An explanation of K1 Fiancé Visa Adjustment of Status and Divorce

A person in K1 status can only adjust based on marriage to the US citizen petitioner, not another marriage

Sometimes a k1 fiancé visa marriage like any other marriage does not always go as plan despite even the best intention. Sometimes there is a breakdown in the marriage, a k1 visa divorce and the foreign national has questions for an immigration lawyer about his/her eligibility for adjustment of status and a green card.

A k1 visa holder can only adjust status on the basis of a marriage to the US citizen petitioner within 90 days of admission to the United States. The Immigration and Marriage Fraud Amendment of 1986, explicitly prohibits a person in K1 status from adjusting on the basis of marriage to someone else.

What the K1 must show if there is a divorce

If the marriage occurred within 90 days, a person in K1 status (and her dependent children admitted in K2 status) can still adjust status to that of an alien lawfully admitted to permanent residence even if the marriage ends in divorce. Matter of Alfred Sesay, 25 I&N Dec. 431 (BIA 2011) & Matter of Le, 25 I&N Dec. 541 (BIA 2011).

The applicant must prove that

  1. the marriage occurred within 90 days of admission and that
  2. The marriage was in good faith when it occurred (affidavits of family and friends, joint assets etc.).

Because adjustment of status is an extraordinary relief, it is granted or denied based upon the equities and adverse factors present in each person’s case. Furthermore the relationship in a K1 visa case is subject to more scrutiny than for marriage immigration cases. Factors surrounding the divorce such as the length of the marriage, conduct after the marriage, whether the couple lived together, the reason for the divorce and a failure to support minor children may be considered in determining whether the marriage was in good faith. But if the marriage is real at the start, it is valid for adjustment of status.

A person in K1 status adjusts status to that of lawful permanent resident on the basis of the earlier approved I-129F petition. The divorce does not revoke this type of petition and the K1 is eligible for adjustment upon admission but conditioned on the marriage to the US citizen. The person on K1 status must still not be otherwise inadmissible. The affidavit of support requirement is met by an approved I-134.

Removing conditions on Permanent Residence

If the K1 was granted adjustment of status based upon a marriage to a US citizen that is less two years old when the adjustment is decided, the person will be granted conditional permanent resident status. If the K1 is no longer married, he or she does not have to wait until within 90 days of the second anniversary of the grant of conditional permanent residence to apply to Remove Conditions on Permanent Residence Based on Marriage; he or she can do so any time after the divorce, i.e. he or she can apply early. He or she must however request a termination of marriage waiver of the joint filing and interview requirement remove conditions on permanent residence based on marriage.

To qualify for a termination of marriage waiver, the conditional resident must prove that

  1. he or she entered into the marriage “in good faith,”
  2. the marriage was legally terminated, and
  3. The conditional resident was “not at fault” in failing to meet the joint-petition requirement.

Conclusion

A K1 (and those admitted on K2) should seek the counsel of an immigration attorney before filling for adjustment of status after the end or breakdown of the marriage that is the basis of K1 status (or K2 status).

A K1 visa holder who got married to a US citizen within 90 days and who is concerned about their status should first realize that there are provisions in the law by which he or she can still adjust status. But he or she should consult an immigration attorney as soon as possible. Sharing your day-to-day experiences with family and trusted friends may also be helpful when you need witnesses to prove that even though the marriage ended it was real.

If you want to know how to get a fiancé visa or have issues with a fiance visa for the United States commonly called the k 1 fiance visa please give my law firm a call at 1-888-747-1108 or contact us through the Contact Us form

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Passing the Stokes interview and Stokes interview sample questions

If you fail to convince the immigration officer at your first marriage immigration interview that your marriage is in good faith, the USCIS may give you written notice of a marriage fraud interview known as a Stokes interview. A Stokes interview is a taped interview in which the USCIS separates you and your spouse and ask questions. The goal is to decide whether your marriage is in good faith and not solely for gaining an immigration benefit.

