Love Has No Borders: Marriage and Fiance(e) Visas

March 25, 2012
By Bonnie Stern Wasser on March 25, 2012 7:07 PM |

1038218_kiss-1.jpgWhen I was about 16, I asked my father, "Why are most songs about love?" My father, ever the wise one, responded: "Why don't you write that down on a piece of paper and put it somewhere that you will not forget. Then open it up when you are about 25." Amazingly, I did just that! (More likely, I forgot I wrote it down and then stumbled upon the note years later.) While I don't have the perfect answer beyond the usual cliches of "love is what makes the world go 'round", or "love is universal", I do know after practicing immigration law for so many years, that indeed, a universal truth is that love has no borders. People find their soul mates all over the world. Nowadays, people can find that special someone online, while traveling, studying or working internationally, as well as through matchmaking, happenstance and serendipity. Unfortunately, our government doesn't make it easy, simple or quick for bi-national couples to be together. I just attended an immigration lawyers conference where one of the consular officers mentioned that his staff was gearing up for wedding season. As our office handles a lot of family based immigration matters, I thought this would be a good time to write about international love and how our immigration system deals with bi-national relationships.

At our Seattle immigration law firm, we frequently receive phone calls or emails from people asking these types of questions:
- "I married an American. Is that all I need to do to stay here legally?"
- "I just married an American (or green card holder). What's the fastest way to get my foreign spouse to the US or to get a green card?"
- "I just met the fiance(e) of my dreams. Can he/she just come here as a tourist and then we can get married"?
-"I just arrived on a tourist visa and married an American. It's just a simple case. Can you look these forms over and I'll just file for adjustment of status?"
- "My foreign national classmate and I just got hitched. As soon as we graduate and receive our degrees, we're going to travel the world and live or work in another country. Do I need a green card?"
-"My fiance and I want to marry and we want her 19 year old son to immigrate with her. Can we just file the papers now for a marriage case?"
-"I've been living in the US illegally since I was a kid and I just married my high school sweetheart who is American (or has a green card). Can I file for adjustment of status or should I go to the US consulate?"
-" I filed a fiance petition, but I'm tired of waiting for USCIS to approve it. What if my fiance and I just get married now instead?"
-"I'm married to an American. It's a simple case. How much do you charge for.....?"

Unfortunately, there is no "one size fits all" answer to these questions. When I look at my current roster of clients, every couple has unique circumstances. One of the reasons we require full initial consultations of prospective clients, is because we approach the process of marriage based immigration holistically and ethically, described more fully below.

Following is a very, very brief overview of some of the processes to immigration. This is not meant to be legal advice for a particular situation (or to establish an attorney-client relationship). Seeking legal advice for your particular situation is highly recommended. As you will see by the factors below, immigration law is complex and the best immigration method must be based on your particular facts. Many marriage and fiance issues and procedures have been litigated or are the subject of policy memos or operating procedures.

There are three main immigration options for couples:
a) K-1 Fiance(e) visas obtained at US consulates abroad before a couple is married;
b) Immigrant visas obtained at a US consulate abroad after the couple is married; and
c) Adjustment of status to permanent residence in the U.S., assuming the foreign spouse is eligible to adjust status and the couple is married. Adjustment is available as a remedy from removal in immigration court proceedings as well.
d) Some of the other family or employment based preference categories may include spouses of the principal immigrant. The discussion below pertains to the first three categories above.

Unfortunately, these options are not available to same-sex couples. Their options are more fully discussed in two prior blog posts, Same-Sex Marriage in Washington State and Impact of DOMA Developments on Bi-National Couples.

What option is best? Are there other options that may be better? This is where our individualized attention to the couple's backgrounds and priorities must be reviewed and evaluated. We look at a wide variety of factors such as the following nonexclusive list of considerations:
- prior immigration history
- prior representations made on ALL visa applications, ESTA forms, statements made to border or consular officers, etc.
- current location, immigration status, authorized stay
- whether a waiver(s) of inadmissibility is required or even available
- wedding plans (big/small, sooner v. later, with/without family, friends, civil v. religious)
- work issues/needs/opportunities in the US and abroad
- travel needs
- family dynamics (e.g., are the parents controlling the couple's choices?)
- cultural and religious values or customs
- legal marriage requirements of the place of intended or actual marriage
- education and work history (for potential faster employment or other visas)
- country conditions (if consular processing, issues such as safety, fear of persecution)
- history and length of the relationship
- ability to prove the bona fides of the relationship
- idiosyncrasies of particular consular posts (e.g., high or low fraud rates, petition revocation requests, limited service or no consular services, backlogs, etc.)
- children needing to immigrate (e.g., age out or other eligibility issues)
- timing (urgent need for status v. no rush)
- budget (for travel, wedding, expenses while apart, legal services, filing fees, etc.)
- affidavit of support eligibility, income/asset issues, timing of eligibility
- ability to get consent of ex-spouse in joint or limited custody situations
- petitioner status/history, including Adam Walsh Act convictions, prior petitions
- estate planning and tax issues (we refer people to specialists)
- potential for abandonment of residence - is a green card really needed?
- fraud profile? big age gap, different ethnicities or religions, how/when/where did the couple meet?
- is there a potential trafficking or abuse situation?
- quota issues for spouses of green card holders; when will the resident spouse naturalize? what status can the foreign national spouse have in the meantime?
- special programs for military spouses

We usually spend at least an hour getting to know prospective clients, the above factors and their priorities. We also explain the various routes to immigration in more detail in order to determine which course of action best meets the couple's needs and priorities.

Pros and Cons
A K-1 fiance(e) visa and immigrant visa will take about the same time (9-12 months on average) from date of petition filing to visa in hand. However, a K-1 fiance(e) will have additional procedures and expenses after admission to the US following the marriage.

K-1s are useful for couples who haven't lived together before, as it gives them 90 days to get to know each other better without getting further involved in the immigration process if the marriage doesn't take place. K-1s are useful for immigrants who have never been to the US. Many times, a person's dream to be in the US is greater than the ability to cope with life in the US, which is not always easy. K-1s also give couples time to plan a large US wedding since it is hard to predict the K-1 fiance(e)'s date of arrival.

Immigrant visas are frequently used by our clients whose families want overseas weddings or where relatives cannot afford to travel to a US wedding; where the foreign spouse wants to continue working abroad longer or needs time to sell property or deal with local family issues. In addition, a few posts around the world rarely issue K-1s due to high fraud rates. They frequently send K-1 petitions back to the US for investigation and other issues. By actually getting married, there is more of a commitment by the couple, though the same standard of a bona fide relationship must be proved and there could still be heightened scrutiny. Couples who do not qualify for adjustment of status may need to consular process their immigrant visas. There could be many other reasons to use this category. Then there are a whole group of people who do not qualify for adjustment of status, described below, who may encounter problems if they seek immigrant visas at US consulates abroad. A prior blog post, The Perils of Immigrant Visa Processing Abroad, provides an example of one such couple.

Note that a foreign national sponsored by a green card holder CANNOT complete the immigrant visa portion of the case until the quota is current. Although the initial petition can be filed, and indeed reserves the person's place in line in the quota (i.e., the "priority date"), the consulate cannot issue a visa until the quota has been reached. Quota status can be determined in the State Department's Visa Bulletin. See an earlier blog post on Understanding Quota Delays.

Immigrants who have been in the US out of status, or have been deported or committed crimes should seek legal advice, since leaving the US may trigger legal consequences affecting their right to come back to the US after the immigrant visa interview. They may be permanently barred from return or may need a waiver of inadmissibility.

To adjust status in the US, the foreign national must have been "admitted or paroled." Admitted means the person presented a passport and visa (or other paperwork in the case of Canadians and visa waiver applicants) to a border officer who allowed the person into the US. Parole is a legal fiction, a type of not-here-nor-there status, but with knowledge of and issuance by the US government.

Not everyone is eligible to or should adjust status in the U.S. Immigrants who entered without being inspected typically may not adjust status. However, there were two programs in 1998 and 2001 that made short-term exceptions, called "245(i)." There are a number of other more complex or obscure immigration programs that allow for adjustment, including a parole in place program for military spouses who entered without inspection who cannot benefit from 245(i). To determine eligibility, readers should seek legal counsel. As noted above, a foreign national sponsored by a green card holder CANNOT complete the adjustment portion of the case until the quota is current. Adjustment is also an avenue of relief for individuals in removal proceedings.

Visa petitions can be filed initially followed by adjustment applications, or they can be filed concurrently if the quota is current. However, whether this route is the most appropriate will depend upon the beneficiary's immigration history.

Using Tourist Visas to Come to the US and Marry: Beware!

Tourists and visa waiver applicants, students and others, should be very careful using short term nonimmigrant visas to come to the US to marry and stay permanently. "Preconceived intent" and fraud or misrepresentation can make such a seemingly simple and quick process turn into an expensive, long-term nightmare. The immigration officer will look back at the applicant's entire visa and admission history to determine if any misrepresentations were made when applying for or using other temporary visas that require temporary intent and a permanent home abroad that has not been abandoned.

Our immigration laws presume that everyone coming to the US is coming with the intent to stay permanently. Therefore, the burden is greater to show true temporary intent when using tourist status. By marrying an American soon after entry, or by filing a marriage based immigrant visa petition and/or adjustment of status, one can be perceived as having expressed an intent to stay permanently, which can conflict with a previously stated intention to be in the US temporarily. This would, of course, depend upon the facts and circumstances. However, we regularly hear about tourists and visa waiver applicants seeking admission at the border with actual marriages or pending fiance or immigrant visa petitions being denied admission. While marrying an American or green card holder is per se not against the immigration law, it does raise a red flag to consular and border officers that there is a likelihood the person will stay in the US permanently in violation of tourist status. In that case, the appropriate means is to use the K-1 or immigrant visa options described above.

The single biggest reason that tourist visas, student and exchange visas, or visa waiver admissions are denied is because the consular officer is not convinced of the applicant's true intentions to be in the US temporarily, i.e., "214(b)". The applicant has the burden of proving intent to return home to a home that has not been abandoned. The issue can come up in several ways: at the time of visa application at the consulate; at the time of admission to the US at a port of entry (tipped off by questions and answers, items in luggage, or the US citizen spouse is meeting the foreign national outside of customs and the border agent knows this); at the time of interview on the adjustment application; and at the time of interview on a naturalization application. In addition, any false representations on application forms or to immigration officers can lead to criminal prosecution (of the petitioner or beneficiary), inadmissibility or deportation. There is also the additional expense, hassle and unpredictability of having to file a waiver application if misrepresentation is found.

Typically, the adjustment process is most advantageous for people who have been in the US long term in another status, or the relationship was created or developed well after the foreign national's admission to the US.

Other Visa Options

We always look to see whether the foreign national might benefit more from a work visa instead, which can sometimes be faster or if the couple is reluctant to file based on their relationship. We look at all the potential categories based on the facts at hand to determine the best one for the particular couple. Perhaps there are other relatives with visa petitions in the pipeline that may be closer to approval than starting a marriage case. Other clients want to delay their weddings for various reasons, or they may need to travel extensively, or they have other compelling issues. Often, foreign national children are involved and have age-out issues. Sometimes an employer is already sponsoring the foreign national spouse. Another more common issue is that a couple has no plans to remain in the US long-term, and so the foreign national doesn't really need a permanent visa. What they really need is a temporary visa for now. Alternatively, the petitioner cannot meet the affidavit of support requirements and there is no household member or co-sponsor that can help. By contrast, there could be tax or estate planning reasons why permanent status is not necessary or recommended. In sum, the strategy will differ from couple to couple. What may seem to be an easy question on the phone, often turns out to be much more complex or not the best approach the couple originally thought, once we determine all the facts and the couple's priorities. Therefore, we suggest couples spend the time needed for an attorney to properly evaluate their circumstances.