Removing conditions on permanent residence when the U.S. petitioner dies

For those who receive a green card through a marriage that is less than two years old on the date the green card is received, Section 216 (d) (2) of the Immigration and Nationality Act provides that a conditional permanent resident must file a joint petition to remove conditions on residence I-751 within 90-day period before the second anniversary of receipt of conditional resident status – count back 90 days from the second anniversary of the Permanent Resident Card. Waiting until the last few days to send the I-751 petition with supporting evidence is a bad idea. It should get to the USCIS before the conditional green card expires. It is always a good idea to have proof of delivery.

One of the most common questions asked by those who get a green card by a marriage that is less than two years old is, “how and when do I remove the conditions on my green card?” Sometimes the U.S. spouse may be unwilling to file a joint petition and there may be issues of domestic abuse. In a few cases however the U.S. spouse may have died after the beneficiary spouse obtained conditional permanent residence but before the two year anniversary of obtaining conditional permanent residence[1]

For those who receive a green card through a marriage that is less than two years old on the date the green card is received, Section 216 (d) (2) of the Immigration and Nationality Act provides that a conditional permanent resident must file a joint petition to remove conditions on residence I-751 within 90-day period before the second anniversary of receipt of conditional resident status – count back 90 days from the second anniversary of the Permanent Resident Card. Waiting until the last few days to send the I-751 petition with supporting evidence is a bad idea. It should get to the USCIS before the conditional green card expires. It is always a good idea to have proof of delivery.

A son or daughter of the foreign spouse who achieves conditional residence within 90 days of the principal beneficiary (the foreign spouse) may be included on the same I-751 form even though such a combined petition attracts a separate biometric fee for each son or daughter regardless of age. Otherwise the son or daughter must file a separate petition.

The permanent resident status of a conditional permanent resident who fails to file the I-751 on time, will end, unless the person can show good cause that excuses a late filing. Such a person will also begin to accumulate unlawful presence which can lead to 3 or 10 year bars from the United States, if they leave.

Section 216 (c)(1) further has two requirements for removal of the condition – a jointly filed petition and an in person I-751 interview. The service can waive an I-751 interview if it is satisfied of the bona fides of the marriage based on the petition and supporting evidence. But the USCIS sometimes conducts random interviews of joint petitioners or waiver requesters.The service is more likely to waive a joint interview if the case is well-documented but may still need an interview if verification of the information through its fraud unit turns up derogatory information.

For a person who cannot file jointly because of reasons other than death of the petitioning spouse (e.g. I-751 divorce), Section 216 (c) (4) of the immigration and Nationality Act provide for hardship waivers of the joint filing and interview requirements under certain conditions. For such hardship waivers the CPR must submit a letter with the I-751 petition.

But when the petitioning spouse dies during the 2-year conditional period the law does not require a joint petition and interview and no separate I-751 waiver is required other than that requested on form I-751. Therefore the conditional resident petitioner should select (c) in Part 2 of the I-751 form and provide documentary evidence of the death as supporting evidence. The death of the petitioning spouse does not, however relieve the I-751 petitioner from the burden to prove that the marriage which ended in death was in good faith and was not entered into solely for evading the immigration laws.

A conditional permanent resident under section 216(a) of the Immigration and Nationality Act, who is seeking to remove the conditional basis of that status and who has timely filed the petition and appeared for the interview required under section 216(c)(1), does not need a separate section 216(c)(4) hardship waiver if the petitioning spouse died during the 2-year conditional period.

Approval

If satisfied that the marriage was not for the purpose of evading the immigration laws, USCIS may approve the petition without an interview. If the USCIS approves the petition it will remove the condition on permanent residence as of the second anniversary of receipt of conditional permanent resident status and issue a new Permanent Resident card through the mail.

RFEs, or requests for more evidence

Where the initial filing is deficient the USCIS may issue a request for more information or evidence or RFE. Failure to respond would lead to a denial due to abandonment.