At the Stokes interview you and your spouse will be sworn in and questioned separately.  The examiner will compare your answers to the answers of your spouse and look for any discrepancies. If you give the same answers you will pass. If you don’t, you will be given an opportunity to explain any discrepancies.

As you and your spouse are under oath and the interview is taped it is very important that your answers be truthful. Giving false testimony under oath will not just result in denial of your green card but it is also a crime. You should not guess about what your spouse will say. If you do not know the answer or do not remember it is better to say so and not guess or make things us.

What to bring

It is important that the petitioner brings either a U.S. passport or a driver’s license and a social security card. You must bring the original documents  you brought to the first interview to the Stokes interview. Be sure to bring your passport, I-94 and social security card, if you have one. You should also bring any other documents to support the petition as the examiner should consider other evidence besides the interview. Examples are bank statements, lease agreements, rent receipts, mortgage agreements, health insurance policies, utility bills, tax returns and photos. You should also bring your last two pay stubs and statements and employment letters for both of you. The letters should be on company letter head signed by an official of the firms, stating when employment began, salary, dependents claimed and whom to notify in case of emergency.

Types of questions that may be asked

The Stokes interview is similar to the first green card marriage interview except that you and your spouse will be questioned separately. In the weeks before the interview you and your spouse should focus on communicating with each other and spending time together. Pay close attention to the minor details of your marriage.

Stokes interview - what is the color of your spouses toothbrush
Stokes interview - focus on the minor details of your marriage, e.g. the color of your spouse's toothbrush

 

Examples of the type of questions marriage immigration interview questions that may be asked at a Stokes interview are:

  1. How did you meet your spouse?
  2. When did you meet?
  3. How long did you know each other before you got married?
  4. Where did you go on your first date?
  5. Where did you and your spouse live before getting married?
  6. Who was at your wedding?
  7. Did you have a wedding reception?
  8. Describe the lay out of your apartment?
  9. How many TV’s do you have?
  10. What is the last movie you and your spouse saw together?
  11. Where did you go on your honeymoon?
  12. When was the last time you and your spouse were intimate?
  13. Where did you and your spouse first live together after marriage?
  14. What side of the bed do you sleep on?
  15. What brand of cigarette does you spouse smoke?
  16. What is the color of the wall in your bedroom?
  17. Do you have lamps in the bedroom?
  18. What did you have for dinner last night?
  19. What is your spouse’ favorite food and drink?
  20. At which restaurant did you last have a meal together?
  21. What is the color of your spouses tooth-brush?
  22. What is the color of the living room carpet?
  23. How many brothers and sisters does your spouse have?
  24. What are the names of your spouse’s parents?
  25. What did you give your spouse as a birthday gift last year?
  26. What is your spouse’s date of birth?
  27. Is your spouse left-handed or right-handed?
  28. Has your spouse met your mother?
  29. Do you pay the water bill separate from the rent?
  30. Did your spouse sleep at home last night?

You should listen carefully and only answer the questions that the interviewer directs to you personally. Do not answer any questions addressed to your spouse without first asking permission from the immigration officer. Remain calm and answer the questions truthfully. Do not argue with the examiner.

Finally, you have the right to bring an attorney and a translator with you to the interview. In fact you are strongly urged to bring an attorney to make sure that the questions asked are legally relevant to the process. An attorney will also be able to raise objections with the examiner and/or examiner’s supervisor after the interview. Remember it is your responsibility to make sure that you attorney shows up on time as the absence of an attorney by itself is not generally good cause to postpone an interview.

If you have a translator, the immigration officer will also swear in him or her to give exact translations. It is important that the translator translate each question and each answer sentence by sentence. The translator must not explain things or answer questions on your behalf. Before attending a Stokes interview you should consult an immigration attorney as failure to convince the immigration officers that your marriage is in good faith could result in removal proceedings before an immigration court.

If you and your spouse live together and have a bona fide marital relationship you should have no problem passing a properly conducted stokes interview. But consult an attorney. Leave nothing to chance.

