Applying for a Visa, Fiance Visa, Green Cards

Comparing and Contrasting the Fiance Visa, the Spousal Immigration Visa and the K-3 visa

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There are three legal immigration options for a person, living abroad, who is engaged to a U.S. citizen.   If the person, living abroad, is married to a U.S. citizen, there are two legal options.  The two legal options are the spousal visa consular process or the K-3 process.  The fiancé, contemplating marriage, has the option of using the fiancé visa process or getting married and choosing one of the other two options that I just listed as being available to a married person.  All three of these options have been discussed in posts during the last couple of months.  For both the fiancé and the spouse, there is the option of entering as a tourist (and getting married if you are a fiancé) and applying for adjustment of status.  However, I do not recommend this route because it is illegal.  I discussed this option three weeks ago.

All three options have benefits and drawbacks.   The main drawback for the fiancé and K-3 routes is that they cost about $1,000 more in filing fees and costs.   The attorney fees are usually more too, because they are more complicated.  The main drawback for the spousal visa consular process is that it is slower — usually at least two or three months slower.

The main benefit for the fiancé route is that it usually is quicker in getting the fiancé to the U.S..   It is usually at least two to three months quicker.   More importantly, when a client is talking to me, and they are engaged, they can file right away.   If they decide to wait until they are married, and file the spousal visa consular process, not only is that route slower, they can’t start it until they are married, which could add another two or three months to the time differential.

There are two main drawbacks with the fiancé petition route.  As mentioned above, the entire process is at least $1,000 more expensive in costs and filing fees (without counting additional attorney fees).   The other drawback is that while the fiancé gets to the U.S. more quickly, she doesn’t get her green card at that point.  Once she gets married, she can file for Adjustment of Status to get her green card, but that process could take another year or more.   She can stay here in the U.S. legally while that process runs its course.   She will most likely be able to work during most of that time (she will need to file for employment authorization), and she will be able to get travel permission eventually, but it is still an expensive and long wait for the green card.

The K-3 process is very similar to the fiancé process.  It is more expensive but quicker than the spousal visa consular process, and, once in the U.S. the alien spouse will need to file for Adjustment of Status.  The other difference in the K-3 process is that the Department of State, fo some reason, does not like this process.  As stated in a recent post, the Department of Stats will often refuse to do the K-3 process and instead require the applicant to go through the regular spousal visa consular process.

The spousal visa consular process has the benefit of being simpler and cheaper and, once the foreign spouse has arrived in the US, she immediately receives her Lawful Permanent Resident status and can almost immediately start to work and travel.  The drawback is that it is slower.   I have been telling people to expect a ten to sixteen month process, and it may currently be taking longer.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Adjustment of Status, Applying for a Visa, Fiance Visa, Green Cards

The Fiance Visa Process

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The Finace Visa process is a way that that Congress set up to facilitate the immigration of fiances of U.S. citizens.    This is only for people who are engaged to be married and intend to be married and who will not marry until the foreign fiancé has arrived in the US.  Once the foreign fiance arrives in the United States, they must get married within 90 days.  I know of people, thinking to help their case along, who got married while they were waiting for the visa to come, and as a result had to start all over with a spousal visa — which causes a major delay.

As I stated above, the fiancé visa is only for fiances of U.S. citizens.  A green card holder cannot use this route to bring a fiancé to the US.  Both parties have to be unmarried from the start of the process (i.e., someone can’t file this if they are still married and waiting a divorce).   They have to remain unmarried until the fiancé visa is processed, the foreign fiancé has had her interview, received her visa and has entered the U.S.   They then absolutely need to get married within 90 days of arrival in the U.S.

Another requirement for the visa is that you need to establish that you have met in person within the two years immediately preceding the filing of the visa petition.   They will not accept pictures alone as proof of this meeting.  They want additional evidence like passport stamps or flight itineraries.

The process is started when the U.S. Citizen fiancé files a fiancé petition with the USCIS requesting the approval of a fiancé visa.  The USCIS processes the petition and upon approval, sends it to the Department of State.  That first step usually takes between three and six months, but it can take longer.   Once the Department of State gets the petition, they send it to the appropriate consulate or embassy.

Once the consulate receives the petition, they notify the applicant that it is time for them to start gathering the relevant evidence — birth and police certificates and proof of financial sponsorship and relationship evidence and a medical examination.  At this point, the foreign fiancé also pays the fiancé visa application fee.  Once they have all this completed, the applicant notifies the consulate and schedules an appointment.   This process usually goes quite quickly.

At the interview, the fiancé will be examined mostly regarding her relationship with the US fiancé, although they may look at other issues as well.   I had one fiancé applicant, long ago, who listened to the other people in the waiting room and told the examiner that she was going to get together with her fiancé to see if she wanted to marry him.   The examiner rejected her because she needs to intend to get married in order to get this visa.

