Good News for K-1 Fiancé Visa Applicants

K visa cases should be given high priority, according to an August 31, 2020 announcement by the U.S. State Department.  

Many overseas visa applicants encountered delay after the outbreak of COVID-19 and the subsequent closure of U.S. consulates in many countries.  As the pandemic has been slowly under control, the State Department is also gradually reopening U.S. embassies and consulates worldwide.  As of August 28, the overseas consulates are authorized to give high priority to the K fiancee visa cases, which include K-1 fiancé visa and K-2 dependent visas.  

Specifically, consuls are authorized to revalidate approvals of Form I-129F petition in four month increments. The I-129F petition is normally approved for four months only.  With revalidation, U.S. citizen spouses do not need to file a new I-129F petition after the expiration of the initial approval.

However, the announcement does not indicate whether K-1 visa applicants are exempt from President Trump's visa and travel ban.  President Trump's proclamation specifically exempts spouses and children of U.S. citizens (not fiancé) from the travel and visa ban.  Hence, even with revalidated I-129F petitions, K-1 applicants still have to wait until the travel ban is over unless they qualify for other exemptions. 

Also, not all overseas consulate offices are open for business and not all visa services are offered by the reopened offices.  Hence, applicants should contact their local American Consulate or Embassy to find out what visa services are being offered.

How to apply for a U.S. green card?

The immigration laws in the U.S. are extremely complicated.  Many intending immigrants do not understand how they can apply for legal status in the U.S. The following is a summary of seven major ways that one may apply for a U.S. green card:

1. Petition by Close Family Members

If you have a parent, spouse, child, brother, or sister who are U.S. citizens, then you may be eligible to apply for a green card through them. Certain lawful permanent residents may also apply for their relatives. Each relative category has its own sets of rules.   Waiting times vary considerably according to the closeness of the relationship, the immigration status of your relative, your marital status, and your country of birth. For example, if you are in the United States, and married to a U.S. citizen, you may be able to obtain a green card within months.  However, if you are petitioned by your brother who is a U.S. citizen, it may take over ten years for you to obtain permanent residence, depending on your country of birth.

2. Petition by an Employer

A U.S. employer who cannot find a suitable and available U.S. worker to fill a job opening may petition for a qualified foreign worker for the opening.   This is the most common way for foreign workers, skilled or unskilled, to obtain permanent resident status. International students (F-1) and professional workers (H-1B) also frequently use this path to apply for permanent resident status. Normally, a labor certification needs to be approved before the employer may petition for a green card for the employee. Certain highly-qualified applicants are exempt from the labor certification requirement, e.g., extraordinary ability and national interest waiver (NIW) applicants.  They also not need sponsorship of a U.S. employer. 

3. Extraordinary Ability / Exceptional Foreign Nationals and Special Categories

For those people who possess extraordinary or exceptional ability, or work at international companies, they can apply for a green card directly without first obtaining a labor certification, and sometimes even without a job offer.  For some foreigners whose immigration is considered in the national interest of the United States, they may also apply for a green card on their own by requesting for a "national interest waiver".  Eligible religious worker such as priests, pastors, nuns, rabbis, and missionaries may also apply for a green card based on their need to work in the United States.

4. Visa Lottery (Diversity Visa)

Every year, approximately 50,000 immigrant visas are available for nationals of countries which have not sent many immigrants to the U.S. during the preceding five years.  The odds are doubled if both you and your spouse apply at the same time.   

5.  Investor / Investment Visas

For those individuals who are able and willing to invest a substantial amount of capital in the U.S., they may also be eligible to apply for an immigrant visa based on the EB-5 visa category.  Their investment and business must meet very vigorous requirements and create at least 10 jobs in the U.S. 

6. Political Asylum

Foreign nationals who have suffered persecution in the past or who fear persecution in the future may be eligible to apply for lawful permanent resident status by applying for political asylum.   The alleged persecution must be based on race, religion, political opinion, nationality, or membership in a particular social group.  For those who are in the U.S., they can file for asylum affirmatively by using the I-589 form. Substantial documentation is required to support an asylum claim, and frivolous applications will be denied and penalized.

