How to Handle Large Age Differences

Posted on February 22, 2012 by Eric Chapman

Many people call my office and request information on how to handle a large age difference between them and their foreign fiance when filing the fiance visa petition.  My answer is always the same: it depends.  The age difference will not be an issue at the USCIS.  The USCIS only screens petitions so they meet the bare minimum requirements.  The stage that the age difference will become an issue is at the fiance visa interview.

Generally, an age difference, by itself, is not a problem, as long as the petitioner and beneficiary can prove that their relationship is bona fide and not entered into for the purpose of gaining an immigration benefit.  However, when their IS a large age difference, the interviewing officer will look more closely at the applicant’s relationship.  Therefore, it is imperative to document the relationship by keeping track of all contacts.  The point is to prove constant and continuous communication while the beneficiary is in their home country and the petitioner is in the United States.  If the couple is not able to show this communication, then they may run into problems at the interview and the visa may be refused.

Large age differences between the petitioner and beneficiary are one of several common problems, couples encounter when filing for the fiance visa.  You can view other common problems here.

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100% Success in 2011!

Posted on January 18, 2012 by Eric Chapman

We had a great year in 2011.  Every single fiance visa was issued in 2011.  Not only that, but they were all approved on the first day of the interview.  None of my clients were denied and none of them were asked for additional information or to return to the consulate with additional documents.

A few of the tougher cases I handled this year include:

1. US Citizen woman filed for her Moroccan fiance who was 25 years younger than her.

2. US Citizen woman (US Army Veteran) filed for her Nigerian fiance living in Qatar.  This was an interesting case because the fiance living in Qatar also lived in Afghanistan for a few years.  As required by the State Dept., he needed to obtain a police certificate from Afghanistan to present at his interview.  Afghanistan refused to issue such a document.  I was able secure a waiver of the police certificate requirement.

3. US Citizen man filed for his Ukrainian fiancee who had been a fiance visa beneficiary previously.  In fact, this beneficiary also entered the USA on the fiance visa and actually married and divorced her American husband.  I was able to secure the fiance visa on behalf of the Ukrainian woman.

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What happens when a fiance visa petition is refused at the interview?

Posted on July 26, 2011 by Eric Chapman

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.

So what happens when it is refused? The fiance visa petition is sent back to the USCIS with a reccomendation to be revoked. What is being revoked? The initial USCIS approval. As you know, the fiance visa process is a three phase process that begins with the filing and eventual approval by the USCIS.

What is the process for fiance visa revocation? Once an interviewing officer at a US Consulate abroad refuses to issue the visa, they prepare a memorandum that details the specific reasons why the fiance visa approval should be revoked. It is sent to the National Visa Center and then forwarded to the Service Center. Once the Service Center receives the petition, it will do one of two things:

  • The USCIS will find no reason to revoke the approval and send the petition back to the Consulate. A notice will be sent to the United States petitioner advising that the USCIS decision will be reaffirmed ; OR
  • The USCIS will issue a Notice of Intent to Revoke (NOIR) to the United States petitioner and request additional evidence to overcome the consular’s recommendation to revoke approval. If the petitioner does not overcome the basis for the revocation, or fails to timely respond, a decision of revocation will be issued to the petitioner on Form I-292. The petitioner may file an appeal on a decision to revoke a petition just as if the petition had been denied originally. All appeals to the Board of Immigration Appeals (BIA), including appeals to revocations, must be filed within 30 days pursuant to 8 CFR 1003.3 and revocation appeals that are submitted to the AAO must be filed within 15 days pursuant to 8 CFR 205.2. Most courts have determined that a final decision by USCIS to revoke an immigrant visa petition is not reviewable.

    • 

What will the beneficiary be told at the interview?

When a consular officer returns an immigrant visa petition to USCIS for reconsideration and possible revocation, he or she will typically deny the visa application on the basis of INA section 221(g) (temporary refusal of immigrant visa), pending USCIS review of the returned petition. The consular officer may also deny the visa application on another basis, if appropriate. If USCIS later reaffirms the approval of the petition, USCIS will send the petition back to DOS, at which point the consular officer will either accept the petition as valid and adjudicate the visa application to completion, or present USCIS with new evidence that was not previously considered. When a DOS consular officer denies an immigrant visa application, he or she will provide the beneficiary with a refusal letter listing the section of law under which the visa was refused.