Once the visa is issued, the fiancé has six months to enter the U.S.   Then, as stated above, they need to get married within 90 days.  And then the challenging part of the process begins.

Up to this point, the foreign fiancé only has a K (fiancé) visa.   She does not yet have a green card.   Once she is married, she then files an application for adjustment of status to apply for the green card.   Two weeks ago I wrote about the process for filing for adjustment of status.  I won’t repeat that here.  It is all the same except that you do not need to file a spousal immigrant petition — the approved fiancé petition takes the place of the spousal immigrant petition.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Adjustment of Status, Green Cards

Requirements for qualifying for Adjustment of Status.

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I have been writing about Adjustment of Status.  That is the process which allows you to file for a green card and stay here in the U.S. while you are waiting for it to be processed.  There are a number of requirements.  I want to only touch on a few of them.

The first is that you need to have entered the US legally.   A person who sneaked across the border and then marries a US citizen cannot file for Adjustment of Status.  For most people, you have to be in the U.S. legally in a non-immigrant status.   One exception is for immediate relatives of U.S. citizens — spouses, parents, and children under 21.   They can file for Adjustment of Status even if they are in the U.S. illegally — but they must have entered the U.S. in a legal status.   Generally, you cannot file if you have worked illegally, but that also does not apply to immediate relatives.

The major requirement is that you have to have an immigrant visa “immediately available” to you.   Immediate relatives always have an immigrant visa immediately available.    For other people, it is dependent on the backlog.   Sometimes an immigrant visa class, like Special Immigrant R-ligious workers — is current with no backlog.  If they are in the right place in their visa process, they can apply for Adjustment of Status.  But, for a brother of a U.S. citizen, with a 20 year backlog, it is very unlikely that he would be in the U.S. at the precise time that his 20-year wait ends.   A lot of time, I get inquiries from people with long waits who want to file for Adjustment of Status and wait here in the US for their place in line to come up.  That is not allowable, they have to wait in their home country because their visa is not “immediately available”.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

 

Adjustment of Status, Green Cards

Coming to the U.S. as a tourist and then applying for Adjustment of Status — should you do it?

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I have been writing about Adjustment of Status.    I hear all the time about people who want to come to the US on their tourist visa and apply for Adjustment of Status.   Most of these people think that this is what they should be doing — that this is the normal way to do it.  And to be honest, people do it all the time and it works.  So why am I writing about this?

The short answer is that it is illegal.   If you are entering on a tourist visa, you are stating that you are planning on returning home out of the US when your visit is over and that you do NOT intend on applying for a green card.   You are not allowed to enter the US on a tourist visa if your intent is to apply for a green card.   People do it all the time, but it is not legal.

If, at the border, they should believe that you are entering with the intent to apply for a green card, they are supposed to deny you entry.   In fact, they could deport you for immigration fraud, which could keep you out of the US for the rest of your life.   That is not likely, but it is possible.    In addition, if you do enter the US successfully, and they conclude while you are filing for Adjustment of Status that you committed fraud when you entered the US that could put you in deportation court as well — although that is not too likely either.

In summary, I recommend against this because it is illegal.  But people do it all the time and it works.   But, if it doesn’t work for you, it could disrupt your life for years or forever.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Adjustment of Status, Green Cards

An overview of the Adjustment of Status Process for the Spouse, Children, or Parents of a U.S. citizen if they are in the U.S

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If the Spouse, Child or Parents of a U.S. citizen are in the U.S. they can apply for adjustment of status.   Adjustment of Status is the highly sought-after prize of the immigration process.  It allows you to stay here in the U.S. and work (at least part of the time — after you get your employment authorization) while you are waiting to receive a green card.  Assuming that you qualify for Adjustment of Status — I will talk about that in a couple of weeks — once you file the Application for Adjustment of Status, you are allowed to stay here in the U.S. until you get your green card.

Normally, the process is started by filing a visa petition together with the application for Adjustment of Status.  You will also file a request for work authorization and a request for a travel document.   Currently, everything together costs $1,225.  But that may go up in the near future — it was supposed to go up already, but there is a court case holding up the fee increase.  You will also file an immigration medical exam report, an affidavit of support (or two) to prove that you will not need to go on welfare, and relationship evidence.

The time frames are very difficult to set forth here.  Everything has been stretching out.   The whole process had been less than a year, and then it was taking about a year.  I don’t know how long it will take at this point.   At some point in the process you will need to go in to have your fingerprints and photo taken digitally.   Then, four to eight months into the process you should receive employment and travel authorization.  I recommend that you do not travel if you can help it, but sometimes it is necessary.

Finally you will be called in for an interview.  If you are the spouse of a U.S. citizen, you and your spouse will be called in.   The interview is longer for spouses.  The parents or children of a U.S. citizen may wind up not being called in for an interview, but you might.

