Fiancee Visa

Getting Married in China: What to do?

2011-11-30T16:34:00.000-08:00

Like every country, also the Chinese government has its own rules for foreigners who want to marry a Chinese citizen. How old do you have to be and some other things you should know. So just check out for what you have to be prepared for?
Read the article here - http://fianceeandspousalvisa.blogspot.com/2011/11/getting-married-in-china-what-to-do.html

Marriage and the K-1 Visa

2011-11-30T16:00:00.000-08:00

One of the benefits that the United States offers its citizens is the ability to bring another person into the country on a K-1 Visa, also known as a fiancée visa. This visa allows those who have met partners in other countries to marry in the US and have their partners remain with them indefinitely. But while this service provides an alternative to immigrant-based visas, the process has a set of regulations that must be followed exactly in order for an application to succeed, one that can often trip up those looking to begin their lives together on American soil.(...)
Read more http://www.fianceeimmigrationlawyer.com/Fiancee-Immigration-Blog/2011/August/Marriage-and-the-K-1-Visa.aspx

What happens when a Fiancé(e) Visa Petition is refused at the interview?

2011-11-30T15:53:00.000-08:00

This is a common question I get from potential clients that call me. Their fiancee attended the interview and the interviewing officer refused to issue the visa because of the lack of a bona fide relationship. Contrary to what many people believe, a fiance visa denial is not when a consular officer refuses to issue a fiance visa. The USCIS has sole authority to deny a fiance visa.(...)
Read more - http://www.fiancevisaslawyer.com/blog/

Result of a Recent Appeal May Make Adjustments of Status Easier for K - 1 Visa Holders

2010-07-14T14:08:00.000-07:00

Nick Chavez, an immigration lawyer from Dallas, Texas, is currently working on a case that may have a positive effect on matters concerning K - 1 visa holders and adjustment of status through another petitioner.

Quick background:

The respondent entered the U.S. in 1976 on a K-1 visa but never applied for adjustment of status based on the U.S. citizen husband. They were divorced, and she filed an I-485 application in 2006 with the CIS based on an approved I-130 filed by her U.S. citizen daughter. The CIS denied the I-485 because the adjustment was not based upon the marriage to the U.S. citizen spouse. INA Sec. 245(d). The Immigration Judge agreed with the CIS, and held that the language of the law and regulations indicates that I-485's filed after the enactment of the Immigration Marriage Fraud Amendments (IMFA) were still subject to section 245(d)'s restriction on adjustment through another petitioner, even though the K-1 was issued prior to IMFA.

On appeal Nick argued, inter alia, that the IJ impermissibly applied IMFA retroactively to persons issued a K-1 prior to IMFA's enactment. A three-member panel agreed, and sustained the appeal holding that section 245(d)'s adjustment restriction as amended by IMFA only applies to aliens issued K-1's on or after the date of enactment. Therefore, if you were issued a K-1 visa on or before November 10, 1986, you could potentially adjust now based upon another petitioner.

click here for a copy of a board's decision and order

http://www.entrylaw.com/images/Tran_Complaint_signed_.pdf

2010-06-24T15:42:00.001-07:00

Posted by Randall's friend, Brent Renison, who is well-known for eliminating the USCIS widow penalty.

Tran Class Action Litigation

2010-06-24T15:19:00.000-07:00

June 24, 2010 - A class action lawsuit was filed in Oregon federal court today, challenging the policies and procedures of the U.S. State Department and the Department of Homeland Security's U.S. Citizenship and Immigration Services relating to consular returns of K-1 fiance(e) petitions. The complaint asks the Court to certify a nationwide class of American citizen petitioners whose fiance(e)s have been subject to arbitrary and unreasonable consular returns, resulting in a denial of due process. The suit also requests the Court establish an orderly system for consular returns, as was recommended by the USCIS Ombudsman's office in 2007. Such recommendation was rejected by the Bush Administration's top USCIS official at the time.

http://www.entrylaw.com/tranclassaction.html

Mexican actress faces real-life drama over alleged marriage green card scam

2010-04-19T14:23:00.001-07:00

L.A. NOW

Southern California -- this just in

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Mexican actress faces real-life drama over alleged marriage scam

April 17, 2010 | 8:25 am

Maria Fernanda Romero Martinez has appeared in numerous Spanish-language movies and soap operas.
But now, federal authorities claim she was at the center of a real-life drama that has landed her and a Los Angeles man in court.