If the RFE is not properly responded to the USCIS may schedule an interview. If the conditional resident alien fails to appear for an interview about the petition the alien’s permanent residence status will be automatically terminated as of the second anniversary of the date on which the alien obtained permanent residence[2].

Denial

If USCIS intends to deny the petition it will provide a Notice of Intent to Deny stating any reasons for so intending. The petitioner may then send rebuttal evidence which USCIS must consider. If the petition is ultimately denied the alien’s permanent resident status will end as of the date of the written denial.

Review of denial

A person whose i-751 petition was denied can

1. request the USCIS to certify the case to the Administrative Appeals Unit[3]

2. file a motion to reopen the case based on new facts, or a motion to reconsider the case citing valid reasons[4], or

3. seek review of the decision in removal proceedings. In such proceedings ICE must prove by a preponderance of the evidence that the petition was properly terminated [5]. But the petitioner bears the burden of proving eligibility for the petition or waiver of the joint filing requirement. He or she must be prepared to submit evidence of a good faith marriage and the death of the U.S. spouse.

[1] This situation is different from a case where a foreign national obtained permanent residence based on being the widow(er) of a US citizen. In such a case, the widow(er) spouse should not file I-751.

[2] 8 C.F.R. 216.4

[3] 8 C.F.R. 103.4 (a) 4,5

[4] 8 C.F.R. 103.5

[5] 8 C.F.R. 216.3, 1216.3

Share This Post

A discussion of the frightening Notice to Appear

Removal proceedings are one of the most serious consequences that an alien can face. This is especially so for an alien who has lived continuously in the United States for a long time such as more than 10 years. It is also a frightening experience for their United States family who are citizens or permanent residents. United States parents, spouse or children may also suffer extreme and unusual hardship if an alien is deported.

What is a notice to appear?

The issue of a notice to appear (NTA) is notice to a person that removal proceedings has began against him or her. But removal proceedings begin when the notice to appear is filed in an immigration court (8 C.F.R. 1003.14). A notice to appear form I-862 is a charging document containing allegations against a person in removal or deportation proceedings. It alleges that the person is not a United States citizen, states the grounds under which the person is removable, and the specific law that supports removal.

The notice to appear may also state the date, place and time of the immigration court hearing for the person to appear before an immigration judge. However the notice of hearing may be sent in a separate letter.

It is very important that any person who has received a notice to appear tell the immigration court in writing of any change of address within 5 days of any such change so that they may receive notices from the court. Otherwise an immigration court judge may issue what is known as an in absentia order. If a judge makes an in absentia order against a foreign national it can be used by ICE to rapidly remove the foreign national from the United States without the benefit of a hearing.  Avoid an in absentia order by showing up on time for court and notifying the court of any change of address.

The NTA also tells the foreign national of his or her right to an immigration attorney for representation or to answer any legal questions.

Not everyone who receives an NTA is arrested. But a person who is arrested by immigration must be issued an extra Form I-826 Notice of Rights and Request for Disposition. If you wish to stay in the United States to pursue your rights and apply for relief, you must not allow anyone to talk you into agreeing to the allegations and accepting voluntary departure. Preserve your right to a hearing before an Immigration Judge – tick the option to ask to have a hearing before an immigration judge.

Will I be put on a plane and physically removed from the United States when I appear at the immigration court?

No. This is often cited by some persons for their failure to appear at immigration court. The law does not allow a person coming to immigration court to protect his or her rights to be deported. The deportation process must be completed. Furthermore you have a right to an appeal to the BIA or to federal courts. One of the most important things to realize is that deportation is a process and it typically takes many months depending on how crowded an immigration court docket is. With appeals, the process can sometimes take years.

Do I need a lawyer?

Yes you do. Removal proceedings are one of the most serious consequences that an alien can face. This is especially so for an alien who has lived continuously in the United States for a long time such as more than 10 years. It is also a frightening experience for their United States family who are citizens or permanent residents. United States parents, spouse or children may also suffer extreme and unusual hardship from removal of their alien relatives. A person without an attorney may not have his legal rights protected. You can be assured that the government will have its attorneys working to get you deported. So lawyer up and protect your rights!