After the interview, the green card will usually come in a couple of weeks, but it could take months.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

757 Appleton Road, Elkton, MD 21921

Gunnar.L.Armstrong@gmail.com

 

Uncategorized

The K-3 process for Spouses of U.S. citizens

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The K-3 process was developed a number of years ago as a way for spouses, and their children, of U.S. citizens, enter the US in a more expeditious manner.   It can live up to its  promise, but not too often.    The summary of the process is that the U.S. citizen files a visa petition as if he were doing the regular consular processing route set forth last week.    However, immediately after receiving the receipt notice from the USCIS for the filing of the visa petition, he files a another petition requesting K-3 processing.  And here is the problem.  Both the regular visa petition and the K-3 petition are processed at about the same rate, and the visa petition was filed first.   If the regular visa petition is approved first, the Department of State will not process the K-3 visa — they will only do the regular visa petition process.  In that case, the foreign spouse will process through the regular consular process set out last week.

If, for some reason, the K-3 petition is completed first and the Department of State chooses to go with it, the process is very different.   The NVC really does almost no processing.   They get the petition packet from the USCIS and immediately forward it to the Consulate to get started on the K-3 visa process.  The applicant then gathers her documents, schedules the interview and gets her immigration medical   If everything goes well, she could be in the US in a month or two or less.  However, that is only the start of the rest of the process.

Once the K-3 applicant arrives in the US, she has to then file for a green card.  She has to file an application for Adjustment of Status.  That process is provided in more detail in the next posting.   The only real difference is that the K-3 will not need to refile a visa petition as part of the Application for Adjustment of Status.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Applying for a Visa, Green Cards

An overview of the Consular Immigration Process for the Relative of a U.S. citizen if they are outside the U.S.

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Normally, if a relative of a U.S. citizen is outside the U.S. they will need to go through Consular Processing to obtain and immigrant visa and come to the U.S.   There are two groups of relatives — immediate relatives and other relatives.  Spouses, children or parents of U.S. citizens are called immediate relatives.  Immediate relatives generally go through the Consular processing immediately after their visa petition is approved.  When I refer to children, I am referring to children of US citizens who were not born US citizens.  Children who are born US citizens, of course, do not need to immigrate.   Other relatives, such as siblings and adult children of U.S. citizens undergo the same immigrant process, but they usually have years to wait after the visa petition is filed and before they can start the Consular processing.

Consular processing is the process of obtaining an immigrant visa and entering the United States.

The immigration process is started when a U.S. citizen files a visa petition for his relative with the USCIS.   Immediate relatives get preferred processing — their petitions are processed somewhat expeditiously — it might be two or three months — but it also might be eight months to a year.   Right now it seems to be taking about five to seven months.    Other relatives, because they have a long backlog, might not get their petitions approved for a couple of years or more (this is because there is no reason for the USCIS to hurry.  Even if the USCIS would hurry, that would not allow them to come any sooner because the backlog is at the Consulate (which is part of the Department of State).

After the USCIS approves a visa petition it sends the petition packet information to the Department of State — to the National Visa Center (NVC).  The NVC is in charge of gathering the documents.   Currently, for most applicants, all the required documents — birth, marriage, and police certificates, and Affidavits of Support, among others — are uploaded to the NVC website.  Also, visa and Affidavit of Support processing fees are paid to the NVC.  The applicant will also need to fill out an on-line visa application.  The NVC can be quite picky about the documents it accepts.  I have had it repeatedly reject an acceptable document — I finally convinced it to accept the document, but we lost a substantial bit of time. Once the NVC gathers all the documents, it will put the applicant in the queue for an interview.   Usually it takes two to four months to get to the interview from the time the Visa petition is approved.  Unfortunately, it is taking much longer right now.

Once the Interview is finally scheduled, the applicant needs to get a medical examination from an approved doctor.    You want to get it as close to the time of the interview as possible because you have to enter the US within 6 months of the date of the examination.    The interview will be at the consulate.   If you are the spouse of the US citizen, you should expect some questions about your relationship.

After the interview, presuming that the visa is approved, you will get your visa from the Consulate.  You will then need to pay an on-line immigrant fee to the USCIS.   Then you can enter the U.S.   You must do it before the expiration date on your visa.   Once you pass customs, you will receive lawful permanent resident status.    Your green card should come in the mail within the next several weeks, but it could take months.    Your stamped visa will serve as proof of your lawful permanent resident status until your green card comes in the mail.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Adjustment of Status, Applying for a Visa, Green Cards

Adjustment of Status versus Consular Processing

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There are two main routes for obtaining permanent residence (a Green Card) in the United States: Adjustment of Status and Consular Processing.  Each of these can be used in different circumstances and it is important to know the difference.

Adjustment of Status is the “Holy Grail” of the immigration process.  This is what people usually prefer if they can get it.   However, not everyone can qualify.