2009-10-09T21:42:00.000-07:00

Soldiers charged in marriage fraud

GREENVILLE -- Fort Bragg soldiers and Central Asian immigrants staged courtships and marriages to reap the benefits America gives those who get hitched, according to federal investigators.

The scheme has landed the several young soldiers and three foreign brides in the hot seat. This week, two of the soldiers and one of the brides pleaded guilty to marriage fraud in federal court; the crime could land each in prison for as long as five years.

click here to keep reading

K-1 Spouse wins case against USCIS

2009-09-22T11:46:00.000-07:00

Congratulations to Randall's friend Brent Renison for winning this case!

Hanford v. Napolitano

September 21, 2009 - Another round of justice in Texas! The federal court in Texas ordered the unlawful denial of Mrs. Hanford's adjustment of status set aside, ruling that she meets the qualifications of the statute. The automatic denial policies, as applied to K-1 spouses who marry their petitioning spouse and properly file for adjustment of status, are illegal.

Losing a Partner, and Foothold: The Widow Penalty

2009-02-02T16:46:00.000-08:00

February 2, 2009

LINK

By KIRK SEMPLE
After her husband of eight months died in the Staten Island ferry crash of Oct. 15, 2003, Osserritta Robinson, a Jamaican immigrant, decided to stay in the United States and proceed with her application for permanent residency.
But at Ms. Robinson’s interview for residency in 2005, the immigration official had some more bad news: Mr. Robinson’s death had disqualified her application.
While a foreign spouse of an American citizen is eligible for residency — and Ms. Robinson’s husband, Louis Robinson, was American — the law also requires that a couple be married at least two years for the foreign spouse to be considered for residency, in part as a safeguard against fraudulent marriages.
Moreover, the government has also argued that if the American spouse dies before the two-year mark, the foreign spouse becomes a widow — or widower — effectively annulling the marriage and the right of the foreigner to be considered for residency.
“It was a shock,” Ms. Robinson, who lives in Mahwah, N.J., said last week. “The interviewer was very sympathetic that I had lost my husband, but then there comes this law.”
Ms. Robinson sued the Department of Homeland Security and, in May 2007, a federal district court judge in New Jersey ruled that the federal government had wrongfully determined that she was no longer the spouse of her late husband. The judge ordered immigration officials to reconsider Ms. Robinson’s residency application.
The government appealed the case to the United States Court of Appeals for the Third Circuit, where a ruling is pending.
Ms. Robinson is one of at least 170 immigrants caught in this bind, according to Surviving Spouses Against Deportation, a nonprofit group. They entered the country legally, followed the rules and are now subject to deportation because their spouses died before they had been married for two years.
Opponents of the government’s rule have called it “the widow penalty.”
This population of aggrieved immigrant spouses include Diana Engstrom, a Kosovo native living in Indiana, whose husband was killed in an insurgent ambush while working as a military contractor in Iraq in 2004; Ana Maria Moncayo-Gigax, from Ecuador, whose husband, a Border Patrol agent, was killed on duty in 1999 in a car accident in Washington, D.C.; and Nelly Lockhart, who is from the Philippines and lives in Ohio and whose husband died of a heart attack in 2005.
Ms. Robinson, 31, said she felt as if she were being punished for her husband’s untimely death. The government’s position, she said, “makes me sound as if I killed him.”
“It’s not pretty burying a husband at 25,” she said. “We were each other’s best friend.”
Her work authorization has not been renewed since it expired in 2005, so she is not able to work. She has also been unable to renew her driver’s license, forcing her to rely on friends and public transportation to get around. She is living on her husband’s life insurance policy and the $1.3 million settlement she won in a wrongful-death lawsuit against New York City.
“I’m just glad I haven’t received a deportation order,” said Ms. Robinson, who lives with her 3-year-old son from another relationship.
Brent Renison, a lawyer in Portland, Ore., and the pro bono counsel for Surviving Spouses Against Deportation, said that even though the government needed to protect against fraudulent marriages, there should be some allowance in the interpretation of law to consider cases like Ms. Robinson’s.
“There have to be case-by-case adjudications as to whether a marriage is fraudulent or not,” he said. “What I mind is that they deny it outright without allowing us to show the good faith.”
Chris Rhatigan, a spokeswoman for the United States Citizenship and Immigration Services, said that she could not comment on specific cases but that the government’s lawyers were simply following the letter of the law approved by Congress.
“We know there are some hardships out there, and obviously Congress knows there are some hardships out there,” Ms. Rhatigan said, adding that the Department of Homeland Security was working with Congress on legislation that would ease the two-year marriage requirement.
Bills were submitted in Congress in the last session that would have amended immigration law to provide such relief to surviving spouses. The bills received bipartisan support, but Congress failed to act on them before the end of the session. The bills are expected to be reintroduced in the current session.
In a wide-ranging directive issued on Friday, Janet Napolitano, secretary of the Department of Homeland Security, asked her staff to review the immigration laws that affect surviving noncitizen spouses.
“What are the regulatory, legislative and litigation options that could be considered to immediately address the situation of these widows and widowers?” she wrote.
Meanwhile, the current federal interpretation of existing law is being litigated in about a dozen court cases around the country.
In addition to Ms. Robinson’s case, two other district courts have ruled in recent years that an immigrant spouse does not cease being a spouse when the American partner dies during the processing of a residency application. The federal government has appealed those cases, as well. In 2006, the United States Court of Appeals for the Ninth Circuit ruled in favor of one of Mr. Renison’s plaintiffs, though the plaintiff’s application for residency was denied.
Two district courts have upheld the federal government’s interpretation.
Ms. Robinson said that if the government’s appeal in her case failed, and immigration authorities approved her application, she would continue to live in the United States and would apply to medical school with the goal of becoming an anesthesiologist.
But first, she said, she would travel to Jamaica. “I’d go home and visit everybody and take a long vacation, a very long vacation,” she said. “It’s overdue.”