A lawyer will also help you to find the type of relief for which you are eligible and gather the right evidence (e.g. affidavits, court records etc.) necessary to support your defense and application for discretionary relief that will allow you to remain in the United States.

Conclusion – Pursue your legal rights before an Immigration Judge

The removal process can take years: removal does not happen overnight. Furthermore there are many defenses and relief from removal (e.g. cancellation of removal, withholding of removal, adjustment of status, asylum, registry etc) that may be available depending on the facts of your case. Seek legal counsel to know and protect your rights.

Share This Post

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).

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

Share This Post

Naturalization denied – break in continuous residence by prolonged absence from the United States

Before you make an application for citizenship consider whether prolonged absence from the United States could cause your naturalization petition N-400 to be denied or delayed because of a break in continuous residence.

Before you make an application for citizenship consider whether prolonged absence from the United States could cause your naturalization petition N-400 to be denied or delayed because of a break in continuous residence.

To become a naturalized United States citizen one of the set of requirements that a lawful permanent resident must meet is continuous residence in the United States.

What are the continuous residence requirements?

The continuous residence requirements for a lawful permanent resident to become a naturalized US citizen are –

  1. At least five (5) years of continuous residence immediately before the date of filing of his petition for naturalization (three (3) years in the case of qualified spouses of U.S. citizens), including physical presence in the United States for at least one half of the five-year (or three (3) years for qualified spouse of U.S. citizens).
  2. At least three months of continuous residence in the state or district in which she will file her naturalization petition, immediately before filing, including physical presence for at least one half of the period of continuous residence in the state or district of filing, and
  3.  Continuous residence within the United States from the date of the petition up to the time of admission as a citizen [1].

A person is not yet eligible for naturalization if there is a break or disruption in continuity of residence [2].

The purpose of the residency requirement

Since as far back as 1790 the US immigration laws have made residence within the United States after entry a requirement for naturalization as an American citizen.

The Second Circuit Court of Appeals has described the continuous residency requirement as a proving ground on which the alien’s good moral character and attachment to the principles of the U.S. constitution are tested [3].

The purpose of the continuous residence requirements has been to set up a period of probation during which applicants can learn the language; familiarize themselves with U.S. customs and institutions; shed foreign attachments; acquire attachment to the principles of the U.S Constitution and government; show their ability to conduct themselves as law-abiding citizens; and generally prove their fitness to be accepted as U.S. citizens [4].

Residence defined

The INA defines residence as “the place of general abode” and “the place of general abode” of a person as his or her principal, actual dwelling place in fact, without regard to intent. So therefore residence is where a person actually lives whether it was his intention to make it his residence or not [5]. For this reason (and for the issue of abandonment, not discussed here), a lawful permanent resident should seek legal advice before going abroad for anything more than a brief and casual visit.

Breaking continuous residence

Under current immigration regulations [6] absence for a continuous period of between six months and a year during the period for which continuous residence is required create a presumption of a break or disruption in the continuous residence. The naturalization petitioner has the burden to present evidence (discussed below) to rebut the presumption. If the petitioner presents satisfactory evidence he or she has continuous residence despite absence of 6 months to one year from the United States. With limited exceptions involving work overseas for the United States government and US government contractors, if the petitioner for naturalization has been continuously absent from the United States in excess of one year during the period for which continuous residence is required, then there is a break in continuous residence as a matter of law.

Overcoming presumption of a break in continuous residence for applicant’s absence for between 6 months and one year.

To rebut a presumption of a break in continuous residence because of a prolonged absence from the United States for between 6 months and one year, a petitioner can submit documentary evidence showing that during the absence:

(A) She did not stop her employment in the United States;

(B) Her immediate family remained in the United States;

(C) She retained full access to his or her United States home; or

(D) She did not obtain employment while abroad.

________________________________________

[1] See, Abdul-Khalek v. Jenifer, 890 F. Supp. 666 (E.D. Mich. 1995)

[2] Id.

