obtain permanent residency through adjustment of status in the United States. In the immigration case mentioned above, a K-2 holder turned 21 after entering the U.S., but before filing an adjustment of status application. The USCIS determined that the K-2 visa holder had “aged out” and could not adjust status after turning 21.

However, the immigration judge, after receiving the case in removal proceedings, determined that the K-1 visa regulations and laws require a person to be under 21 at the time he or she enters the United States.

However, K-1 applicants who have similar situations should contact an immigration lawyer before proceeding. This issue is still being debated in different courts throughout the US.

Where is the K-1 Visa Filed?

admin — Tue, 22 Feb 2011 13:37:20 +0000

It is important to file an immigration petition in the right location. If you are lucky, an immigration petition filed in the wrong place then it could be weeks or months before it is forwarded to the right location. Most likely, the petition will never be forwarded to the right location. Worse yet, the filer will probably never get notified that the petition was filed in the wrong place.

Currently, the correct place to file the K-1 visa is:

The USCIS Dallas Lockbox

For U.S. Postal Service:

USCIS
P.O. Box 660151
Dallas, TX 75266

For Express mail and courier deliveries:

USCIS
Attn: I-129F
2501 South State Highway 121 Business
Suite 400
Lewisville, TX 75067

However, it is important that the USCIS website is checked right before the K-1 visa is submitted to ensure the address has not changed (which it does without notice).

Can Any U.S. Citizen File a K-1 Visa?

admin — Tue, 15 Feb 2011 14:06:31 +0000

Who can file for the K-1 visa? Only U.S. citizens are capable of petitioning for the K-1 visa. Additionally, any American citizen can petition. This means that a person who becomes a naturalized U.S. citizen can immediately petition for his or her fiance(e) to enter the United States and marry.

The K-1 visa is not available to permanent residents or foreign nationals who have nonimmigrant visas. If you are a permanent resident, and have been for five years, then you may want to naturalize (if you are otherwise eligible). Once you naturalize, you can petition for your fiance(e) and many other family members.

Can a K-1 Visa Holder Marry Another?

admin — Tue, 08 Feb 2011 14:10:07 +0000

Relationships do not always work out the way that people expect. Sometimes individuals enter the United States on the K-1 visa, but do not marry the K-1 petitioner. This is often because a couple decides that they do not wish to be married.

In these instances, the K-1 status holder sometimes either intentionally or unintentionally remains in the United States. Often this is because he or she does not have the ability to leave the United States due to lack of funds. As time goes by, the K-1 beneficiary eventually finds another person whom they fall in love with and decide to marry.

When this happens, the question immediately arises, can the K-1 visa beneficiary marry another U.S. citizen?

The INA specifically states that a K-1 visa beneficiary cannot adjust status and become a permanent resident based upon marriage to a person other than the original K-1 visa petitioner. INA 245(d).

What is the K-1 Visa Filing Fee?

admin — Tue, 01 Feb 2011 15:53:16 +0000

The K-1 visa allows for a U.S. citizen to bring a fiance or fiancee into the United States for the sole purpose of marrying. The K-1 visa requires a filing fee of $340.