I hope these

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K1 Visa Petition and supporting documents

What is the K1 Visa Petition and how is it different from the K1 Visa Application?

The petition is the first step in the k1 visa process. A U.S. citizen petitioner must first file a K1 visa petition for her foreign fiancé, the beneficiary, at a USCIS office in the United States. The petitioner must complete and sign form I-129F providing USCIS information about her including her criminal history, if any. She will also provide information about her foreign fiancé and his child (ren), if any. The petitioner must send I-129F petition and supporting documents to USCIS. If the petitioner has not yet met her foreign fiancé she should plan her trip or their meeting with the supporting evidence in mind and gather the proper evidence of the relationship.

If USCIS approves the K1 visa petition of the U.S. citizen the beneficiary can then apply for a K1 visa at a U.S. consulate where he lives.

K1 visa petition – photo of a couple’s second meeting

 

 

 

 

 

 

 

 

 

 

Documents for a persuasive K1 visa petition

  1. Evidence of Petitioner’s U.S. Citizenship – front and back of U.S. Birth Certificate, Certificate of Naturalization, Certificate of Citizenship or Consular Report of Birth Abroad, Form FS-240 or all pages of a valid unexpired U.S. Passport.
  2. Copy of evidence that the petitioner and fiancé have met in the past two (2) years.
  3. Relationship letter – how the relationship started and developed and the circumstances of your face to face meeting within the last two (2) years.
  4. Petitioner’s Letter of Intent to Marry“Dear Sir/Madam, I [petitioner’s name], state that I am legally able and willing to marry [beneficiary’s name] and intend to do so within 90 days of her (his) arrival in the United States. Yours truly, Signature, Print Name and Date.
  5. Beneficiary’s Letter of Intent to Marry“Dear Sir/Madam, I [beneficiary’s name], state that I am legally able and willing to marry [petitioner’s  name] and intend to do so within 90 days of my arrival in the United States. Yours truly, Signature, Print Name and Date.”
  6. Divorce decree if either petitioner or beneficiary had earlier marriages.
  7. Form G-325A and passport-style photograph for petitioner. Print name lightly on back of photograph.
  8. Form G-325A and passport-style photograph for beneficiary. Print name lightly on back of photograph.
  9. If the petitioner has ever been convicted any of any crimes specified in Form I-129F Part C she must give certified copies of court and police records showing the charge and disposition (e.g. sentence, community service, probation, dismissal).The petitioner must do this even if her records are sealed or she was told that she no longer has a record.
  10. Evidence of an ongoing relationship. These include
    1. Affidavits of persons with personal knowledge of the relationship (e.g. parents of the petitioner or beneficiary)
    2. Photographs (dated) showing the couple together that tells the story of their relationship using pictures.
    3. Correspondence between the parties – copies of e-mails, letters, telephone bills to prove an ongoing relationship
    4. Receipts for engagement ring or major gift between the parties. An engagement ring is not required but it maybe more persuasive to prove that the relationship is genuine and that the couple intends to marry.
    5. Receipt of money transfers to or from fiancé, if any
    6. Receipts for hotel stays in both names
    7. Flight itinerary to met or visit fiancé – circle the dates. They must show that a meeting occurred within the last two (2) years of the petition date.
    8. Copies of boarding passes (save these)
    9. Passport entry and exist stamps for the country where your fiancé lives
    10. Documentation of wedding plans (invitations and receipt for deposit on a reception hall)
    11. Adoption record, court order, adoption record as evidence of any name change or use of multiple names. An explanation letter may also be proper where the use of different names by the same party could be confusing.

A petitioner must send I-129F filing fees and exact photocopies of unaltered documents. Any documents containing a foreign language are to be accompanied by a full English translation which the translator has certified as complete and correct.

Notice of Action

The USCIS will create an “A” file for the foreign fiancé once they receive the petition. A first Notice of Action is sent to the U.S. citizen acknowledging receipt. Then USCIS will next send a second Notice of Action indicating that it has approved the petition.