[3] United States v. Camean, 174 F.2d 151, 153 (2d Cir. 1949)

[4] United States v. Camean, 174 F.2d 151 (2d Cir. 1949); United States v. Mulvey, 232 F. 513 (2d Cir. 1916); In re Vasicek, 271 F. 326, 329 (E.D. Mo. 1921); In re Di Giovine, 242 F. 741 (W.D.N.Y. 1917) .

[5] 8 USCS § 1101(a) (33).

[6] 8 CFR 316.5(c).

 

Share This Post

Often asked questions about affidavit of support form I-864

Do not let confusion over the affidavit of support requirement delay you bringing your spouse or family members to the United States or cause the consular officer to deny your family members their immigrant visas. Here are some often asked questions and their answers.

Q. What is an affidavit?

A. An affidavit is a statement that is either sworn to before someone authorized to administer oaths such as a notary public (e.g. an affidavit of marriage) or signed under penalty of perjury (e.g. an affidavit of support form I-864.)

Q. What is an affidavit of support for an immigrant?

A. It is a legally enforceable promise by the sponsor to show that the intended immigrant has adequate means of financial support and is unlikely to become a financial burden to the United States (A Public Charge). The sponsor also promises to reimburse any federal or state agency that provide certain means tested benefits to the sponsored immigrant and to inform the United States Citizenship and Immigration Services (USCIS) of any change of address (Form I-865) within 30 days of the change while the agreement is still in force.

The law requires an affidavit of support in most family based immigrant and some employment based immigrant cases. The petitioner must either submit an affidavit of support on Form I-864 or Form I-864EZ. Certain classes of immigrants who are exempt from the affidavit of support requirement (e.g. self-petitioning battered spouse or child of US citizen) must still submit Form I-864W, Intending Immigrant’s Affidavit of Support Exemption along with their application for an immigrant visa or for adjustment of status.

Even if an applicant has a valid affidavit of support, consular officers may still consider the applicant’s age, financial status, health, education and skills, and family status in determining whether the applicant is likely to become a public charge.

Do not let confusion over the affidavit of support requirement delay you bringing your spouse or family members to the United States or cause the consular officer to deny your family members their immigrant visas. Here are some often asked questions and their answers.

Q. What is an affidavit?

A. An affidavit is a statement that is either sworn to before someone authorized to administer oaths such as a notary public (e.g. an affidavit of marriage) or signed under penalty of perjury (e.g. an affidavit of support form I-864.)

Q. What is an affidavit of support for an immigrant?

A. It is a legally enforceable promise by the sponsor to show that the intended immigrant has adequate means of financial support and is unlikely to become a financial burden to the United States (A Public Charge). The sponsor also promises to reimburse any federal or state agency that provide certain means tested benefits to the sponsored immigrant and to inform the United States Citizenship and Immigration Services (USCIS) of any change of address (Form I-865) within 30 days of the change while the agreement is still in force.

The law requires an affidavit of support in most family based immigrant and some employment based immigrant cases. The petitioner must either submit an affidavit of support on Form I-864 or Form I-864EZ. Certain classes of immigrants who are exempt from the affidavit of support requirement (e.g. self-petitioning battered spouse or child of US citizen) must still submit Form I-864W, Intending Immigrant’s Affidavit of Support Exemption along with their application for an immigrant visa or for adjustment of status.

Even if an applicant has a valid affidavit of support, consular officers may still consider the applicant’s age, financial status, health, education and skills, and family status in determining whether the applicant is likely to become a public charge.

Q. When must the affidavit of support be filed?

A.  It is filed as part of the Adjustment of Status Application package. But if processing at a US consulate the National Visa Center (NVC) will send an Affidavit of Support processing fee invoice and payment instructions to the petitioner. After the petitioner has paid the fee and obtained a receipt he or she will get the proper instructions about completing the Affidavit of Support forms. He or she must be sure to complete the form properly and send tax returns and other supporting documents such as a job letter on company letterhead stating his or her income to the NVC with the applicants name and NVC case number at the upper right hand corner of each document.

