Critical Issues Facing Foreign Fiancés of US Citizens

This article discusses some common immigration law issues facing foreign nationals and their quest for green card in order to be reunited with their US Citizens fiances.

The union of a US Citizen and a foreign national is one full of heightened anticipation. After all, it is the blend of two cultures into a new one and often the acceptance of religious and lingual differences. Suffice it to say, such unions bring together unique issues that are both joyful and at times, stressful. In the midst of these forces, US Citizens find themselves dealing with yet another complex system, the US immigration laws, to facilitate their union with their foreign significant others. Depending on where their foreign spouse or fiancés are located, the process to legalize the foreign national takes on different procedural and substantive strategies. This article describes different solutions for US Citizens wishing to be united with a US Citizen fiancé or spouse.

Traditionally, when individuals get engaged, the next logical milestone in their relationship is to get married. The plans to get married, however, do not normally coincide with the immigration processes imposed by bureaucratic agencies. For instance, a K-1 fiancé visa could take more than 6 months to enable to foreign fiancé to enter the US. Unfortunately, couples sometimes resort to solutions that may be contrary to acceptable legal standards which could jeopardize their chances of receiving proper immigration documents. Such attempts are often caused by ignorance or misunderstanding of the manner in which US immigration rules work.

For example, fiancés of US Citizens whose last entry in the US was procured by utilizing a visitor’s visa or a visa waiver pilot program, should exercise extreme caution when attempting to marry once in the US and subsequently apply for permanent residence. US immigration regulations could treat certain attempts by visitor entrants to subsequently legalize as means to circumvent the immigration laws by using the visitor visa program to gain immigration access to the US. In other words, a foreign fiancé who decided to enter the US on a visitor’s visa and shortly thereafter marries a US Citizen and applies for green card risks being charged with procuring a fraudulent entry into the US. The exception to this rule is the passage of time and “changed circumstances” from the time of entry and the time of applying for permanent residence. So long as the foreign national could prove that her initial entry in the US was in good faith, and that the plans to get married did not precede her most recent entry, then the application may be successful. Our law firm had represented many clients and successfully proved the existence of “changed circumstances” with substantial documentation to negate any hint of misfeasance.

Foreign fiancés of US Citizens should avoid entering the US on a visitor’s visa as such entry is wrought with potential legal obstacles. As explained, if the reader’s fiancé or you are a foreign fiancé and you entered the US on a visitor’s visa or a visa waiver program, you should carefully consult the facts of your situation with an experienced lawyer prior to applying for permanent residence.

The recommended process for foreign fiancés is to apply for a “K-1” fiancé visa. To qualify, the couple must have met at least once within the two prior years, must be able to enter into legal marriage at the time of the application and there are no legal impediments to the marriage itself. The fiancé visa process begins by applying for a fiancé visa before the USCIS by providing the aforementioned evidence. Once the fiancé visa application is approved, the application will then be forwarded to the US consulate nearest to the residence of the foreign national to conduct an interview. The foreign national must have a medical examination and pay a processing fee. The interview before the US Consulate is intended to test the truthfulness of the relationship. Once approved the foreign national’s passport will be stamped with a K-1 visa. Once the foreign national enters the US, she or he has only 90 days to marry the US Citizen AND apply for adjustment of status to that of a permanent residence, or return back home.

It must be remembered that a fiancé visa recipient can never change his status to any other visa type of any kind other than through a marriage to the US Citizen who initially processed the fiancé visa petition. Take for example Majeed, a Moroccan national whose US Citizen fiancé, Sally, met him was vacationing in Casablanca. Sally instantly fell in love and petitioned for Majeed to enter the US on a fiancé visa. Majeed does enter the US on a fiancé visa and after living with Sally for 60 days, decides that he could not marry her. Instead of returning back to Morocco at the end of the 90 day period, Majeed remains in the US. Majeed remains in the US for 2 years after he breaks up with Sally. He now meets with Patricia and both fall in love and Majeed is certain that Patricia is the one for him. But Majeed’s dreams to receive permanent residence soon evaporate after visiting with an immigration lawyer.

Majeed could not, by law could not change to any other visa type because he initially entered the US on a fiancé visa petitioned be Sally. In order for Majeed to receive permanent residence, he must depart the US and apply for the same at a US Consulate. But, because Majeed overstayed his visa by more than a year, The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) barras him from receiving permanent residence for 10 years. Hence, Majeed is in a catch 22: if he stays, he could not legalize and if left the US to legalize, he could not return because of the punitive provisions of IIRIRA.

US Immigration laws are complex. US Citizens wishing to sponsor a foreign fiancé should consult with competent immigration attorney prior to embarking on this journey. The Law Firm of Shihab & Associates, Co., LPA is experienced in all matters relating to family immigration law including fiancé visa and green cards through marriage to a US Citizen. Our immigration law practice spans the entire nation. We have represented couples all over the United States and abroad to make certain that no costly mistakes are made in this process. Call our law firm toll free at (888) 915-5057 to request a free initial consultation.