The main advantage of Adjustment of Status is that it allows the person seeking the Green Card to stay here in the United States while his Green Card is processing.  If a person is in the United States when the opportunity opens for him to apply for a Green Card, and he satisfies certain conditions, he may qualify for Adjustment of Status.   You generally need to already be here when the opportunity opens for you to apply.   For example, a person who is here on a tourist visa for six months may meet an American and decide to get married and stay here; he would normally be able to apply for Adjustment of Status.   He will not immediately be allowed to work, but he can request employment permission which will usually be granted after about four months.  Another situation could be a person who is here on a temporary work visa and who qualifies for an employment-based immigrant visa.   He will often be able to file for Adjustment of Status so that he can stay here and work while he waits for his green card to be processed.

The disadvantage of Adjustment of Status is that it will not work for everyone.  You are not allowed to come to the US with the intent to apply for a green card.  If you do that, it might work, and it might result in major immigration problems.  If you have entered illegally, you cannot adjust status.  For everyone except spouses, parents and children of US citizens, you cannot adjust status if you have been here illegally at all.  In cases like these the applicant has to leave the U.S. and try to obtain permanent residence through Consular Processing.

Consular processing is for people who can’t, or don’t want to, adjust status.   Consular processing requires that the petitioner file a visa petition in the US and, after the USCIS processes the petition, it gets transferred to the consulate or embassy in the home (or residence) country of the visa applicant.   This whole process can easily take over a year for spouses, parents and children of US citizens.  The process for other visa applicants who might be on a waiting list can take years.  Then when it is time, the visa applicant is given an appointment for a visa interview at the consulate.   After the interview, assuming he is approved, he is given a visa which gives him six months to come to the U.S. to live.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Of Interest

Did You Know?

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That if you are a US citizen, and you want to bring you brother or sister to the United States to live, there is currently a 14 year wait for most people.  If your brother or sister is from Mexico, there is a 22-year wait.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Citizenship, Green Cards, Non-immigrant Visas

Immigration Options for Spouses of U.S. Citizen Overseas M-ssionaries

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You are a US m-ssionary living abroad, and you are married to someone who is not a US citizen.   You have a potential problem — U.S. immigration.   Sooner or later you are going to want to bring your wife or husband home to meet your family.   Or sooner or later you will need to come to the US to fundraise or for some time away from the m-ssion field.   Or, maybe it is time for you to come to the U.S. to live for the next several years or the rest of your life.   Will you be able to do that?  Will U.S. immigration allow it?

The first question is, can your spouse come to the US as a tourist?  A tourist can only come to the US temporarily.  But for many, that is all that is wanted.   A few short tips a year    You can also take occasional longer trips — 6 months to a year.  And surely the fact that your spouse is married to a US citizen will help smooth the process.

Actually, it is not at all certain that your spouse will be able to come to the US as a tourist.  And the fact that you are a U.S. citizen actually makes it more difficult for your spouse to get a tourist visa.   The problem is that a tourist visa is for a person who only wants to come for a visit, and who fully intends on returning home to his home country after the visit.   But, you have to prove that intention to the person at the consulate and to the person at the border.   If they are doubtful about your intent to stay in the US, they will deny you a visa or entrance into the US.

They will look at a number of factors.  Is your spouse from a country where most people do not over stay, or is she from a country where a high-percentage of people do over stay.   How strong are your ties to the other country?  The longer the two of you have lived abroad the more likely they are to believe that you intend on returning there.   The fact that your spouse is married to an American makes it more likely that he will want to stay in the US, because it is rather easy for a person married to a US citizen to “change his mind” and decide to stay.

Some people find it very difficult to get tourist visas — even if they have been married a long time and have lived for years in a foreign country.  For these people, the only option is immigration.   The US citizen spouse will file a petition for them and, once it has completed its processing, they go to the consulate, get an immigrant visa and come to the US.    If they intend on staying here in the US that is the end of the process.

However, if they want to continue being m-ssionaries abroad, there are two other options.   The first, if the non-U.S. citizen spouse doesn’t want to become a U.S. citizen, she can apply for a Re-entry Permit.   The Re-entry Permit will allow her to stay out of the US for up to two years at a time for the first four or five years, and then one year at a time.  The downside is that it costs about $600 each time you need to renew it.   And, you always face the possibility of a grilling from a suspicious U.S. customs officer.

The other option for a spouse of a U.S. m-ssionary who wants to continue serving abroad is citizenship.   Normally, you have to wait three or five years, and spend most of that time in the US before you can get US citizenship.   But the spouse of a U.S. citizen m-ssionary can usually apply for citizenship immediately after he gets his green card.  The advantage of this is that puts an end to all the questions about coming and going and “will I have trouble when I enter?” questions.   Just so you know, the US fully allows dual citizenship — but some foreign countries do not.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong