New Orleans Family Based Immigration Lawyer

A fiancé(e) visa (aka K-1 visa) is available to allow a foreign national to enter the United States for the purpose of being married in the United States to a U.S. citizen. The K-1 visa is not an immigrant visa and does not allow the individual to live and work in the United States permanently. This Visa is only intended to allow the fiancé(e) to enter the United States to marry within 90 days.

Obtaining a K-1 Visa

To obtain a K-1 nonimmigrant visa, the U.S. citizen fiancé must first submit the I-129F petition on behalf of the foreign national fiancé(e) and establish the below:

• The petitioning fiancé is a U.S. citizen.
• There is an intent to marry within 90 days of the foreign national fiancé(e) entering the United States.
• Both individuals are free to marry. Any previous marriages have been legally terminated (divorce, death, or annulment).
• The individuals met in person at least once within the 2 years prior to when the I-129F petition was filed. There may be an exception if it can be shown that it is a long-established cultural tradition not to meet, or it would result in extreme hardship.

Once the I-129F petition is approved, it goes to the National Visa Center for processing the K-1 visa. After the visa is issued, the foreign national fiancé can travel to the United States.

After the marriage, the foreign national can apply for lawful permanent residence to live and work in the United States permanently. Contact us; our firm handles many such cases.

CHILDREN OF FIANCÉ(E)S (K-2 VISA)

Unmarried children under 21 years of age may be able to enter the United States with a foreign national fiancé on a K-2 visa.

A United States citizen or lawful permanent resident can petition to have their spouse immigrate to the United States. The first step of this process is for the U.S. citizen or lawful permanent resident to petition for their spouse by filing an Immigrant Visa Petition (Form I-130 Petition for Alien Relative) and proving the existence of their relationship.

If the Immigrant Visa Petition is approved, the spouse can either file an adjustment of status petition within the U.S. or consular process an immigrant visa. Consular processing requires that the alien spouse attend an interview at an overseas U.S. consulate office. The adjustment of status process allows the spouse to complete the process inside the U.S.

Conditional Status in Immigration Through Marriage Cases

Individuals who have been married for less than two years prior to their grant of permanent residence are given a “conditional status” green card valid for two years. Within 90 days of the spouse’s green card expiration date, both spouses may file to remove the conditions through Form I-751, Petition to Remove Conditions on Residence. Failure to file for removal of condition will result in termination of permanent resident status for the spouse.

The spouses have the burden of proving that their marriage was entered in good faith (i.e., not for immigration purposes). If U.S. Citizenship and Immigration Services (USCIS) determines that the marriage is fraudulent, the spouse will be placed in removal proceedings and forever excluded from the United States. Requesting permanent residence based upon a fraudulent marriage for the purpose of evading immigration law is a crime. 

In cases where the marriage was entered into in good faith but the spouses separated within two years, USCIS may still allow the parties to file for removal of conditional status. If the parties are divorced, USCIS may exercise its discretion in granting the spouse a waiver to file for removal of conditional status without the other spouse. Grounds for waiver are as follows:

• Deportation would cause extreme hardship to the spouse
• The marriage was created in good faith
• The spouse was a victim of domestic abuse.

Foreigners may be able to immigrate to the United States based on their relationship to a U.S. citizen or legal permanent resident (called a family immigration case). The foreigner may be eligible to immigrate as either an immediate relative to a U.S. citizen or fall into one of the non-immediate relative preference categories. Immigrant visa availability will depend on the family preference category.

Immediate Relatives of U.S. Citizens Family Immigration Visas

There are no numerical limitations to the number of family immigration visas available to immediate relatives of U.S. citizens. This means that if an individual qualifies as an immediate relative to a U.S. citizen, an immigrant visa is readily available for them. Immediate relatives have special priority and do not have to wait for a visa to become available for them.
Immediate Relatives of U.S. Citizens are:

• Spouses
• Widow(er)s
• Unmarried children under 21 years of age
• Orphan to be adopted by a U.S. citizen
• Parents of a U.S. citizen who is 21 years or older

A U.S. citizen may petition to immigrate an immediate relative by filing Form I-130- Petition for Alien Relative and establishing the relationship. Once the I-130 petition for the immediate relative is approved, the immediate relative can apply to become a lawful permanent resident because visas are readily available for immediate relatives.

