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Immigration Law Article:

Bringing a Foreign Fiancée or Spouse to the United States

Who is Eligible to File a Petition To Obtain a K-1 Fiancée
Visa or a K-3 Marriage Visa?

NOTE: (This article was written by an attorney at The Solomon Law Firm, P.C. in Houston, Texas ( www.thesolomonlawfirm.com ) who has personal experience in going through the process of bringing a foreign fiancée to America. We think you will find it very enlightening.)

First let me say that you don’t have to ask a lawyer to get an answer to the question at the top of this article. Just read the instructions for filing a petition for a K-1 fiancée visa or a marriage visa. But be aware that the immigration process is about a lot more than filling out and submitting a bunch of forms. Unless you know the law, the evidence that is required, the red flags, the bars to eligibility, and so forth, you could end up wasting months or even years of your life and end up with a denial for your case.

For example, some people don’t realize how important it is to be truthful when they fill out the forms, but there can be severe consequences for failing to tell the truth. The warning is there, but some people either don’t read it or they choose to ignore it:

“If you knowingly and willfully falsify or conceal a material fact or submit a false document with this Form I-129F, we will deny the Form I-129F and may deny any other immigration benefit. In addition, you will face severe penalties provided by law and may be subject to criminal prosecution.”

Wow, if that doesn’t scare you, it should! This warning appears all the way at the end of seven pages of instructions. The fact that you were tired by the time you got to that page and didn’t read it carefully is no excuse.

What the heck, you say, I love my fiancée and I will take the risk. I will just tell a little white lie, you think to yourself. Do you really want to take the risk? Aside from a denial or a revocation of approval, what is the risk? Well, the answer is right there in black and white on the Form I-129F, but you probably will skip right over it. Let’s cover it here, though, because they aren’t fooling around. The penalties are quite serious.

A fine of up to $10,000.00 or five years in prison or both “will be” imposed for willfully and knowingly falsifying a material fact, making a false statement, or using a false document.
But wait, there is more:

A fine of not more than $250,000.00 or not more than five years in prison or both “shall be” imposed for knowingly entering into a marriage contract for the purpose of evading any provision of the immigration laws.

So, aside from the little white lie that will get you in trouble, if you were tempted to accept that proffered payment of $30,000.00 or so to file a K-1 fiancée visa petition, or to marry a woman in another country and file a marriage visa petition so that she can come to America, you better think again.

Visa fraud is not taken lightly, and people get caught all the time. When they get caught, the alien fiancée or spouse will never be eligible to apply for an immigration benefit again. Because of visa fraud, it is more difficult for couples who have a genuine love and relationship to obtain a K-1 fiancée visa or a marriage visa. In fact, because of the heavy aura of suspicion, there are times that people who are genuinely in love and have a genuine relationship may be denied a K-1 fiancée visa or a marriage visa. Sometimes they give up and move on with their lives. Sometimes the American man moves to China or wherever his fiancée or wife lives and they make their life together there. Sometimes they apply again, and sometimes they actually are approved for a visa the second time.

The message here is very clear. Don’t even think about falsifying or concealing information or submitting false documents with your Form I-129F or your I-130. You can bet that everything you say will be the subject of intense scrutiny and even government (including FBI) investigations. If you fail to disclose everything, or if you submit false information, then even if your K-1 fiancée visa petition or marriage visa petition is approved, that approval can be immediately reversed when your attempt to be sneaky or dishonest comes to light, in addition to any other penalties or criminal charges that you may face.

So are you eligible to file the Form I-129F to seek a K-1 fiancée visa petition? Let’s check the Instructions for Form I-129F, Petition for Alien Fiance(e):

“You may file this petition if:

  1. You are a U.S. Citizen, and
  2. You and your fiancé(e) intend to marry within 90 days of your fiancé(e) entering the United States, and are both free to marry, and have met in person within two years before your filing of this petition unless:

    • The requirement to meet your fiancé(e) in person would violate strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice;
    • It is established that the requirement to personally meet your fiancé(e) would result in extreme hardship to you.

      NOTE: Unmarried children of your fiancé(e) or spouse who are under 21 years of age and listed on this form will be eligible to apply to accompany your fiancé(e) or spouse.”

Did your eyes glaze over yet? Let’s break that down.

