Lover's Green Card: K-1 Fiancé(e) Visa or Immigrant Visa

When a U.S. citizen falls in love with an overseas foreign national, there are two ways to bring him/her to the United States as legal resident to live together.  One way is to apply for a fiancé(e) visa (K-1 visa) for the foreign national.  The other way is to petition for an immigrant visa on his/her behalf.  There are pros and cons to both options.  (Note: The following discussion assumes the foreign national is living in an overseas country. For foreign spouses who are residing in the United States, they may be able to apply for a green card through the process of Adjustment of Status.)

K-1 Fiancé(e)Visa

The K-1 fiancé(e) visa is technically a non-immigrant visa, as it does not confer permanent resident status to the holder.  However, in reality, it works more like a hybrid visa with features of an immigrant visa.  

To apply for a K-1 visa, the parties must not be married, but they must be able to legally marry each other. Further, they must have met at least once in person within the past two years, unless they are eligible for an exemption.  For example, some cultures or religions do not allow the couple to meet each other before their marriage.   Or if the couple can prove that it would be extremely difficult for them to meet due to financial or health reasons, they may also request for exemption. 

The application process starts with the I-129F application, which is used to establish the relationship of the couple.  Evidence of their relationship and eligibility to get married must be submitted.  Further, documents to prove that they have met each other in-person must also be provided. These include photographs, travel documents, hotel reservations, visa stamps, etc.   If the U.S. citizen has a criminal record, documents must also be submitted to USCIS to explain what happened.  

Upon approval of the I-129F petition, the case will pass through the National Visa Center before it is sent to the American Embassy or Consulate where the fiancé(e) is located.  An interview will be conducted to confirm the couple's relationship.  Note, the visa officer may not be convinced that the relationship is genuine, and K-1 visa rejections are common.

Assuming a K-1 visa has been issued, the foreign national may then enter the U.S. with it.  Upon arriving in the United States, the couple must get married within 90 days.  There is no exception to this requirement.  After their legal marriage, the foreign spouse may then apply for a green card through the process of Adjustment of Status.  The foreign spouse may stay in the U.S. until the green card is approved.  During this period, she may also apply for work authorization to work legally.  Another interview could be scheduled for the couple at a local USCIS officer before the green card can be approved. 

Immigrant Visa Petition

If the couple have already been married, the foreign spouse should directly apply for an immigrant visa.  Where they get married is not important, as long as the marriage is considered legal according to the local laws.  

First, the couple would file an I-130 Petition for Alien Relative with USCIS.  This petition is again to establish their marital relationship. Documents should be submitted to explain and prove their relationship.  For examples, how they met and how the relationship developed, etc. They must also prove that their marriage was lawful.  If they have been married before, they must provide legal documents to prove that the previous marriage was legally terminated. 

Upon approval of the I-130 petition, the case will be sent to the National Visa Center (NVC).  The foreign spouse must submit a comprehensive visa application called DS-260 with NVC, providing information about his or her background, family, education, work history, previous travel history, social media information, etc.  

Financial documents, such as income tax returns, to prove that the U.S. citizen can support the foreign spouse must also be submitted with the Form I-864, Affidavit of Support.  NVC processing has become lengthy and onerous in recent years.  Special care must be taken when preparing NVC documents.

Assuming NVC is satisfied with the documents, the case will then be forwarded to the American Embassy or Consulate where the foreign spouse is located.  As in the case of K-1, a visa interview will then be scheduled.  Only the foreign spouse needs to attend.  Questions will be asked about the couple's relationship.  An immigrant visa will be issued to the foreign spouse if he or she is found to be eligible to immigrate.  There are two types of immigrant visa, IR1 and CR1.  If the couple have been married for less than two years, then a CR1 visa will be issued.  CR1 is conditional for two years only; it means that after about two years, the couple must file another petition to remove the conditions.  Either way, the foreign spouse may then travel with the visa to the U.S. as a landing immigrant.  An actual green card will be mailed to the couple's address.

There is a variation of this method.  If the foreign national happens to be legally present in the U.S., he or she may be able to apply for a green card through Adjustment of Status directly without departing the U.S.

Conclusion

When it comes to applying for a marriage green card, there are different approaches.  Which way is more appropriate depends on the couple's particular situation and circumstances.  Immigration processing time has gotten longer due to the pandemic and staffing issues.  It is important to plan ahead of time to avoid unnecessary delays. 

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

Immigrants, Fiancées, Certain Exchange Visas Exempt From COVID Travel Restriction Policy

Great news has come for those who have been waiting indefinitely from around the world for the immigrants (permanent residence), K-1 fiancé visa, or certain J exchange visitor visas because of the geographic COVID restrictions.  The State Department just announced new exemptions from the travel ban for them.   

