Should I get a Fiancé Visa or a Visitor's Visa?

May 5, 2013 Judith Simms

A fiance visa brings your fiance to US and then you get married here within 90 days and your fiancé applies for his or her green card from the US. A visitor's visa allows a person to visit the US for a temporary stay. Usually a couple might choose using a visitor's visa when the foreign fiancé already has a visitor's visa and just wants to get married in the US then return home. A couple might have no choice but to use the fiance visa if they want to get married in the US but the fiancé lives in a country where the visitor's visa is next to impossible to obtain.

Which one is better and what are important tips to keep in mind?

If your fiancé already has a visitor's visa and is uncertain of whether they want to stay for a longer visit or move to the US permanently then using the Visitors visa to have a longer visit makes sense. What immigration officers care about in this situation is what the couple's intentions are. If the couple intends to bring the fiancé to the US to get married and start a life together permanently, then an immigration officer would prefer a filing of a fiancé visa in this situation. However, if your intention when you come is just to visit the.US for a temporary stay and intend to return home at the end of your visit then it would be an appropriate use of your visitors visa.

A few things to keep in mind about the fiance visa and travel on the visitors visa:

Use of the visitor's visa once the fiance petition has been filed: Be careful and really consider the consequences if your fiancé has a visitor's visa and you want to file a fiancé visa petition for them. Once the petition is filed your fiancé now has immigrant intent and will not be allowed to enter in a nonimmigrant category like that of a visitors visa. The fiancé visa has been taking an average of 6-8 months in the US, and most practitioners that I speak to will tell me it is more like 8-9 months. That can be a long time to go without seeing your fiancé, so be mentally prepared for that especially if for monetary or work/family reasons the US citizen is unable to travel back and forth to visit the fiancé.

Caution about changing your mind from non-immigrant to immigrant intent: When you enter the US in a non-immigrant visa category, at some point you have told an immigration officer that you are just coming to the US for a temporary duration. Life happens and circumstances change, so there are plenty of people currently in the US who decided for one reason or another to postpone their trip home and remain in the US. BUT even though this is a reality for some people, staying past your authorized time period can have negative consequences as discussed below.

Changing your mind to return to your home country and getting married/staying in the US: Be careful when coming to the US to visit and then changing your mind and deciding to stay. This can be very tricky and people who might have been fine if they had that intention and came through the proper channels of obtaining an immigrant visa can be denied their application for fraudulent intent and then removed and barred from returning. This happens because there is a presumption when the marriage happens within your first month of arrival that you came specifically to get married and stay--therefore you are presumed to have evaded immigration laws that say you needed to wait for an immigrant visa in your home country. Immigration takes this very seriously, so if you are here less than 90 days and are thinking about staying and getting married please consult with an immigration lawyer. There may be safer options and it is always better safe than sorry when it comes to immigration.

Consequences of overstating your visa: There are many serious consequences to overstaying a visitor's visa. It may not be a bar to adjustment of status if you are married to a US citizen and applying for a green card--BUT it may bar you from other immigration benefits. The consequences to overstaying vary and may depend on how long you over stayed your visa, but you risk deportation and the potention of facing a bar to returning for time spent out of status.

Deportation proceedings: Yes, marriage to a US citizen can be a defense to deportation proceedings BUT if the marriage occurs after your fiancé is placed in removal proceedings then you will need to show convincing evidence that the marriage is not fraudulent. The presumption is that when the marriage occurs in removal proceedings that it just took place to keep the foreign national here in the US and is not genuine.

As you can see some of these issues can be complex. But as long as you consider some of the consequences of your actions beforehand you can make an informed decision about whether you need to visit or immigrate. If you have any questions about what I have outlined above feel free to contact me.

Can I travel to the US after a family member has filed for me?

May 4, 2013 Judith Simms

I have been asked this question numerous times: I have an existing visitors visa or am from a visa waiver program country and I want to travel to the US but my family member, spouse, mother, brother has filed an immigrant petition for me: what should I do?

As you probably already know, it is hard to travel to the US with an I-130 pending. Here are some things you can do to help convince the border patrol agents at the airport that you intend to return to your home country. There are no guarantees with this process, even with showing them all of the information below you have to face the very real chance of being turned around and sent back to your home country.

1. Travel with a packet of information. Have your relative send you your I-130 or bring your NVC packet if it is already at that stage.

2. You could bring a letter from your employer stating how long you'll be gone and when you'll be back. Also, if your travel is employment related then have them explain what you are going to be doing in the US for your job.

3. Bring proof that you have obligations at home that you need to return to. Ex. Rental agreement or mortgage, kids or other dependants who rely on you, pets, ongoing memberships etc.

The point is that you need to put together documents showing that you have no immigrant intent. Hopefully this list of information to bring with you to evidence that is helpful.

As you can see, immigration issues can be complex. So if you have any questions about your immigration issues, please feel free to call me at 347-460-0765 to discuss our immigration services and your options.

Filing Your Green Card Application after Entering with a Fiance Visa (K-1)

May 3, 2013 Judith Simms

You and your fiancé are finally reunited after waiting all of those long months.Unfortunately, the journey does not end there.There are still a few more hoops to jump through before your fiancé can get his or her green card.The steps you will have to take are:

How Do I Revoke my Affidavit of Support?

May 2, 2013 Judith Simms

f you have filed an affidavit of support on behalf of a spouse, family member or friend, you cannot revoke it. The affidavit of support will stay in effect until:

If I am divorced or separated can I file the I-751 and remove conditions on my two year green card?

March 26, 2013 Judith Simms

If you obtained your green card through marriage and you were married for less than two years at that time, then you will have to remove the conditions on your green card after two years and apply for the 10 year green card. If there are problems or have been problems in your marriage and you are either considering divorce or separation or are already separated or divorced then you probably reached this page because you want advice on how to proceed with removing those conditions.