Family Battles the "Widow Penalty"

2009-02-02T12:07:00.000-08:00

Woman prohibited from immigrating with newborn son
By Robert Wilson
Monday, January 19, 2009

MARYVILLE - Mikey has more important things to be concerned with than federal law and homeland security and stuff like that.
At 12 days old, Mikey is more attuned to things like the soft sound of his mother's voice and human warmth and being dry where it counts.
Mikey is an American hero's son, born Jan. 7 in his mother's native Japan. His father, Marine Sgt. Michael Ferschke, will not see his son this side of eternity, because he fell to an enemy bullet while on patrol in Iraq last summer.
That Mikey is an American citizen, no one disputes. But a sticky bureaucratic web and an early Cold War immigration law are at present keeping the infant from permanently migrating to the U.S. to be reared by a family who loves him and loved his father.
Indeed, it may take the proverbial "act of Congress" to bring him to Maryville, where his father and mother had decided long ago the boy should be raised.
Sgt. Ferschke and Hotaru "Hota" Nakama were wed in what is known as a "proxy marriage" in which they were not physically in the same place when the ceremony was performed. He was in Iraq, she in Japan.
But beyond the sadness of losing a loved one in such a brutal way, the despair has been extended by the U.S. government's reluctance to give Mikey's mother permanent immigrant status to bring the boy "home."
Robin Ferschke, the sergeant's mother, tears up when she talks about the son she lost and the grandson she has yet to see.
The marriage, she said, is recognized by the American military and pretty much everyone else - except the U.S. Citizenship and Immigration Service, which is invoking a 1952 law, Ferschke said, that rules proxy marriages are not valid "unless the marriage shall have been consummated."
According to Oregon immigration attorney Brent Renison, who has fought to end what is known as "the widow penalty," the consummation must have taken place after the marriage, even if the couple had consummated their relationship beforehand.
Renison has been advising Ferschke throughout the case of Mikey and Hota and recently appeared on a national television newsmagazine program to press the case against the widow penalty.
The 1952 law, according to experts, was passed to deal with Asians who sought in the post-World War II and Korean War years to gain resident status in the U.S. through sham marriages entered into for money.
Despite the fact that Hota and Mikey are collecting all the veteran benefits they are entitled to, the immigration law is still being invoked.
Ferschke said it appears immigration officials "are looking for a way" to keep her American grandson and his mother out of the country.
She characterizes as "true love" the relationship her son shared with his wife, and she says she is only trying to fulfill his wish for his baby to be brought up in Maryville.
A photograph of Sgt. Ferschke was next to the bed when Mikey was delivered by Caesarean section, Robin Ferschke said.
The services of U.S. Rep. John Duncan and U.S. Sen. Lamar Alexander have been called into play in the case.
Mikey and Hota's case, according to Ferschke, may ultimately be rectified by what is called a "private bill" introduced by Duncan in Congress. A private bill is a measure that applies only to an individual or a specific group.
A spokesman for Duncan said such bills are handled on a day set aside for them on a regular basis. Each is a stand-alone bill and not a rider attached to an unrelated measure.
An aide to Alexander said in a statement that "Sen. Alexander's office has been in daily contact with the vice consul at the office of the U.S. Consulate General, Naha (Japan), and they have been extremely helpful and cooperative as we seek to help the Fershke family. We are also working through legislative options to determine which course of action would be best, and are staying in close contact with the family."
Meantime, Ferschke and her husband, Mike, will be going to Japan on Feb. 13 and returning with Mikey and Hota to Maryville on Feb. 27.
Hota will be in the country on a six-month visa that can be extended for another six months.
The family hopes to have a permanent solution to the immigration problem before Hota is forced to return to Japan.