Q. Who is eligible to be a sponsor?

A. A sponsor on an affidavit of support must satisfy all the following three requirements;

  1. A U.S. citizen, national or LPR;
  2. At least 18 years old; and
  3. Domiciled within the United States or in any U.S. territory or possession.

Q. Does the sponsor have to be employed?

A. No. The sponsor has other options besides income to show adequate financial support for the sponsored immigrant if his income falls short of the minimum requirement for his family size. He may show adequate assets, usually between 3 and 5 times the shortfall. The sponsor can also count the assets and income of household members (Form I-864A) to prove adequate support for the intended immigrants or seek a joint sponsor with the required minimum income as a last resort. If the intended immigrant has significant assets (e.g. real estate, stock, bonds) which are available, then this may also be counted.  Therefore a retired or temporarily unemployed person can still be a sponsor though current use of welfare benefits is a negative factor.

Q. If the household members join their income and assets, because the petitioner does not have enough income, must the household members file a change of address form with USCIS?

A. No. Only sponsors must inform the USCIS of a change of address. Household members who execute Forms I-864A, Contract Between Sponsor and Household Member have no obligation to inform USCIS when they change address.

Q. How does income does my sponsor have to show and how does she prove income?

A. The key is using the federal poverty income guidelines Form I-864P to find the minimum income requirement for the family size unit of the sponsor. The sponsor must be able to show the minimum income for his or her family unit size. While a bigger family unit size increases the minimum income requirement it does allow the sponsor to include more household member’s income.

The minimum income requirement is 125 percent of the federal poverty guideline for a given family unit size. But if, the petitioner is actively serving in the US armed forces, the minimum income requirement is 100 percent. The sponsor should verify his or her income with certified copies of federal tax returns for three earlier years. Additionally notarized copies of employment letters should also be used.

Q. How do I determine family unit size for my case?

A. The family unit size includes the following persons even if they do not live at the same residence (count each person once[1])

  1. The sponsor
  2. The sponsor’s spouse
  3. The sponsor’s unmarried children under 21 unless they are emancipated
  4. Any person  claimed by the sponsor as a dependent for tax purposes on the most recent tax return
  5. The number of aliens the sponsor has sponsored under past Forms I-864 for whom the sponsor’s support obligation has not terminated
  6. Any of the sponsor’s spouse, child, adult son or daughter, parent or sibling residing with the sponsor if including their income would be helpful, and
  7. The sponsored immigrant and all accompanying derivative family members (spouse or dependent children of sponsored immigrant) under current Form I-864, even if such persons do not or will not have the same principal residence as the sponsor.

Q. Must the co-sponsor be a relative?

A. No. But a relative should be used where possible.

Q. Can the income of joint sponsors be joined together to satisfy the minimum income requirement?
A. No. Each joint sponsor must satisfy the income requirement on her own or combine assets/income with the intended immigrant or with members of her household.
I hope this helps you to comply with the affidavit of support form requirement.

Share This Post

K1 Visa Petition and supporting documents

The petition is the first step in the k1 visa process before the foreign fiancé applies for a k1 visa at a United States consulate. A U.S. citizen petitioner must first file a K1 visa petition for her foreign fiancé, the beneficiary. The petitioner will 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 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.

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

Share This Post

K1 Visa Process – For K1 Visa Applicants

Once the USCIS approves the k1 visa 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.

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

Share This Post

How to Register a Change of Address for Foreign Nationals

With limited exception non-US Citizens including lawful permanent residents (green card holders) must notify the Department of Homeland Security of their change of address within 10 days of moving. This requirement has been more enforced since September 11, 2001. The failure to register a change of address is punishable by a fine, imprisonment or removal from the United States.

USCIS Change of Address

With limited exception non-US Citizens including lawful permanent residents (green card holders) must let the Department of Homeland Security know of their change of address within 10 days of moving. This need has been more enforced since September 11, 2001. The failure to register a change of address is punishable by a fine, imprisonment or removal from the United States.