Approved K1 Petition sent to the U.S. consulate where the  fiancé can apply for a K1 visa

USCIS will send the approved petition to the National Visa Center (NVC) for processing. The NVC will send it to the U.S. embassy or consulate where the fiancé will apply for a K-1 visa. An approved K1 visa petition is valid for four months from USCIS action. The k1 visa application by the fiancé can now begin.

If you want to know how to get a fiancé visa or have issues with a fiance visa for the United States commonly called the k 1 fiance visa please give my law firm a call at 1-888-747-1108 or contact us through the Contact Us form

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K1 Visa Process – For K1 Visa Applicants

A k-1 visa is a single entry visa that permits admission of the fiancé (e) of a U.S. citizen, as a non-immigrant for 90 days to marry that U.S. Citizen and apply for adjustment of status (a green card).  The minor unmarried children of the k1 beneficiary who go with or follow to join her are typically granted K2 visa status.

Wedding Bands

 

Approved Petition

Your K-1 process begins when your U.S. Citizen  fiancé(e) files Form I-129F on your behalf with the United States Citizenship and Immigration Service (USCIS) district office responsible for where he or she lives or intends to live (if U.S. citizen is abroad).

Notice of Action

Once your fiancé (e) has received a notice of action you should begin assembling the relevant documents to support your application as some documents may take much time to get.

Documentary Preparation

You should assemble the following documents in support of your application as some may take much time to get.

  1. Passport(s) valid for travel to the United States – for you and any dependent children accompanying or following to join you.
  2. Birth Certificate(s) – Obtain the original, certified copy of the birth record, or secondary evidence for each family member (yourself and all minor unmarried children) even if the children are not immigrating with you.
  3. Evidence of the end of earlier marriages – final divorce decree, annulment or death certificate.
  4. Police Certificates for each applicant aged 16 year and over. Obtain police certificates from the police authority where you live or any place where you have lived for 6 months since you have reached 16 years old.
  5. Proof of relationship to the petitioner – gather your letters, dated photographs showing you together as a couple, affidavits from people with person knowledge of the relationship, e-mails, telephone bills, documentation of wedding plans and invitations. Airline tickets, visa stamps and receipt for the engagement ring may also be used

You should give accompanying certified English translations of all documents not in English, or in the official language of the country in which application for a visa is made. The translation must include a statement signed by the translator that states that the:

(i)                 Translation is correct, and

(ii)               Translator is competent to translate.

Packet 3

Once the USCIS approves the petition it will then send it to the National Visa Center for forwarding to the proper consular post. Once the consulate receives the petition it will issue a letter to you stating that the consulate is ready to begin processing your k 1 visa application.

The Consulate will send you a set of document often called Packet 3 in order it to process your case. Sometimes the Consulate will not include the above forms. Rather it will send a letter with the applicant’s case number and a visa sheet with step by step instructions on how to go ahead. If this is the case the applicant can download the forms from the consulate website and return them to the Consulate. In Packet 3 should find:

  • K1 Visa Checklist Form IV-15
  • Form DS-230 Part I (Biographic Data) – You must complete and return this form immediately for the Consulate to process your case. Each person applying for a visa must complete biographic data Form DS-230- Part I, regardless of age. You may photocopy the form you received insufficient copies for each family member.
  • Form DS-156 in duplicate (non-immigrant visa application). If your unmarried children under 21 are accompanying you, two copies of Each Child must complete Form DS-156. Please do not sign this form. You must sign it in front of the consular officer on the day of your formal interview.
  • Form DS-156K in duplicate (Non-immigrant Fiancé (e) Visa Application). Please do not sign this form. You must sign it in front of the consular officer on the day of your formal interview.
  • Form DS-157 in duplicate (Supplemental Non-Immigrant Visa Application) – only required for men aged 16-45
  • Information sheet DS-2000 (Lists evidence which you or your fiancé (e) may present to meet the public charge provision of the law). Your fiancé (e) may file Form I-134 with supporting documentation.
  • Sometimes the Consulate will send information about scheduling a Medical Examination at this time.

Complete and send back the following forms to the Consulate:

  • Form DS-230-I (Part I only) for each person applying for a visa, regardless of age
  • Leave unsigned Forms DS-156
  • Leave unsigned Forms DS-156K
  • Form DS-157 (if applicable)
  • Form IV-15 -if required documents are already prepared.

If not already done so, assemble the relevant documents required in support of your application, and mark the documents off on Form IV-15 as you collect them. Do not send these documents to the Consulate.

Sign and date Form IV-15 and forward to the Consulate.

Packet 4

Upon receipt of the above documents, the Consulate will continue any extra processing and tell you about the scheduling of the medical interview and the appointment for the formal visa interview.

Schedule and have the Medical Examination. Arrange for a medical examination with one of the physicians listed on the attached visa instruction. You are responsible for the cost of the examination. A medical examination is also required for each child who will go with you.

Photographs – take Two (2) 2 x 2 Photographs for each applicant according to the specifications on the visa instruction sheet.

Attend scheduled interview with all your unmarried children under 21. Bring supporting documents such as evidence of your relationship to your U.S. citizen fiancé (e), two photographs for each applicant, birth certificates and final divorce decree if any to the k1 visa interview.

If approved, the Consulate may need you to pick up the passport with the visa from the Consulate later.

Sealed Packet – Do Not Open

Consular Officer will give you your passport(s) containing the K-1 visa (K-2) and a sealed packet containing the civil documents you provided, plus other documents prepared by the U.S. Consulate. It is important that you do not open the sealed packet. Only the DHS immigration official should open this packet when you enter the United States.

K1 Visa Validity

Do not finish arrangements for travel to the United States, dispose of properties, or quit your job until the consulate delivers the passport(s) with the k 1/k2 visas to you. A k1 visa is generally valid for six months. You must travel and apply for admission to the United States within that six month window.

After admission on your k1 visa you have 90 days to get married to your U.S. citizen  fiancé (e) or leave the United States. The DHS will issue an entry document (Form I-94) to you (the  k1 fiancé(e)) valid for 90 days. If you marry within 90 days, you can can apply to adjust your status to that of a lawful permanent resident (green card holder) through the filing of a Form I-485.

Gary Goodin, Immigration Attorney

Copyright © 2011, the Immigration NavigatorTM

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What is a K1 VISA?

What is a K1 VISA?

A K1 visa is a non-immigrant visa designed to speed up the immigration to the US of the fiancé (e) of a U.S. Citizen and his or her unmarried children under 21 years of age. The K1 visa is different from the K3 visa which is a non-immigrant visa designed to expedite the immigration of the spouse of a U.S. Citizen and his or her unmarried children under 21 years of age.

K1 visa status permits the fiancé (e), the K1 visa beneficiary, to enter the US for a period of 90 days to marry the US Citizen Petitioner and apply to adjust status to permanent residence (green card status).

K1 Visa - Marriage engagement

K1 visa requirements

The K1 visa process starts with a Form I-129F visa petition executed by the US Citizen. The US Citizen Petitioner must file an I-129F with the designated USCIS facility showing that;

– The US Citizen and fiancé(e) must have met within the previous 2 years

-You have a bona fide intent to be married

-You are legally able and willing to conclude a valid marriage in the United States within 90 days of the fiancé (e) arrival.

The Petition should be accompanied by proof of US Citizenship, certified copies of all court and police records if the petitioner has been convicted of certain crimes (e.g. child abuse, sexual assault), the marital history of the fiancé(e) and other documentation. A petitioner who is not in the United States may execute the petition before a United States consular or immigration officer for forwarding to the Stateside Service office having jurisdiction for adjudication.

Attorney Gary D. Goodin, for Immigration Navigator

Copyright © 2011, the Immigration Navigator

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