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K2 Visa Holders Do Not Age Out

Posted on June 26, 2011 by Eric Chapman

This was held by the Tenth Circuit, Court of Appeals back in 2010.  Now, the Board of Immigration Appeals (BIA) has confirmed and held the same.  Decided on June 23, 2011, the BIA, in Matter of Hieu Trung LE, held that a K2 beneficiary must only enter the United States before they turn 21.  Prior to this decision, K2 beneficiaries nearing their 21st birthday prayed their Adjustment of Status application sped through the USCIS at light speed.  If they turned 21 before the USCIS approved their application, they “aged out” and were not able to obtain their green card.  This decision abolishes that terrible rule and allows K2 beneficiares to adjust status and get their green card, even if they have turned 21, provided they entered the US before their 21st birthday.

It is important to note that if a K2 visa is issued before the beneficiary is 21, but after visa issuance the K2 visa holder turns 21, they will not be allowed to enter the United States.  The K2 visa holder must be under 21 when they enter the United States.

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Medical Examination Requirements for Fiance Visa Applicants

Posted on May 20, 2011 by Eric Chapman

I often receive questions from fiance visa applicants about the medical exam.  Generally, the beneficiaries are curious as to the process of the exam, how much the exam will cost, and what medical conditions will disqualify the applicant from receiving their K1 visa.

Every single fiance visa applicant is required to undergo a medical examination by a US State Department Panel Physician prior to their fiance visa interview.  Some applicants believe they can have their primary care doctor complete the examination, which is false.  It MUST be completed by a doctor that the US Consulate has certified is competent to complete the examinations.  Each US Consulate has a list of State Dept. Panel Physicians and the applicant must choose one of those doctors to complete the exam.

What is the purpose of the medical exam?

The purpose of the medical exam is to determine whether the fiance visa applicant has a medical condition that renders him or her ineligible to receive the visa (an inadmissible condition).

What happens at the medical exam?

The fiance visa applicant must show their passport and appointment letter to the doctor during the examination.  While some countries allow fiance visa applicants to complete the exam without an appointment letter, it is the general rule of thumb that an interview must be scheduled.  Therefore, it is important to call the Panel Physician’s office and see what they specifically require.

The examination includes:

  1. A complete medical history;
  2. A complete immunization history;
  3. A physical examination;
  4. A mental examination;
  5. A Full-Size Chest Radiograph
  6. Serologic Test for Syphilis
  7. Sputum Smear Examination
  8. Administration of immunizations (K1 visa applicants are not required)

 Immunization Requirements for Fiance Visa Applicants

Vaccination requirements do not apply to fiance visa applicants. However, it is suggested that they receive them during this examination.  The reason being that following entry to the United States and after the marriage to their US Citizen fiance, fiance visa holders must file the adjustment of status application to receive their green card.  It is at this time the US Government requires the applicants to receive the required vaccinations.  This information is submitted as the Vaccination Supplement. If the applicant has already received their vaccinations during their Panel Physician medical exam, they do not have to receive these vaccinations again. 

Therefore, it is advised that fiance visa applicants receive the required vaccinations during their Panel Physician medical exam and obtain a record of these vaccinations on a form DS-3025, Vaccination Documentation Worksheet. 

What are the required vaccinations?

  1. Mumps
  2. Measles
  3. Rubella
  4. Polio
  5. Tetanus
  6. Diphtheria
  7. Pertussis
  8. Maemophilus Influenzae Type B
  9. Rotavirus
  10. Hepatitis A
  11. Hepatitis B
  12. Meningococcal Disease
  13. Varicella
  14. Pneumoccal
  15. Influenza

What medical conditions render an applicant ineligible to receive a visa? 

  1. Chancroid
  2. Gonorrhea
  3. Granuloma Inguinale
  4. Hansen’s Disease (Leprosy) Infectious
  5. Lymphogranuloma Venereum
  6. Syphilis, infectious stage; and
  7. Tuberculosis, active.

As of January 4, 2010, HIV is no longer a condition that will render an applicant ineligible to receive a visa.

Other conditions include past drug use, past alcohol abuse, and certain mental health disorders. 

How much will the exam cost?

Each doctor sets their own fees.  Generally, expect to pay between $150 to $350.

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Vaccination Supplement for K-1 Fiance Visa Holders

Posted on April 8, 2011 by Eric Chapman

Part of the immigration process requires the beneficiary to undergo a medical exam by an approved doctor.  Depending on where the beneficiary is located, that doctor must either be approved by the Department of Homeland Security or Department of State.  For fiances and spouses waiting for their interview at a consulate, the medical exam must be completed by a US Department of State Panel Physician.  If the spouse is already in the United States, then the medical exam must be completed by a USCIS Civil Surgeon.