Change of Address

 

 AR-11/AR-11SR

  • The AR-11 form is a general change of address form that changes your address within the master database of USCIS an agency of the Department of Homeland Security. You can change your address manually using a printed Form AR-11 or you can do it online using the electronic AR-11. However completing this legal requirements and submitting the necessary AR-11 forms does not update an address on any applications or petitions pending before the U.S. Citizenship and Immigration Services (USCIS).
  • Individuals affected by special registration must complete AR-11SR, Alien’s Change of Address Card. Form AR-11 SR can only be mailed and cannot be filed online.

 Application or petition pending before USCIS

If there is an application or petition pending for you before the USCIS, in addition to filing form AR-11, you must let the USCIS know of your change of address according to the instructions contained on the Notice of Action form. You should give them a copy of your receipt notice, your USCIS A#, your old address and your new address.

Appeal Pending before an Immigration Judge (IJ)

In addition to filling Form AR-11 with USCIS, if you have a case pending with before an Immigration Court, you must let the Immigration Court know within 5 working days of your move by completing Form EOIR 33/IJ for the court in your particular state. Form EOIR-33/IJ is available on the Department of Justice website. Giving notice to the court Form EOIR-33/IJ is not the same as giving notice to the Department of Homeland Security, DHS. The foreign nation with a pending case before an immigration court should also give separate notice to the DHS using form AR-11. 

Appeal Pending before the Board of Immigration Appeals (BIA)

If you there is an appeal pending for you with the Board of Immigration Appeals (BIA), in addition to filing Form AR-11 with USCIS, you must let  the BIA know within 5 working days of your move by completing Form EOIR 33/BIA. You cannot let the BIA know of a change of address electronically. Form EOIR 33/BIA is available on the Department of Justice website. Giving notice to the BIA on Form EOIR-33/BIA is not the same as giving notice to the Department of Homeland Security, DHS. The foreign nation with a pending case before the BIA should also give separate notice to the DHS using form AR-11.

 If you have any questions about change of address or a failure to register change of address (an immigration violation) please consult an immigration attorney of your choice.

 

Share This Post

What if I can’t make it to a scheduled USCIS interview?

With limited exceptions, failure to appear for a scheduled interview can result in the denial of the related application or petition for abandonment. An unintended failure to appear for an interview may result when the notice of scheduled interview is sent to the wrong address because of USCIS processing errors for a timely filed change of address form AR-11. It can also result by an alien’s failure to file a timely change of address while an application or petition is pending.

An applicant, a petitioner, a sponsor, a beneficiary, or other individual residing in the United States at the time of filing an application or petition may be required to appear for an interview. With limited exceptions, failure to appear for a scheduled interview can result in the denial of the related application or petition for abandonment.

An unintended failure to appear for an interview may result when the notice of scheduled interview is sent to the wrong address because of USCIS processing errors for a timely filed change of address form AR-11. It can also result by an alien’s failure to file a timely change of address while an application or petition is pending.

An immigration interview is conducted because it is required by statute, regulations, agency policy or because there is a question of material fact that the adjudicator cannot resolve without an interview. Any interview may be required to determine the applicant’s or beneficiary’s credibility. Interviews are not scheduled if not required or if a material fact can be determined by other means. They are intended to be investigative and non- adversarial (as opposed to, say, a court proceeding involving two attorneys, each representing a particular side before a judge).

A scheduled interview (or fingerprinting) can be rescheduled if prior to the date and time of the interview an applicant or petitioner requests a rescheduled interview and show good cause. The applicant or petitioner should follow the instructions on the interview notice. The request may be made by mail, fax or telephone (in emergencies). The applicant or petitioner or his representative must show why he is unable to appear at the scheduled date and time because of circumstances beyond his control. The adjudicator will use her discretion to determine whether good cause exists for rescheduling the interview (or fingerprinting). If the adjudicator determines that good cause exists, the adjudicator will reschedule the interview and mail a new interview notice. The adjudicator is also required to reschedule an interview if a logged change of address notification is confirmed for the interviewees so that the interviewees may not have obtained notice of the interview.

