Tag Archives: k1

K-1 Visa Petition For Fiancee Denial

The K-1 Fiancee Visa permits a foreign national to enter the United States for purposes of marrying a United States citizen. Some of those fiancee visa petitions however, are denied. As a result, it is not unusual to see either of the parties simply give up due to exhaustion and delays with the process.

The most common reasons for denial follow:

Misrepresentation: If either the petitioner or fiancee made a material misrepresentation or knew or should have known that incorrect information was being provided in the visa process, from the initial filing of the petition to the consular interview, the petition can be denied. An innocent failure to provide sufficient information can be appealed or cured by submitting another petition.

Insufficient Documentation or Information: When the petitoiner or fiancee are notified that they have not provided sufficient documentation or information, supplementing the petition can cause time constraints that might not be able to be met. This issue frequently arises in the context of termination of a prior marriage. Failure to provide satisfactory proof of divorce, annulment or death of a former spouse can delay or be cause for denial of a Fiancee Petition.

Conviction of a Crime: A fiancee petition can be denied if the fiancee has been convicted of a crime involving moral turpitude, drug possession or trafficking or prostitution. Moral turpitude can loosely be defined as depraved and vile conduct that flies in the face of honest and moral conduct. The fiancee should also not have any immigration violations. On the petitioner’s side, the International Marriage Broker Regulation Act (IMBRA) must be considered. Non-compliance with IMBRA can also result in denial of the petition.

Insufficient Relationship:
Petitioner and fiancee must prove that they have personally met within the last 2 years and have developed a serious relationship with a genuine intent to marry. Proof can be provided in the form of airline boarding passes, hotel receipts, phone records, passport stamps and recent photos of the petitioner and fiancee together. Petitioners are encouraged to liberally supplement their petitions with such evidence.

Medical Issues: The fiancee is required to submit to an extensive medical examination, primarily for communicable diseases such as tuberculosis. The petition can be denied should the fiancee carry a communicable or sexually transmitted disease. A severe mental disorder can also be cause for denial as can a severe non-communicable physical disorder.

Petitioner’s Income: Petitioner is required to show a minimum income of at least 25% above the poverty level set by congress each year. The intent of this requirement is the concern that the fiancee not become a public charge in the future. If petitioner cannot initially cross this threshold, supplemental or new tax returns may be required.

The Interview: The fiancee’s preparation for the consular interview is critical. They should be clean and neatly dressed, prepared to answer questions regarding their relationship with the petitioner and have full and complete documentation to supplement their answers to questions in order to dispel any doubts about a sham marriage. Well prepared and well documented petitions will bring shorter interviews and fewer questions, but preparation for the questions is again critical. Inability to answer simple questions may bring the credibility of the fiancee into issue, causing denial. Assuming the parties are prepared, honest, sincere, know each other well and genuinely wish to marry, experience has it that the interview questions will be quite simple.

Guest Post Author

Christopher J. Stoll

Facebooktwitterredditlinkedinmail

Transfer to an H1B or E3 Work Visa From…

Ok this has to be one of the most common questions I get asked by everyone on this blog and is also in many of the comments I see so I thought it important to cover.

Now there are many issues with transferring and depending on the visa you want to transfer to there are different qualifying criteria so it is important to be aware  of those. I will cover this topic more in depth for specific visa classifications, particular cases like the F1 Student, J1 or H1B/E3 work visas as they tend to be the most common that people want to transfer too while still in the country.

A change of status is not automatically granted even if you qualify and the USCIS will also determine on your unique case how long to extend your visa period for even if it is granted. It is all very arbitrary sometimes but generally you will be successful if they deem your intentions to be genuine and you have not done anything wrong under your current status.

You should not that there are certain visa categories you cannot transfer from while in the US so you have no choice under these visas to leave the US to apply for a new visa.