The first rule is easy. If you are not a U.S. Citizen then you are not eligible to file a Form I-129F to ask for a K-1 fiancée visa. Period. Stop reading. Don’t waste your time or your money.

Most of you who will be reading this article, though, will be a U.S. Citizen, so you can proceed to the next part of the instructions. Later we will discuss what you must do to prove that you are a U.S. citizen. Yes, you have to prove everything. They will accept your word for nothing.

You also read this part correctly. If you obtain a K-1 fiancée visa and bring your fiancée to the United States, you must marry her within 90 days of her arrival. If you don’t marry your K-1 fiancée within that 90 day time period, she must leave the country and cannot return unless you start the process all over again, and she may or may not receive permission to come to the United States again.

I know someone who is going through this difficult process now. His K-1 fiancée arrived in the United States after obtaining a K-1 fiancée visa, but she was homesick, so she left the United States just before the 90 day time period expired. Within a couple of months after returning to her home in China, she decided that she in fact wanted to be in the United States with him and marry him, and wanted him to start the process all over again.

There is a message in that story for you and your K-1 fiancée. Some ladies who arrive in the United States with a K-1 fiancée visa get married and are very happy here. Others are not.
But don’t miss the second part of the eligibility requirement. Before you have any chance of obtaining approval for your K-1 fiancée visa, you must meet the requirement that you have met your fiancée in person within two years before your filing of the Form I-129F seeking a K-1 fiancée visa.

But, you say, it would be expensive for me to go meet her, or I can’t afford to go meet her, or I am too busy to go meet her, so surely I can get an excuse based on it being an extreme hardship. Sorry, that isn’t going to happen. I know what the instructions say. We are dealing with reality here, and the reality is that the granting of such an exemption would be rare indeed. If you think you meet the other exception, based on strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice, go for it, but be prepared to prove your case.

So what am I saying?

Well, if your fiancée lives in a country where she can obtain a visa that allows her to visit you in America, you can bring her to America to meet you. But if your fiancée lives in a country where she probably will not be able to obtain a visa to come and visit you, then you have only one choice. Well several, I guess, but only one is practical. You have to get across that big pond that separates you from your fiancée somehow. Swimming isn’t a very good option. A boat is almost as impractical. A hot air balloon also isn’t a very good choice. You probably don’t know anyone who can “beam you” over there. So let’s be real. You will have to get on an airplane and go see her. That costs money. But if you are concerned about the cost of a plane ticket, you should look carefully at what it will eventually cost if you decide to bring your K-1 fiancée to America.

Now you will also be required to submit evidence to support your case, and this is another reason that being represented by a knowledgeable immigration lawyer is important. Cases without the proper evidence are rejected or denied all the time. Evidence is required at each stage of the fiancée visa process, and looking for answers about it on the internet can lead to a bad result.

Notice here that you don’t have to promise to marry; you just have to swear that you intend to marry. There is a difference. There is a 90 day window of time to act after your K-1 fiancée arrives in America, and for a good reason. First of all, it may take a little time for you and your K-1 fiancée to finish planning your wedding after she arrives. Second, you and your K-1 fiancée may want to spend some time together before you actually have the wedding ceremony after she arrives. Sometimes, as I have already indicated, one or the other of you will change your mind about wanting to get married after she arrives.

When seeking a K-1 fiancée visa, those are the only eligibility requirements for filing the Form I-129F. Remember, though, that approval of the Form I-129F fiancée visa petition is one thing. Obtaining approval at the United States Consulate in the country where your K-1 fiancée lives is a completely different, and usually far more difficult, issue.

If you have filed two or more K-1 visa petitions at any time in the past, you must apply for a waiver. Likewise, if you have previously had a K-1 visa petition approved within two years prior to the filing of your Form I-129F seeking a K-1 fiancée visa, you must obtain a waiver. This latter requirement would apply to the person I mentioned previously, whose fiancée came to America when their K-1 fiancée visa application was approved, and then she returned to China within the 90 day period without marrying him, because she was homesick. Now she wants to return. They must try to obtain a waiver. That means they have some explaining to do, an extra hurdle to cross, and they may or may not be successful.

If you are in a situation where you must obtain a waiver, the request for the waiver must be carefully prepared and presented in order for it to be approved.

Now I will tell you some things that you may find hard to believe. As difficult as the government is going to make it for you and your sweet lady to obtain a K-1 fiancée visa, they still leave the door open for others in a way that might make you wonder. But first let’s talk about how everyone got swept into what seems like a suspicious category, including in all probability, you.

That is because you may well fall under the International Marriage Broker Regulation Act (called IMBRA, for short). I didn’t use a marriage broker, you say. I met my lady through a dating website, just like men and women in America meet each other every day. All either one of us did was pay a monthly fee to join, and then we were able to look at profiles of other people. We saw each other’s profile and liked what we saw, so we started writing to each other. Neither one of us paid a marriage broker to do anything.

Guess what? IMBRA defines “international marriage broker” to mean a corporation, partnership, business, individual, or other legal entity, whether or not organized under any law of the United States, that charges fees for providing dating, matrimonial, matchmaking services, or social referrals between United States citizens or nationals or aliens lawfully admitted to the United States as lawful permanent residents and foreign national clients by providing personal contact information or otherwise facilitating communication between individuals.

There are some exclusions listed that we won’t go into here, but the bottom line is that many, if not most, if not nearly everyone, who is reading this is likely to have met his or her foreign love through the Internet in one way or another, or some website like I have described was used to facilitate their communications.

The first thing to remember is this: when you are asked how you met, tell the truth. Don’t make up some cover story about how so and so introduced you. You are just buying trouble. If you make up a story you may very well slow down your path to a K-1 fiancée visa, or cause your petition to be denied because you lied about how you met. If you met through a dating site on the Internet, say so, and don’t worry about it. Rest assured that the United States Consulates see this answer every day of the week on many, many K-1 fiancée visa petitions. They don’t deny K-1 fiancée visa petitions just because a couple met on an Internet dating site. They deny them because the proper evidence was not submitted or because they conclude that the couple does not have a bona fide relationship, or because they conclude that the couple is attempting visa fraud, or because other laws require that the petition be denied.

You might find it a bit distasteful to give a positive answer on the IMBRA questions about how you met, because you will see that there are additional disclosure requirements under IMBRA for anyone who has been convicted of certain crimes. A person who falls in this category must submit certified copies of all court and police records showing the charges and dispositions for every such conviction.

And pay attention now, if you fall in this category, because this requirement is there even if a person’s records were sealed or otherwise cleared or if anyone, including a judge, law enforcement officer, or attorney, told you that you no longer have a record.

This information must be disclosed, but not so the government can prohibit someone from obtaining a K-1 fiancée visa. It is obtained because if a K-1 fiancée visa petition is approved for a person who made such disclosures, a copy of his petition, including all information submitted about his criminal convictions, will be provided to the Department of State so it can be given to the woman such a person is trying to bring to the United States either through a K-1 fiancée visa or a marriage visa.

Surely, you say, these rules must relate only to crimes that did not hurt anyone. Surely, you say, someone who committed violent crimes would be excluded from trying to obtain a K-1 fiancée visa on those grounds alone. Surely you are wrong.

This IMBRA disclosure rule applies to convictions for domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking.

If that isn’t bad enough, this IMBRA disclosure rule also applies to convictions for homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of these crimes.

Whew! And we still aren’t done. This IMBRA disclosure rule also applies to crimes relating to a controlled substance or alcohol on three or more occasions, and such crimes did not arise from a single act.

Well the fact is that anyone who is required to make these kinds of disclosures under IMBRA must seek a waiver of the filing limitation that is imposed by IMBRA. Basically anyone who committed a violent offense must present evidence to show that extraordinary circumstances exist in his case. If, for example, someone was being attacked by their spouse or parent at the time and was acting in self defense, they might seek a waiver.

Under other provisions of IMBRA it might be necessary to seek a waiver when seeking a K-1 fiancée visa or a marriage visa where you have previously obtained one or more of such visas. You might be required to submit a death certificate and other evidence, for example, if your previous alien spouse died.

So how do you feel now? Are you confident that you can meet the eligibility requirements? Good. In another article we still need to discuss the actual filing process. And remember, this process that we have discussed so far will only get you a piece of paper that says your visa has been approved, assuming you submit everything correctly and meet all of the requirements. You will still face the more difficult part of the fiancée visa process, but that discussion is for another day.

Copyright 2014 By Lee Solomon

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