Medical examinations completed by a State Department Panel Physician are not complete medical examinations; they are merely designed to screen for certain medical conditions relevant to immigration law.  Pursuant to the Center for Disease Control (CDC), the medical exam consists of a physical examination, an evaluation (skin test/chest x-ray examination) for tuberculosis, and blood test for syphilis.  Furthermore, the CDC requires a series of vaccinations.  The vaccination requirements include vaccines recommended by the Advisory Committee on Immunization Practices (ACIP).

Medical examinations completed by a USCIS Civil Surgeons are generally the same as those completed by Panel Physicians.  The difference is the medical examination that a K-1 fiance must complete after their marriage.

Prior to the consular interview, a beneficiary of a K-1 visa petition must undergo a medical examination by a Panel Physician.  After that beneficiary enters the United States and marries their fiance, they must apply to adjust their status to a legal permanent resident to obtain their green card.  When the application to adjust status is filed, adjusting K-1 fiance visa holders, must also file a “Vaccination Supplement”.

A Vaccination Supplement is a form that a USCIS Civil Surgeon must fill out on behalf of the adjusting K-1 fiance visa holder indicating that they have received all of the required vaccinations, as required by current immigration law.  Because the adjusting immigrant received a medical examination prior to their consular interview, they are not required to undergo another medical exam.  However, because the K-1 fiance visa is a temporary visa, the medical exam that they received in their home country did not include a check for all of the necessary immunizations.  The vaccination supplement is designed to ensure all applicants for adjustment of status have received all of the required vaccinations.  The vaccination supplement is completed on the I-693, Medical Examination Form, with only the vaccination and certification portions required to be filled out.

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Transgender Couples Filing Fiance Visas & Marriage Visas

Posted on April 8, 2011 by Eric Chapman

Transgender couples face many obstacles in their journey through the immigration process.  Most of those obstacles take place before the petition is even filed with the USCIS.  Amended birth certificates, letters from doctors performing the sex change surgery, updated passports reflecting the new gender, and legal research on marriage and birth certificate laws should all be obtained and performed in preparation of filing the petition.  While it may not be easy, it is certainly possible for a married couple or engaged couple to successfully complete the immigration process where one partner is transgender.

 Pursuant to the USCIS Adjudicator’s Field Manual (AFM) Chapter 21.3(a)(1)(J):

“[A] claimed marriage between two persons of the same birth sex, one of whom has undergone sex reassignment surgery, is valid for immigration purposes if the petitioner establishes by a preponderance of the evidence that:

  1. One of the claimed spouses has, in fact, undergone sex reassignment surgery; AND
  2. That person has taken whatever legal steps exist and may be required to have the legal change of sex recognized for purposes of marriage under the law of the place of marriage; AND
  3. The marriage is recognized under the law of the place of solemnization as a legally valid heterosexual marriage.

This guidance also applies to the adjudication of a Form I-129F on behalf of a K-3 spouse or fiance(e) of a citizen.  In the case of a proposed marriage between two persons of the same birth sex, one of whom has undergone sex reassignment surgery, the Form I-129F can be approved if the petitioner establishes that that person’s legal sex has changed and the proposed marriage will be recognized under the law of the place of solemnization as a legally valid heterosexual marriage.”

The first requirement is to prove that the spouse has undergone the sex reassignment surgery.  This is accomplished by obtaining a doctor’s letter, as well as all medical records reflecting the operation. 

The second requirement may prove to be a little difficult depending on where the transgender spouse was born.  If the transgender spouse was born in a state that recognizes a change in gender, then all that is needed is an amended birth certificate.  However, if the state does not recognize changes in gender, other documentation must be acquired proving  the legal change of sex.  Thorough research of the law governing marriages in the state where the couple intends to marry is vital.  If the transgender future spouse can obtain a legal document showing the change of sex in the state of intended marriage, then obtain it!  Other documents that the transgender future spouse should try to obtain reflecting their new gender are: U.S. Passport, U.S. driver’s license, and a court-ordered change of sex.

The third requirement is to prove the marriage is recognized under the law of the place of solemnization as a legally valid heterosexual marriage.  The USCIS AFM Chap. 21.3(a)(1)(J) lists states that recognize transsexual marriages as valid heterosexual marriages and states that do not.  The list is valid as of November 2008, so other states may have decided on the issue since that time.

