Dual Intent Visas for Immigration

Nailia-visa.

Often, when coming to America, all visitor visas are labeled as Non-immigrant visas. This means that the person applying for the visa must demonstrate that they have no intentions on becoming a US citizen or permanent resident; basically no intentions on immigrating to America permanently. With that, the applicant almost always must demonstrate strong ties to their home country and show the visa interview officer that they will certainly return to their home country as soon as they are done with whatever they were doing in America. With these visas, it is always dangerous if you showed any intentions on immigration, such as having applied for green card or having a serious relationship with someone who lives in America. If you enter the country on a non-immigrant visa and you attempt to apply for green card too soon, such as within 90 days, your green card application will be denied because you entered the country under false intentions (you claimed you don’t want to immigrate to America but you filed for immigration). Other situations that may cause you to be denied entry is being on a non-immigrant visitor visa and file for green card, then leaving for a vacation/visit and re-enter on the same non-immigrant visa. If you already filed for a green card, you already demonstrated without a doubt that you have full intentions on immigrating to America. The USCIS/CBP will NOT let you in the country on a non-immigrant visa!

So, the main point is that you must always use the appropriate “intentions” with the appropriate visa. This means that if you do intend on immigrating, you should use a immigration visa. If you really just want to visit/stay in America for a period of time and then return to your home country, then by all means use the non-immigrant visitor visas. However, there are some exceptions to this rule. The USCIS recognizes that there are some visas that really don’t apply to these “intentions” rules. These visas are categorized as non-immigrant visas, but the USCIS is fully aware and probably expect the visa holder to file for green cards in the future. For some reason this is OK, probably because USCIS expects what you will do, instead of trying to outsmart them. These visas are called dual intent visas. Dual intent visas allows the individual to enter as a non-immigrant (meaning they intend on returning to their home country after their stay is over), but with the option to file for green cards if they are able to. Here are some of the common dual intent visas:

H-1B and H-4 Visas

The most common dual intent visas has to be the H-1B visas. (Other H visas do not qualify, like H-2 H-3)These are the visas issued to skilled workers that are taking jobs that require specialized skills which no Americans could be found to do. The majority of these visas are of Indian nationals. They are your IT workers, software developers and anything to do with engineering. Although these visas are issued under the pretense that these skilled workers are only working temporarily in America, the USCIS knows very well that their employers usually will file a EB-2 based green card for them. So, even though H-1B is categorized as a non-immigrant visa, it is a dual intent visa meaning that the visa holder is free to demonstrate their intentions on becoming a permanent US resident at any time. If the H-1B visa holder files for green card, they can still leave and re-enter the country on the H-1B visa because the USCIS knows that they have immigration intentions. H-4 visas are simply the dependent visas of the H-1B visa holder. Recently, the USCIS even changed the rules for H-4 visas regarding employment so that any H-1B visa holder who files for green card, can also apply for their H-4 dependents to begin working legally without restrictions in America, before the green card application is issued. Therefore, for a H-1B worker entering America, he can say to the CBP officer that he wants to permanently immigrate to America upon his entry and the CBP officer would just give him a smile.

K Visas

The next most common dual intent visa is the K visas. This visa, the K-1, K-3 and K-2, K-4 visas (K-2 is the dependents of K-1, K-4 is dependent of K-3), really should be a fully stated immigrant visa. The K visa is designed for someone who is living outside America to come to America to get married to a US citizen or someone who is already married to a USC and has a green card application pending. If this is not a clear intention of immigration, I don’t know what is. However, for some reason, the USCIS classifies K visas as non-immigrant visas. Maybe it is because technically the K-1 visa holder has 90 days to decide if they want to marry the US citizen and live in America. There are times when people get here, realize their US citizen fiance is not good, or that they don’t like America, and decide to leave. Maybe K-3 visa holders come to America and realize their home country is more suitable and will convince the USC spouse to leave. Regardless, anyone who enters on a K visa is considered dual intent and the USCIS will have no issues with them filing for green cards.

L Visas

Another common dual intent is the L visa. The L visa is designed for a multinational corporation to transfer its employees from another country into its American offices. The L visas are issued to people who transfer, under the same company, from a foreign country to America. Because often the transfer results in a permanent position for the L visa holder, the company usually files a EB based green card for the employee as well. Because of this, the USCIS views L visa as dual intent and that if the visa holder files for green card at any time, it is OK. If the L visa holder attempts to re-enter the country after a green card application has been filed, that is OK too.

V Visas, O Visas, P Visa an E Visas

The V, O, P, and E visas and their dependent versions are all considered dual intent. These visas, however, are not common. V visas are for spouses and dependents of a US permanent resident to come to America to join the US permanent resident while their green card is pending. However, these visas are practically non existent because it is only issued for those who filed a I-130 before December 21, 2000. The O visas are for people who are extraordinary in their professions, like Nobel Prize winners, Olympic athletes, etc. These people can immigrate to America with ease because of their talents and achievements. America wants the best people and will give green card to those who demonstrate it. The P visas are for famous celebrities, entertainers, movie stars, athletes to visit and stay in America if they wish. Lastly, the E visas are for serious investors who will invest large sums of money in American corporations or startups. They are usually the ultra wealthy and probably don’t want to immigrate to America because of tax reasons.