Embassies and consulates in South Africa, Brazil, the Schengen Area, the United Kingdom, Ireland, China, and Iran will resume processing of the aforementioned visas after they were announced exempt from the Presidential Proclamation travel bans.  These regions were subject to many months of travel ban due to their high number of Covid cases.  

Embassies and consulates will prioritize immediate family members of U.S. citizens and Special Immigrant Visa applicants. Nonimmigrant foreign diplomats, travelers with urgent needs, and travelers assisting with the pandemic crisis have higher priority than students, exchange visitors (J visa) and temporary employment workers.

The J visa categories included are travel by an au pair with special skills to care for a minor USC, LPR, or lawful nonimmigrant, an au pair whose care prevents a USC, LPR, or lawful nonimmigrant from becoming a public health charge, or an au pair that cares for a minor with parents providing care to COVID patients. Participants in J visitor exchange programs with a valid agreement between a foreign government and any U.S. federal, state, or local government entity that is designed to promote U.S. national interests, and the agreement was in effect before June 24, 2020, also qualify for travel exemption. 

Others include trainees and specialized teachers with program numbers starting with G-3 and G-5 on their DS-2019. Travel for exchange programs that support certain foreign policy objectives is also allowed. 

Aircraft pilots and workers applying for B-1/B-2, B-1, M-1 visas, or through the Visa Waiver Program are also given exemptions to travel. M-2 dependents also can travel if the principal M-1 visa holder's training program is over 4 weeks long. 

Our office has received notices of visa appointments soon after this policy change, but it is important to note that this new policy may not be enforced in the same pace in different locations. Applicants are considered for exemption when interviewed at their respective consulate.   Each consulate or embassy will have more specific information on how it will carry out this policy, based on their resources and local conditions. Applicants should check with their local consulate for more instructions. 

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

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.

37% Increase in Immigration Application Denials

USCIS has released data on immigration application denial rates in recent years. The data, which CATO institute organized in their blog, shows a 37% increase in application denials from 2017 (8.3% denial) to 2018 (11.3% denial). Looking at the years 2016 to 2018, one can observe this upward trend especially in the most popular categories. Higher denial rates of immigration applications, reflecting the more restrictive immigration policy under the Trump Administration, deter foreign nationals from filing for U.S. visas and other immigration benefits. For example, the U.S. State Department reported a 17% decline in the number of F-1 visas issued to foreign students in FY2016. 

Generally, denial rates have risen in almost every category. Specifically, the I-129 Nonimmigrant Worker petition denials increased from 16.8% in 2016 to 22.6% in 2018. This includes the popular H-1B work visa, which allows an employer to sponsor hi-tech and professional workers. Many foreign workers rely on H-1B visas to stay in the U.S. The current denial rate means more than 1 in 5 will likely go out of status, meaning they must stop working and leave the country.

Form I-765 Employment Authorization Document (EAD) denials increased from 6.0% in 2016 to 9.6% in 2018. An EAD allows the holder to work legally and is granted through many different conditions. For examples, EADs are commonly requested by students in Optional Practical Training (OPT) and those pending Adjustment of Status (Form I-485). Without this document, foreigners cannot work legally and may be forced to depart the U.S.

The most dramatic difference is observed in I-131 Advanced Parole documents, which are needed for foreign nationals to reenter the U.S. after international travel. Denials jumped from 8.3 percent in 2016 to 18.1 percent in 2018. Also, denials for I-539 Applications to Extend/Change Nonimmigrant Status rose from 15.6% in 2016 to 17.5% in 2018. Not only is it more difficult to gain legal status, but also to keep or change it.

It is also now more difficult to become an immigrant in the U.S. There are various ways one can be sponsored to apply for legal permanent residence, and all have increased denial rates. The denial rate for I-485 Employment-Based Adjustment to Permanent Residence rose slightly from 5.9% in 2016 to 7.9% in 2018, while the I-140 Immigration Petition for Workers increased from 6.3% in 2016 to 8.6% in 2018. Family-Based Adjustment of Status denials increased from 11.8% to 13%.  I-129F fiancé(e) visa denial rates grew substantially from 13.6% in 2016 to 21.8% in 2017, remaining at 21% in 2018.  It has also become more difficult for citizens and immigrants to petition for their relatives.

These statistics are unsurprising. Over the course of the current administration, USCIS has gradually tightened its policies. Adjudication standards have been tightened significantly, and rules and requirements have been toughened. In addition to foreign students, we are also losing hi-tech and skilled workers to other countries, resulting in long-term social and economic loss to the U.S.

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