7. Extraordinary Relief / Special Programs

Finally, if you are in removal, deportation, or exclusion proceedings, you may also apply for permanent residence through suspension of deportation or cancellation of removal. Foreigners who are in imminent danger of getting deported may also request for Deferred Action. These are extraordinary forms of relief granted only to the most deserving applicants only.  From time to time, the U.S. government also implements special programs to help certain groups of individuals to obtain permanent resident status in the U.S. such as Section 245i benefits and amnesty.


No matter which category you choose to apply, remember not to take any shortcuts or file any untruthful applications.  There are many dishonest individuals out there who always try to scam intending immigrants.  Be careful, as taking the wrong path could have very serious consequences. 

If you are interested in applying for a U.S. green card, please schedule a legal consultation with our office at help@szetolaw.com or 1-732-632-9888.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Delay in immediate relative I-130 processing

U.S. citizens who filed immigrant visa petitions on behalf of their family members may have noticed the current delays in the processing of these I-130 petitions.  It is now taking about eight to ten months to process these petitions, and the delay has caused problems for many immigrant families.  Before the backlog of cases is cleared, it is very important for applicants to understand their options and plan their cases carefully in order to alleviate the impact caused by the current delay.

U.S. Citizens' right to petition for close family members
One of the many benefits of being a U.S. citizen is the ability to petition for one's immediate relatives to immigrate to the United States.  Immediate relatives (IR) include one's parents, spouses and minor children. Under the current immigration policy, immediate relatives are exempt from the annual visa quota and can immigrate to the United States as soon as their petitions are approved by the U.S. government. Hence, the processing time of their cases has a direct impact on how soon they can immigrate to the United States.

Delays in immediate relative I-130 petitions
The first step of the immigration process is to file an immigrant visa petition (Form I-130).  The U.S. Citizenship and Immigration Services (USCIS), a branch of the Department of Homeland Security, is charged with the responsibility of adjudicating all immigrant visa petitions.  It has been the practice of the USCIS to process IR petitions expeditiously as they are not subject to the visa caps.  Consequently, the processing times of IR petitions have traditionally been shorter than those in other visa preference categories (such as those filed by permanent residents).  However, since early 2013, the processing of the IR petitions has slowed down significantly.  As of October 31, 2013, USCIS reports that it was only processing IR petitions filed in February 2013. The agency is aware of the issue and is taking measures to remedy the situation.  For example, the agency has been transferring cases between service centers to fully utilize the agency resources.

Know one's options and plan carefully
In light of the current processing delays, intending immigrants their petitioners should plan their cases carefully in order to avoid lengthy delay of their cases.  First of all, they should know their options.  For example, rather than filing an immigrant visa petition for a foreigner, a U.S. citizen may use a fiancee visa petition instead. Currently, the K-1 fiancee petitions (I-129F) are taking about five months to process, which is a lot faster than an I-130 petition.  In order to apply for a fiancee visa, the parties must not be married.  Couples who can delay their marriage should consider filing for the fiancee visa classification.

If a couple is already married and has a pending I-130 petition, they can file an K-3 visa petition to allow the foreign spouse to first come to the United States while waiting for the processing of the I-130 petition. As of October 31, 2013, the processing time of the K-3 (I-129F) petition is about five months.  However, it is not unusual for USCIS to adjudicate both the K-3 and I-130 petition simultaneously.  Hence, delays in I-130 processing could also slow down adjudication of the K-3 petition.

Upon approval of the I-130 petition, the case is forwarded to the National Visa Center (NVC) for further processing and preparation for the consular interview.  Nowadays, NVC requires substantial amount of documents and information from the parties.  To speed up the immigration process, the parties should plan a head start with NVC processing.  For instance, the parties should have their original or certified documents ready including birth certificates, marriage certificate, divorce judgments, etc.  The beneficiary can also obtain the police clearances in advance but should be mindful of their effective dates.  The petitioner should also have their financial documents ready early on, including their federal tax returns, employment verification documents, proof of assets, etc.

Conclusion
USCIS has announced that it intends to bring the processing time back down to five months - the agency's target processing time for immediate relative petitions.  Before this goal is achieved, it is important for immigrant families to carefully consider their options and plan their actions accordingly.  For cases with unusual delays or special circumstances, the parties may contact Congressional members and USCIS Obudsman for assistance.  As a last resort, the parties may also file a Writ of Mandamus with the federal court to request that their I-130 petition be adjudicated.