States that DO recognize transsexual marriages as valid heterosexual marriages:

  • North Carolina
  • New Jersey
  • Maryland

States that DO NOT recognize transsexual marriages as valid heterosexual marriages:

  • Florida
  • Illinois
  • Kansas
  • Ohio
  • Tennessee
  • Texas

What does a couple do if there state is not listed? Research the marriage statute and relevant case law in their state and include their research with their petition.

Lastly, when preparing to file a petition that deals with this issue be sure the timeline is correct.  For example, the legal change of sex must have occurred before the marriage.  That the sex reassignment surgery happened before the marriage will not suffice.  Why?  Legally speaking, if the legal change of sex occurred after the marriage then both persons in the marriage were married as a homosexual couple.  The Defense of Marriage Act prohibits homosexual marriages to be valid under immigration law.

The intricacies are complex in dealing with a transgender partner.  This should not prevent the couple, however, from obtaining immigration benefits.  If done properly, and in the correct order, the immigration process for spouses and fiance(e)s in transgender relationships is relatively painless.

Posted in K1 Fiance Visa, K3 Marriage Visa | Comments Off

How would a government shutdown impact visa petitions?

Posted on April 7, 2011 by Eric Chapman

As the clowns in Washington debate and argue over the federal budget, the potential for a government shutdown is becoming a real possibility.  If no deal is struck by Friday, April 8, the government will shutdown by Saturday, April 9.  However, many individuals have pending petitions with the USCIS and US Consulates abroad.  If the government were to shutdown, how would this impact those pending petitions?

For petitions that are pending at the USCIS, the government shutdown will not affect them at all.  The USCIS obtains its funding from the filing fees of the petitions it accepts.  For this reason, a government shutdown will not impact the processing of fiancé visa petitions.

However, once those petitions are approved and are sent to the US Consulate abroad, the government shutdown will affect the processing of those petitions.  Consulates are a part of the US Department of State.  On April 7, 2011, the State Dept. published a guidance cable on its website that all embassies and consulates are to follow.  The cable states, “Consular sections should cease the provision of routine consular services.”  Therefore, pending petitions at consulates abroad will sit idle until Washington agrees on a budget.

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Fiance Visas in 1923

Posted on March 19, 2011 by Eric Chapman

An August 2, 1923 article published in The Spokesman-Review, a newspaper in Spokane Washington, detailing how 50 Syrian and Armenian “Picture Brides” arrived at Ellis Island.

Also, from Ellis Island, a sign that explains how “Picture Brides” were “courted through the mail by immigrants.”

A far cry from the 2-year meeting requirement from today.

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What is the I-864, Affidavit of Support?

Posted on March 6, 2011 by Eric Chapman

The affidavit of support is a legally enforceable contract between the petitioner bringing their relative into the United States and the United States government.  Generally, the petitioner promises to financially support their relative when they enter the United States, until their relative: A) becomes a United States citizen or B) has worked 40 quarters, which is generally 10 years.

In order for a petitioner to be able to file an I-864, Affidavit of Support on behalf of their relative, they must meet certain minimum income requirements.  These income requirements vary depending on the year when the I-864 is filed, the number of relatives the petitioner is sponsoring, the petitioner’s household size, and the state in which the petitioner resides.   Each spring, the USCIS publishes the income requirements on a form called the I-864P, Poverty Guidelines.  The I-864P establishes the minimum income requirements a petitioner must meet to be able to file the affidavit of support on behalf of a relative.  For example, in 2011, an unmarried petitioner with two children, residing in New York, who is petitioning for one relative to enter the United States, will need to earn $27,937 per year. 

If a petitioner is unemployed or their income does not meet the minimum threshold, the petitioner still may meet the income requirements through the use of their assets.  Some qualifying assets may be cash in a bank account or investments in stocks, bonds or CDs.  When using assets to meet the income requirement, generally, the value of the assets must exceed five times the income requirement minus the petitioner’s income, unless the relative is the spouse or child that is at least 18 years old, of the petitioner.  When the relative is the spouse or child of the petitioner, and the petitioner is a United States citizen, the value of the assets must exceed only three times (NOT five times) the income requirement.

If a petitioner is unemployed, their income does not meet the minimum threshold, and they cannot use their assets to meet the income requirement, a joint sponsor may be used.  A joint sponsor agrees to accept financial responsibility for the petitioner’s relative.  The joint sponsor must independently meet the income requirements.  They may not combine their income with the petitioner’s income.

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