Here's how:

How do I get the 10-year Green Card removing the 2-year condition?

March 15, 2013 Judith Simms

If you came to this country through marriage to a US Citizen and you were married for less than two years at the time, then you are a lawful permanent resident who will need to remove the conditions on your green card within the 90-day period of your two year anniversary of becoming a permanent resident. You will have to file form I-751 in that 90 day time frame, and supplement that application with evidence that you have continued to have a bona fide relationship during the two years.

Here is some criteria to keep in mind:

Eligibility – You are eligible to remove your conditions if

After two years you are still married to the same U.S. Citizen or permanent resident. And you can include your children in the application with you, or
You have a valid reason for not being included in your parent’s application and you are a child, or
You entered your marriage in good faith and you are a widow or widower, or
You entered your marriage in good faith but it ended through divorce or annulment, or
You entered your marriage in good faith, but you or your children were battered or subject to extreme cruelty by your US citizen or permanent resident spouse, or
You would suffer from extreme hardship if you were deported from the US.

Initial evidence to provide:

Copies of your permanent resident card and that of your children that you have included in your petition.
Copies of documents that support the petition and provide evidence that the marriage that you were granted conditional status for was entered into in good faith and not to evade immigration laws.

Examples of this type of evidence include:

Financial records that show joint ownership of assets or that you both are jointly responsible for liabilities (ex. Checking accounts, joint tax returns, utility bills etc).
Lease or mortgage documents showing both of your names.
Birth certificates of children born during the marriage
Affidavits by people who have personal knowledge of your marriage and relationship together
Any other documents that you think are relevant

You can submit as many documents as you like, and you should submit a good amount with your petition. You will most likely be scheduled for an interview where they will question you and your spouse similar to how they did when you were applying for permanent residence.

If your relationship has ended, you should still submit evidence establishing the relationship was bona fide at one period in time and then document the relationship from that time until its demise making sure to describe things related to how it ended with outside evidence, if possible.

Why did immigration/USCIS deny my case?

March 14, 2013 Judith Simms

Getting a decision from USCIS can take a long time. After waiting for many months or even years for a decision, a denial is the last thing that you want to see. Many times your family has been separated during this period and with the denial you might be facing even more time away from your fiancé, wife, husband, child, parent or sibling.

With all of that said, a denial does not have to be the end of the road. Here is what you should look for when you review the denial notice:

Can I return to the US after having overstayed my visa?

March 6, 2013 Judith Simms

Another issue that may affect you if you are attempting to get legal status through the potential immigration reform is whether you have ever left the US after a long overstay or long time of being here without valid permission. Don't forget to review the other issues that you should be aware of here.

Here are some issues that you might face when trying to return to the US:

Prepare for immigration reform: stay out of jail, pay child support obligations and do not claim us citizenship (part 3)

March 5, 2013 Judith Simms

In addition to the other tips mentioned so far (pay any back taxes, start collecting documents proving continuous residence in the us), you will need to keep a clean record to be a good candidate for legal status once immigration reform is implemented.

This includes:

Paying Taxes - How to prepare for Immigration reform and gaining legal status - Part 2

February 26, 2013 Judith Simms

You must pay your taxes if you work in the US. Although the details of immigration reform are uncertain, like I mentioned in my first post on this topic, the proposals that have been released so far all mention filing tax returns. The US taxes people on earnings from work preformed in the US. The taxes that you pay will go towards government services.

Here are some helpful tips to help you start preparing now:

How do I help a friend or family member in immigration custody or jail?

February 21, 2013 Judith Simms

Is your loved one detained? Thousands of people go through immigration custody and detention each year. In NY, Varick Street Detention Center is a service processing center located in Manhattan where immigrants are held for processing before being moved to other detention facilities in New York or New Jersey. The major detention centers that they can be moved to are Buffalo Federal Detention Facility or Orange County Correctional Facility in NY, or Essex County Correctional Facility, Elizabeth Contract Detention Facility, Bergen County Jail or Hudson County Correctional Facility in NJ.

If your loved one was picked up and needs to go through criminal court before being detained by immigration, then they may be in one of many county jails as well. For instance, someone arrested in Mount Vernon, NY might be held in Valhalla until their criminal case is decided.

If you are not sure where your friend or family member is being held, you can locate them using the Immigration and Customs Enforcement (ICE) locator here

Since most people are unfamiliar with the process I’ll post some tips and general information here that can assist with finding a family member. If you need additional assistance contact an immigration attorney.

Visiting your friend or family member:

Can I prepare for Immigration Reform or a change in law?

February 18, 2013 Judith Simms

Quite a few people are asking about whether there will be a new amnesty program or a change in policy that allows them to be here legally. At this point, no one is certain whether a new law will be passed by Congress or what it will end up looking like. Even though I do not know the specifics or even whether or not a law will pass, I am hopeful that something will be done this year for the millions of undocumented persons in the US--especially important for the Bronx community and surrounding NYC boroughs.

One thing is certain, once a new law does pass many people are going to be putting their documents together and trying to get ready to present their best application to USCIS. I tell anyone who asks that it is never too early to start looking for relevant documents and to start putting them together. If a comprehensive immigration reform law passes this year like we all hope it will, everyone will be scrambling to put those documents together.

What kinds of documents am I talking about? I suggest that people start to put these documents together:

How easy is it to get immigration status for non-immediate family members?

February 10, 2013 Judith Simms

Many of my Bronx clients want to know how to get a green card for different family members. Non-immediate family members like cousins, grandparents, aunts and uncles etc. are all parts of our extended family that we want to help. Although you will not be able to directly petition for them, you can let them know how they can legally come to the US to live.