 

Share This Post

B2 visa extension of stay

I came to the US from Jamaica on a visitor visa to spend some time with my daughter and see my grandchildren. Three months ago month my daughter slipped on ice and broke her leg and now she relies on me to move around and accompany her when she goes out. The doctor treating my daughter said her leg will take two more months to heal but only one month remains on my I-94 form.

How do I extend my stay in the United States?

To maintain your non immigrant status you must file an application for extension of stay before your current period of authorized stay, on your I-94, expires. It is important that you file immediately. If you fail to apply for an extension before your current authorized stay expires, in the future you could be denied readmission into the United States or a green card.

The application process to extend your stay depends on the type of non-immigrant status that you have. In your case because you have B2 non-immigrant status you must use USCIS Form I-539 with the required fee and supporting evidence. The application must be made to the USCIS service center with jurisdiction for your area.

Required documentation

Original or Photocopy (front and back) of your I-94 Arrival-Departure document. If your I-94 is lost you must file and submit USCIS Form I-102 with the appropriate fee together with Form I-539.
Photocopy of your passport showing that it is valid for the period of your intended stay.
Written statement/letter

You must also submit a written statement explaining in detail;

The reason for the extension,
Departure arrangements, and
Any effect the extension would have on your permanent residence and employment in Jamaica.

I came to the US from Jamaica on a visitor visa to spend some time with my daughter and see my grandchildren. Three months ago month my daughter slipped on ice and broke her leg and now she relies on me to move around and go with her when she goes out. The doctor treating my daughter said her leg will take two more months to heal but only one month remains on my I-94 form.

How do I extend my stay in the United States?

To keep your non immigrant status you must file an application for extension of stay before your current period of authorized stay, on your I-94, expires. It is important that you file immediately.

The application process to extend your stay depends on the type of non-immigrant status that you have. In your case because you have B2 non-immigrant status you must use USCIS Form I-539 with the required fee and supporting evidence. You should direct the application to the USCIS service center with jurisdiction for your area.

Required documentation

  1. Original or Photocopy (front and back) of your I-94 Arrival-Departure document. If your I-94 is lost you must file and send USCIS Form I-102 with the proper fee together with Form I-539.
  2. Photocopy of your passport showing that it is valid for the period of your intended stay.

Written statement/letter

You must also send a written statement explaining in detail;

  1. The reason for the extension,
  2. Departure arrangements, and
  3. Any effect the extension would have on your permanent residence and employment in Jamaica.

Supporting evidence

A signed affidavit from your daughter explaining why you are seeking to delay your departure would be persuasive. Your daughter should also get a letter written by a recognized, licensed health care practitioner treating her. The practitioner should write the letter on his or her own professional letterhead stationery and it should state the specific (explained) medical condition that has caused you to seek an extension to spend more time with your daughter and grandchildren.The letter should also specify the dates involved in your daughter’s injury and that the practitioner expects the medical condition to end at a specified time.

You should also send a copy of your return ticket to Jamaica showing the date of your intended departure. You should show that you have funds to support yourself for the period of the intended stay in the U.S. If you have a job in Jamaica you should send a letter from your employer temporarily excusing you from work for the extra time you will spend in the United States.

What if authorized stay has expired?

The USCIS may exercise discretion to excuse your failure to apply before the end of your authorized when;

1.the delay was due to extraordinary circumstances beyond your control

2. the delay is right for the circumstances

3. you have not violated your non-immigrant status in other ways (e.g. unauthorized work)

4. you are still a good faith visitor to the United States, and

5. you are not in deportation or removal.

Processing time and effect of prompt application

The processing time for I-539 applications can take up to 3 -4 months. The time in which your application is pending will continue your authorized stay in the United States. The current filing fee for a Form I-539 application is available here. If USCIS approves your extension of stay application it will do so in six month increments.

Online Resources

B Visa Refusal Rates by Country

 

Share This Post