Although an immediate relative has an immigrant visa readily available, they still have the burden of showing that they are not inadmissible to the United States under any of the grounds listed in the Immigration and Nationality Act Section 212(a) (e.g., criminal, health, or fraud grounds).

Family Preference Immigrant Visas

Foreigners who do not qualify as an immediate relative to a U.S. Citizen may still be able to perform family immigration to the United States based on their relationship to a U.S. Citizen or Lawful Permanent Resident if they fall under one of the family immigration preference visa categories. Preference immigrant visasUnlike the immediate relative immigrant visa category, family preference immigrant visas do have yearly numerical limitations. The annual numerical limitations on family preference immigrants are shown below at the end of each category. Once a family preference category distributes the number of visas allotted that year, they stop issuing visas for that year. Whenever there are more qualified applicants for a category than there are available visa numbers, the category will be considered oversubscribed, and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The yearly numerical limitations can create a significant backlog in some categories.

1. Family First Preference (F1): Unmarried sons and daughters of U.S. citizens and their children. (23,400)
2. Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (age 21 and over) of lawful permanent residents. (114,200) At least seventy-seven percent of all visas available for this category will go to spouses and children; the remainder will be allocated to unmarried sons and daughters.
3. Family Third Preference (F3): Married sons and daughters of U.S. citizens and their spouses and children. (23,400)
4. Family Fourth Preference (F4): Brothers and sisters of United States citizens and their spouses and children, provided the U.S. citizens are at least 21 years of age. (65,000)

A U.S. citizen or lawful permanent resident may petition for a relative listed in one of the four family preference categories by filing Form I-130- Petition for Alien Relative and establishing the relationship. The filing date of the I-130 petition becomes the applicant’s priority date. Even if the I-130 petition is approved, individuals who qualify for a family preference immigrant visa must wait until there is a visa number available before they can apply to become a lawful permanent resident. Immigrant visas cannot be issued until an applicant’s priority date is reached. In specific heavily oversubscribed categories, there may be a waiting period of several years before a priority date is reached. The latest visa priority dates are posted on the U.S. Department of State’s Visa Bulletin.

Under the Immigration and Nationality Act Section 212 (a)(9)(B), certain aliens who are seeking admission to the United States may be inadmissible if they accumulated unlawful presence (present in the U.S. without being admitted or paroled or stayed past the authorized period of stay) via a Provisional Waiver. An alien is inadmissible who:

• was unlawfully present in the United States for more than 180 days but less than 1 year, voluntarily departed the United States and again seeks admission within 3 years of the date of such alien’s departure or removal, or
• has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States is inadmissible.

There are exceptions for this ground of inadmissibility. Still, if an individual does not qualify for one of the exceptions, they are generally not inadmissible unless this ground of inadmissibility is waived.

A request can be made to have unlawful presence ground of inadmissibility provisionally waived prior to a person’s intended departure from the United States. For example, a person who has been residing in the United States undocumented for more than one year and wants to depart the U.S. to attend an interview at a U.S. Consulate office to obtain a green card would generally be inadmissible for 10 years from the date of departure from the U.S. The Provisional Unlawful Presence Waiver allows you to request that the unlawful presence ground of inadmissibility be waived before you depart from the United States.

You may request a provisional unlawful presence waiver (Form I-601A) if you:

1. Are physically present in the United States;
2. Are at least 17 years of age at the time of filing;
3. Have an immigrant visa case pending with the U.S. Department of State and are statutorily eligible for an immigrant visa (immediate relative to U.S. citizen visa, family preference category visa, employment-based immigrants or Diversity Visa selectees);
4. Can show that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent (U.S. citizen and LPR children are not qualifying relatives); and
5. Are not otherwise inadmissible to the United States on other grounds (e.g., national safety, deportation, criminal).

Suppose the provisional waiver is granted before you leave the United States for the consular interview. In that case, it does not guarantee that you will be granted admission back into the United States. The unlawful presence grounds of inadmissibility may have been waived. Still, the consular officer may determine that you are inadmissible on other grounds, such as alien smuggling or prior immigration violations. Please get in touch with us for assistance with your case.