In conclusion, depending on what visa you entered America with, you have to be careful with your immigration applications and intentions. If you did not enter America on any of the visas listed above, you have to be really careful in attempting to file any immigration application. If you enter as a non-immigrant and try to outsmart USCIS and file for permanent immigration, chances are you will be denied. The only exceptions are the dual intent visas above, and you may breath a sigh of relief if you have one of the above visas and are undergoing a green card application.

Guide to getting a K-1 visa for your fiance

The K Visa, bringing your loved one to America

On your random trip abroad, chances are you will meet local people of different cultures and background. Sometimes, even your regular trip to a destination that you have been many times may produce a chance meeting with someone who might just be the person that you are looking for to spend your life with. You might meet such a person during your train ride, airplane ride or a bus ride. Now, if that person was a US citizen also, you should congratulate yourself because you just saved $1310 USD at the time of this writing (8/2014). Chances are, though, that you are reading this because the person is NOT a US citizen and they do NOT have any way to come to America to live except through marriage with you. Now, you can do this two ways. The person can come to the US on a tourist/student visa and after 90 days you guys can get married and file for Adjustment of Status (AOS) and get a green card this way. This is the traditional marriage through green card. Just follow my most comprehensive guide and you should be able to do it smoothly. However, if the individual does NOT want to come to America on a student/tourist visa, but rather come with the full intention of getting married and immigrating to America permanently, the K-1 visa is the visa to go with.

The K-1 visa is actually a non-immigrant visa intended for a fiance of a US citizen to enter the United States and get married within 90 days and apply for AOS. Because most people who enter on a K-1 visa end up getting married and filing AOS, the K-1 visa is actually handled by the immigration visa section of the US Embassy/Consulates. Officially it is classified as non-immigrant because technically the individual could come to America, and realize they made a mistake because the US citizen they met is an asshole, and leave the country without immigrating. The K visa also has a K-2 version which is for the dependents of the fiance if they also choose to immigrate to America. Keep in mind the dependents (children) must be under 21 and unmarrie to accompany the fiance to America. The K visa, along with a few others, are one of the non-immigrant visas that are restricted if you have a J-1 2 year home residency requirement. This makes sense because again, a K-1 visa holder typically ends up getting married to a US citizen and filing for AOS. Remember, you must be a US citizen to file for a K-1 visa; permanent residents are NOT eligible to file a K-1 visa for their fiance.

To get started, gather some of the necessary supporting documents of your intention and relationship:

  • Declaration of how you two met in the last 2 years: one of the requirements is that you and your fiance must have met in person within the last 2 years before you started to apply for the K-1 visa. This requirement can be waived if strict customs of the finance’s culture precludes you two from meeting. The declaration only has to document your story and relationship and then it must be signed and dated. The below is a sample statement:

Dear Sir/Madam,

I, [name], intend on sponsoring my fiance, [fiance name], for a K-1 visa to enter the United States for the purpose of marriage and immigration. We met in [month, year] during my trip to [country] while I was [purpose of the trip]. [Provide details of your first meeting, such as: During my trip to the Gambia, I went on a white-water rafting excursion on the Gambia River and my fiance was the one of the staff members who was guiding the trip. My fiance and I got to bond and talk and soon we made plans to meet up again during my stay in the Gambia. The attached are my excursion photos with my fiance as well as my plane ticket that I used to travel to the Gambia during May 2012]. I have attached [copies of supporting documents, see next section] for your review. We have been in an established bona fide relationship since [month, year] and also provided additional documentation of an on-going relationship. Please review my application and process my fiance’s K-1 visa application.

Thank you,

Sincerely,

[Your Name], signed and dated.

  • Supporting documents for initial meeting and on-going relationship: the more detailed and thorough your documents are, the better chances that your application will go smoothly without  a need for Request For Evidence (RFE). An RFE requires you to provide more documentation to prove your application is genuine and adds more time to your application. You should keep all originals and send in copies. Sometimes an RFE might ask you to send in the original, in which case you must. For your initial application though, just send in copies. You can place post-its or highlight the important section of these documents that helps supporting your application. The following are a list of documents that you should get copies of for your application:
    • airplane tickets and boarding passes
    • train passes
    • bus passes with dates
    • hotel receipts with dates
    • passport stamps with dates
    • photos of you and your fiance together (write date and location on the back)
    • photos of the engagement (write date and location on the back)
    • letters exchanged
    • emails exchanged
    • copy of engagement ring receipt
  • Original statements of your intent on marriage: both you and your fiance must provide an original statement declaring an intent on marriage within 90 days of entering America. The below is a sample statement. Remember, both you and your fiance must write one. Both originals must be sent with the application:

Dear Sir or Madam:

I, (applicant’s or beneficiary’s name), do hereby state that I am legally able and willing to marry (petitioner’s or beneficiary’s name), and intend to do so within 90 days of my arrival into the US using the K-1 visa.

