K-1 Visas: Hire an Attorney to Avoid Delay and Denial

March 10, 2011

K-1 Visas: Hire an Attorney to Avoid Delay and Denial

Gerard Ungerman, a French-born documentary filmmaker who has called the United States his home for more than two decades, is being denied entry back into the country because his K1 fiancee visa application has been denied, reports KHS TV.

Ungerman had been working to get a K1 fiancee visa since 2009 and was told in the spring of 2010 that he had been approved; he was reportedly told he needed only to do a final interview and pick up paperwork at the U.S. Consulate in Paris. What began as a three-week visit to his native country has become an extended struggle for him to get back to his fiancee and her children.

According to the Bureau of Consular Affairs, there were more than 300,000 ineligibility findings for nonimmigrant visa applicants and more than 1.86 million ineligibility findings for immigrant visa applicants in 2010. Applications that are ultimately approved may have initially been subject to delay or denial.

K-1 Nonimmigrant Visa

The K-1 nonimmigrant visa is a visa available to certain foreign citizen fiance(e)s of United States citizens. The foreign citizen must intend on marrying the U.S. citizen and both parties must be legally able to marry. The visa allows the fiance(e) to enter the United State and marry his or her sponsor within 90 days of arrival. After the marriage, the foreign citizen then applies to the United States Citizenship and Immigration Services (USCIS) for adjustment of status to a legal permanent resident (LPR). If there are children, the children may be eligible for K-2 visas.

Generally, the foreign-citizen fiance(e) and citizen sponsor must have met in person within the last two years. If the couple is unable to meet this requirement or the couple has concerns about this requirement, they should consult with an immigration lawyer to discuss whether they can satisfy the limited exceptions to this general rule.

Delay and Denial of a K-1 Visa Application

A K-1 visa may be denied at the USCIS level or at the U.S. Consular processing level. Denial at the USCIS level is appealable. In the alternative, some may choose to abandon the original filing and file a new petition. An attorney can help clients avoid missing important appeal deadlines and counsel clients on how to balance the considerations of the added delay of re-filing against the likelihood of an unsuccessful appeal.

Denial at the Consulate level is reviewable by the Consulate General, Supervisory Consular Officer or the USCIS. It may take two years or more for the USCIS to receive and take action on a denied petition. Thus some applicants may choose instead to withdraw the petition and file again.

Even after the USCIS has approved a petition for visa application, the U.S. Consulates abroad may refuse a visa based on the Immigration and Nationality Act (INA), section 221(g) and request that the USCIS revoke the petition that was earlier approved. A 221(g) refusal occurs when the interviewing Consular officer believes that the relationship is not bona fide. The reasons offered for refusal are frequently vague and can lead to additional confusion.

Ungerman and Wear to Appeal With Help of Attorney

Ungerman's fiancee told KHS that at the final interview, the Consulate officer "looked at all his stuff and out of nowhere said it looked like [Ungerman was] illegal while [he was] waiting in California for all this to get processed. So we're going to deny this application."

The denial does not call into question the relationship between Ungerman and Wear but rather says his absence does not present a hardship for Wear and her family. Faced with the potential for Ungerman to be prevented from returning, even for a visit, for 10 years, Ungerman and Wear have hired an attorney to assist with an appeal and new waiver.

Consult with an immigration attorney to determine how best to demonstrate a bona fide relationship, including presentation of evidence such as correspondence, phone calls or chat logs, proof of gift purchases, and statements about how the couple met and maintained their relationship. Relying on the advice of a K-1 visa attorney can prevent serious hardship along the path to U.S. citizenship for fiance(e)s.

Article provided by Lawrence R. Holmes Immigration Attorney
Visit us at http://www.kvisausa.com/