Link: http://www.knoxnews.com/news/2009/jan/19/family-battles-the-widow-penalty/?printer=1/

Fiance(e) Visas: The Basics

2009-01-30T09:58:00.000-08:00

What is a K-1 Visa?

The K-1 visa is a special, temporary visa for fiance(e)s of U.S. Citizens who wishes to get married in the United States. These petitioners would be ineligible for other non-immigrant visas because they do not possess the nonimmigrant intent necessary for these classification (i.e. the fiance(s) intends to stay in the U.S. and thus cannot apply for a different temporary visa).

What is the K-1 Visa Process?

The U.S. citizen petitions for his alien fianc(e) with the USCIS (Citizenship and Immigration Services) center with juristiction over the U.S. citizen's residence. (Note: filings at overseas offices are not allowed). This petition must establish the following facts: (1) the parties have personally met within the previous two years; (2) the parties are free to marry; (3) the parties intend to marry within 90 days of the alien's entry into the U.S.
If the K-1 Visa is approved, the USCIS center sends the file to the National Visa Center in New Hampshire for a record check
The National Visa Center then sends the file to the consulate in the alien's country of residence
This consulate then notifies the beneficiary (the alien fiance) of the petition's approval and sends the beneficairy Instructions for Immigrant Visa Applicants which lists the required documentation. (Note: the petition is valid for 4 months but can be granted successive 4-month extensions by the consulate.)
The fiance alien and his/her minor children (who are derivative beneficiaries of the petition) then apply to the consulate for a visa using:

Form DS-156
Form DS-157 (if male age 16-47)
Form DS-156K
Form DS-230 I
police certificates
family certificates
$131 fee for an MRV (machine-readable visa)

6. Screening and medical exam of the Alien (and children) are handled by the consulate and a consulate-approved clinic. The I-131 Affidavit of Support is used at this stage, but the I-864 will be required later for adjustment.

Note: Vaccinations are not required at this stage but would be advised so as to avoid the step later in the process. If the alien fiance(e) (and his/her children) do get vaccinations at this stage, it is important to retain a copy from the doctor to submit with later adjustment applications.

7. If these previous steps are successful, the K-1 petitioner and K-2 derivatives receive visa stamps in their passports which are valid for a single-entry within 6 months. If K-1 or K-2 derivatives do not enter within this 6-month period, they must apply for a renewal of the K Visa. In addition to the visa stamps, the alien fiance(e) is also given a sealed envelope containing papers which must be delivered to the DHS border inspector upon entry into the U.S.

8. Once in the U.S., the K-1 alien fiance has 90 days to marry the U.S. citizen and apply for adjustment of status as an immediate relative in the U.S. The K-2 derivatives must also apply for this adjustment of status. Note: If the alien fails to complete this step within 90 days, the visa (and thus, legal status) expires and the alien is subject to removal.

9. The Adjustment: The application for an adjustment must include:

Form I-864
A new medical exam is not required unless the old one is over 1 year old at the time of filing for adjustment. A vaccination report must be obtained and included if it was not included in the K-Visa processing or is no longer valid.
Note: The alien fiance is (generally) not allowed to travel as the adjustment status is being processed as this would result in cancellation of the adjustment application. However, interim approval from USCIS can be obtained for travel.

10: Important Notes: In order to prevent alien use of a K visa for motives other than marriage to the U.S. citizen petitioner, U.S. Citizenship and Immigration Services does not allow:

extension of K-status
changing from K-status to another nonimmigrant classification
adjusting status through any means other than marriage to the K-petitioner