This includes;
C Visa (aliens in transit)
D Visa (usually for flight/ship staff, etc.)
K1/K2 (fiancee visa and dependent of fiancee)
S Visa (witness or informant)
TWOV (transit without visa)
Tourist under waiver program classified when you receive GREEN I-94W form when you enter US
Also; to note;
J1 visa can’t transfer/extend if they are subject to the 2 year residency rule (unless they have followed the long government channels to get this condition revoked)
M1 vocational visa can’t transfer to F1 student visa. They also can’t transfer to H visa category where the training helped them qualify for the H visa.  ( the M visa is used for things like pilot training, etc.)

Essentially there are some other basic requirements you must meet to also change your status such as;
– Have entered the US legally
– Not have done anything in the US to immediately disqualify you from consideration
– No factor requiring you to leave the US prior to re-entry and admission under your new status (often determined by USCIS)
– You have submitted your application prior to the expiration date recorded on your I-94 form given to you and stamped/dated when you entered the US (usually stapled inside you passport near you current visa)

NB: Your passport must be valid for your entire stay of applied period for your new visa

TO BEGIN TRANSFER

You have to file form I-129 to the USCIS for the categories below and this approval for the change of status has to be approved before you can begin peforming the activities under your new non-immigrant visa category.
If you have a spouse/dependents they need to file form I-539 to change their status. It is a good idea if this is your case to file all together so they are judged at the same time. All dependents can be filed on the same I-539 form.

The is the list requiring the I-129 form filing:
E1/E2 (Treaty Traders and Investors)
E3 (Australian temporary worker)
H1B/H2A/H2B/H3 (Temporary Workers)
L1A/L1B (Intracompany Transferee)
O1/O2 (Aliens with Extraordinary Ability)
P1/P2/P3 (Athletes & Entertainers)
Q1 (International Cultural Exchange)
R1 (Religious Workers)
TN1/TN-2 (Canadians & Mexicans covered under the North American Free Trade Agreement (NAFTA))

To qualify for the visa categories below you have to file form I-539.

A (Diplomatic & Other Government   Officials, Immediate Family members, Employees)
B1/B2 (Visitors for Business or Pleasure)
E (Treaty Traders & Investors Dependents Only)
F (Academic Students & Dependents)
G (Foreign Government Officials & Certain Immediate Family Members)
H4 (Temporary Worker Dependents Only)
K3/K4 (Spouse of U.S. Citizen & Minor Child Accompanying)
L2 (Intracompany Transferee Dependents Only)
M (Vocational & Language Students and Dependents)
N (Parents & Children of Certain People  Who Have Been Granted Special   Immigrant Status)
NATO (NATO Representatives, Officials,  Employees, and Immediate Family Members)
O3 (Aliens with Extraordinary Ability Dependents Only)
P4 (Athletes and Entertainer Dependents Only)
R2 (Religious Worker Dependents Only)
TD (TN Dependents Only)

It is recommended by the USCIS to file about 60 days prior to your date on your I-94 expiring. You can still stay in the US while your case is pending even if this is beyond your expiration date on your I-94. However during this time you will be considered not under any non-immigrant status and not be able to perform any activities (i.e. study, work. etc.) until your case is approved.

To check the status of your case, you will be mailed a receipt with a number on it which you can input on the uscis.gov website to see what is happening with your application. There is a part on the website regarding how long each of the various centers take to process these applications but generally if everything is in order it can often be done in less than a few weeks.
For students there is usually some sort of early inital approval you can receive so you can begin studies at the start of a semester.

In your application you will send your current I-94 form and be mailed a new one with a new date if you are approved under your new status. If you are denied you immediately considered ‘out of status’ and legally are required to leave … although many of course decide now to illegally stay longer.

It can always be good (and at time frustrating but necessary 🙂 ) to call the USCIS in these situation so there number if you are calling within the US is 1800-375-5283

I hope this helped provide information helpful to you and let me know if you want to cover other general parts of the process.

CJ

Facebooktwitterredditlinkedinmail