K-1 Fiancé(e) Visa Processing at Guangzhou - Update

One of the many benefits of being a U.S. citizen is that one may bring his or her fiancé(e) to the U.S. by means of the K-1 visa.  There are no numerical limitations on the K-1 visa.  Processing of the K-1 visa is usually faster than an immigrant visa.  For U.S. citizens who would like to bring their fiancé(e)s from China to the U.S., they must go through the U.S. Embassy in Guangzhou.

Form I-129F Processing
Regardless of where ones’ fiancé(e) is, the first step of the immigration process is the filing of the I-129F Petition for Fiancé(e).   The application form must be filed with the U.S. Citizenship and Immigration Services at the correct filing address.  Currently the form should be sent to USCIS, P.O. Box 660151, Dallas, TX, 75266.  The current filing fee is now US$340.   One must use the current version of the I-129F form dated 06/13/2013.  The form edition, filing address and the fee are all subject to change.

It is important to note that the I-129F form is also used  by U.S. citizens to bring their spouses and children to the U.S. first while waiting for the immigrant visa petitions to be processed.  Therefore, it is important to answer the questions in the form correctly to avoid mistakes.

The USCIS will review the I-129F form based on the preliminary documents and evidence submitted by the applicant.  If there is sufficient evidence to move forward, it will be approved relatively quickly.  Right now, it is taking about 3 to 4 months to process the I-129F.  Sometimes the application is transferred to another USCIS Service Center to process.  This is just normal workload balance.  If a formal Request for Evidence (RFE) is issued, the petitioner must respond to it before the deadline, or else the application will be denied.

Guangzhou Fiance(e) Visa Processing
The approved I-129F fiancé(e) petition will then be sent to the National Visa Center  in Missouri (a branch of the U.S. Department of State) for case registration.  The case file will then be forwarded to Guangzhou, China, via courier delivery services.  Usually within 2-3 weeks, the Embassy will send out notification email or letters to the petitioner and the fiancé(e) with further instructions.

The parties should immediately register their information online, choose a document pick-up location (for their approved visa), schedule a visa interview, pay a processing fee, download the K Visa Instruction Packet and then follow the instructions to prepare all applications and supporting documentation.  Currently interviews can be scheduled within two months from the time of registration.

Note: Recently the State Department has required that all K-1 visa applicants must use the DS-160 form.

At this time, the fiancé(e) should also schedule a medical examination and vaccination appointment with one of the Embassy’s designated panel physicians prior to the visa interview. The U.S. citizen petitioner is not required to be present at the interview.

On the date of the interview, the fiancé(e) must bring all documents, evidence, and the Embassy letter to the U.S. Embassy in Guangzhou at the scheduled time.   Note: The address of the Consular Section holding the interviews was changed recently to Tian Yu Garden (Phase II) 5th Floor 136-142 Lin He Zhong Lu, Tian He District, Guangzhou (See this link)

The visa interview is usually very short and the applicant will be notified of the decision immediately.  If a K- 1 visa is not approved, one must act quickly to try to respond to the reasons for denial before the case is returned  to the USCIS. 

If approved, the visa and passport will be sent to the applicant via EMS services within a few days. The applicant/fiancé(e) may now purchase their plane ticket and plan their trip to fly to the U.S.  

Upon arrival in the U.S., the fiancé(e) must marry the U.S. petitioner within 90 days before he or she may apply for lawful permanent resident status. 

All K Fiancé (és) Visa Applicants must start using Form DS-160

Secretary of State John Kerry has issued a cable communications to all American consulate offices mandating the use of Form DS-160 in all K (fiancé / fiancés) visa applications.  This cable message states that, effectively immediately, K-1 and K-2 nonimmigrant visa applicants must start using the DS-160 Nonimmigrant Visa Electronic Application.  The DS-160 will replace the DS-156 Electronic Visa Application form (EVAF), the DS-156K (Nonimmigrant Fiance Visa Application), and the paper-based DS-230 Application for Immigrant Visa and Alien Registration (parts I and II).

The following are the exceptions:  For K visa cases in process at a U.S. embassy or consulate, the DS-160 is not required when, prior to October 7th, 2013, one of the following conditions apply:

• The K visa applicant is already scheduled for an interview.
• The K visa applicant has already been interviewed and has been requested to submit additional documentation or is pending administrative processing.
• The K visa applicant has already submitted a valid, signed, unexpired DS-156, DS-156K and/or DS-230 or received instructions to do so.  

It makes sense to switch to the new DS-160 for K visa applications, although the switching is quite sudden without much advanced notice to the visa applicants.  Presently, K visa applicants must complete multiple application forms including the DS-156 form, the DS-156K form, and the DS-230 form (which is an application for immigrant visas).  These forms are quite cumbersome and repetitive in terms of the information requested.  Although the K visa is for fiancé and fiancés of U.S. citizens who intend to eventually immigrate to the U.S., it is still technically an non-immigrant visa.  Therefore, using the DS-160 Non-Immigrant Visa Application is a logical choice.

The DS-160 application is an online application.  It is quite comprehensive in terms of the questions asked. Applicants should have their immigration documents and information ready before completing this application online including the following:

• Valid Passport
• Travel itinerary, if you have already made travel arrangements.
• Dates of your last five visits or trips to the United States
• Dates of your international travel history for the past five years.  
• Employment history: Names of employers and dates of employment
• Educational background: Names of schools and dates of attendance
• Students and Exchange Visitors (F, J, and M): Provide your SEVIS ID number, and the address of the school/program at which you intend to study. This information should also available on your I-20 or DS-2019 form. 
• Temporary Workers (H-1B, H-2, H-3, L, O, P, R, etc.): You should have a copy of your Form I-129 available when completing your DS-160. 
• Other Temporary Workers: You will be asked for information about your employer, including the employer’s address, while completing your DS-160

Marriage-based K-3 visa processing changes

Effectively February 1, 2010, the processing of the K-3 marriage-based visa is changed. If the U.S. State Department National Visa Center (NVC) receives the approved K-3 visa petition and the underlying I-130 immigrant visa petition filed by the same petitioner from the U.S. Citizenship and Immigration Services (USCIS) at the same time, the NVC will administratively close the nonimmigrant K visa petition and continue to process the immigrant visa petition only.

A United States Citizen, after marrying a foreign national, may file petitions for his or her spouse to come to the United States so that they may live as husband and wife. If the foreign spouse lives outside of the United States, there are usually two ways to bring the spouse here. First, the United States citizen may file an immigrant petition for his spouse by using the U.S. Citizenship and Immigration Services Form I-130. Upon approval of the petition, the case will be sent to the National Visa Center in Missouri for further processing. Original documents such as birth certificates need to be presented along with financial support affidavits and documents. Secondly, the petitioner may also choose to file a K petition so that his spouse may come to the United States faster while the immigrant case is pending. This K visa should not be confused with the K-1 fiancée visa, which is designed for unmarried fiancées or fiancés of United States Citizens to travel to the U.S. to get married. For married couples, the K-3 visa should be used. One of the reasons to use the K-3 visa is for the processing time, which is usually a lot faster than the immigrant petition. It has been the practice of the NVC to process both petitions. The foreign spouse may choose to use the K-3 visa to travel to the U.S. first and complete the immigration process here, or to wait for the immigrant visa to be approved and enter the U.S. as legal resident.

Recently, the NVC announced that in situations where the U.S. Citizen and Immigration Services (USCIS) has approved both the immigrant visa petition and the K-3 petition and forwarded both files to the NVC, the NVC will no longer process both petitions. Instead, the NVC will “administratively close” the K-3 petition and continues to process the Immigrant Visa petition. What it means is that the K-3 file will be closed and placed on the shelf temporarily. If the processing of the immigrant visa for the parties is successful at the end, the K-3 case will no longer be used. The NVC will contact the petitioner and you with instructions for processing their immigrant visa. However, if the NVC does not receive both I-130 petition and the I-129F K-3 petition simultaneously, the NVC will continue to process the K-3 petition by sending it to the embassy or consulate in the country where the marriage took place. If the marriage took place in the United States, the NVC will forwarded the petition to the embassy or consulate that issues visas in the foreigner’s country of nationality.

It appears that the change is to avoid duplicated processing on the government side. By processing only one petition, both time and resources can be saved. However, it is unclear how much impact this change will have on the total processing time. Would it be faster or slower for married couples to be re-united in the U.S. Most U.S. consulate offices especially the busier ones process the K-3 a lot faster than the immigrant visa. It is hoped that consulate processing of the immigration visa will now speed up given that the consulate officers should now have few number of K-3 petitions to process.