Sincerely,

(Signature)

(Print name)

Now, you need to gather some civil and financial documents which validates your identity and citizenship, as well as your ability to marry your fiance and your ability to support the finance:

  • 1 passport style photo. Check my guide here to make your own and save some money
  • Copy of birth certificate of the US citizen. If the US citizen is not born in the US, then a copy of the the US citizen’s naturalization certificate. If the certificate is not available, you can attempt to copy the identity page of your US passport. This is the last resort and your application could be put into question.
  • Copy of any final divorce certificates of all previous marriages or death certificates of previous marriages if the spouse had died. This is to ensure that you are not currently married to anyone else as the US legal system does not allow one person to be married to multiple people.
  • If the US citizen had changed their name due to previous marriages, then all legal documents regarding the name change such as marriage certificate, adoption decree or court order must also be submitted (copies).
  • If the US citizen was convicted of any crimes, then all court documents regarding the charge of the crime and the disposition of any convictions must also be submitted.
  • Past 2 years of Federal tax return
  • Proof of employment that can be a letter from the employer or last 2 pay stubs or the W2s that you have received for tax filing.
  • bank statements that show current balance, total deposits for the past year and the date of the account opening.

Your foreign fiance also needs to gather a few important documents:

  • 10 passport style photos. Check out my post on how to make your own passport style photo to avoid extra costs. Of course, if the fiance’s home country has a very cheap way of making passport photos, then by all means let a professional do it. Mail this photo to the US citizen because the US citizen needs to submit the photo with the initial application
  • Document all pass immunizations as per recommended adult immunizations by the CDC. There will be a medical examination performed and if any recommended immunizations were not documented or performed, the fiance must have the immunization before they can be permitted to enter America
  • Copy of any final divorce certificates of all previous marriages or death certificates of previous marriages if the spouse had died. This is to ensure that you are not currently married to anyone else as the US legal system does not allow one person to be married to multiple people
  • If the fiance had changed their name due to previous marriages, then all legal documents regarding the name change such as marriage certificate, adoption decree or court order must also be submitted (copies)
  • A passport valid for travel for at least 6 months beyond the intended entry date into America
  • Police certificates from the foreign government indicating that the fiance is not a criminal or have been convicted of serious crimes in the past. Also need this from any country that the fiance had stayed for more than 6 months since age 16.
  • Payment of $265 at the time of writing, check http://travel.state.gov/content/visas/english/fees/fees-visa-services.html to confirm.

Step 1 – US citizen files for petition

Now, after all the above listed documents have been gathered and ready, here is a final checklist for the first initial application.

The US citizen will submit the following to USCIS:

  • Cover letter detailing the application contents. Here is a great example.
  • Check made payable to USCIS. Currently $340 as per http://www.uscis.gov/i-129f
    - A completed I-129F. Get it from http://www.uscis.gov/i-129f
  • Declaration of how you and your fiance met
  • Original statements from both the US citizen and the fiance declaring an intent to marry
  • Proof of having met in the last 2 years
  • G-325A for both the US citizen and fiance. Get it from http://www.uscis.gov/g-325a
    - 1 passport style photo of the US citizen. On the back,  write the US citizen’s name
  • 1 passport-style photo of the fiance. On the back, write the fiance’s name
  • Copy of the US citizen’s birth certificate, naturalization certificate or passport ID page
  • Copy of any final divorce decrees or death certificates documented the termination of any previous marriages
  • Copy of any legal name change court orders, marriage certificates or adoption decrees
  • Copy of any final court orders showing any criminal charges and conviction dispositions
  • G-1145 E-notification. Get it from http://www.uscis.gov/g-1145

Make 2 copies of each document submitted, you will keep 1 copy and the other copy should be mailed to your fiance in the foreign country. The fiance should have all the documents that you submitted as well to confirm/review your application.

Mail the application to the following address:

For U.S. Postal Service (USPS): (I recommend using Priority Mail, cheap and fast)

USCIS

P.O. Box 660151

Dallas, TX 75266

 

For USPS Express Mail and courier deliveries:

USCIS

Attn: I-129F

2501 South State Highway 121 Business

Suite 400

Lewisville, TX 75067

 

Step 2 – Fiance prepares for interview in foreign US embassy/consulate

After the I-129F package has been received, you will receive a I-797C Notice of Action. This is to just to let you know that the USCIS has begun processing your application. This is a good time to send to your fiance the following documents:

  • The entire I-129F application package that you sent in
  • Additional photos/evidence of your relationship since you initiated the application
  • A completed I-134 Affidavit of Support. Get it from http://www.uscis.gov/i-134
  • Supporting financial documents of the Affidavit of Support (see above)
  • Another statement of intent on marriage after arrival in America, dated recently. This is to confirm that the intention to marriage has not yet changed

Once your I-129F is approved, you will receive a second I-797C indicating that. Your fiance is now ready to schedule an interview at the embassy/consulate to get the K-1 visa. Your fiance must bring all the above documents AND if possible, more evidence of an on-going relationship since the filing of the application. The fiance will also need to get a medical examination prior to the interview; just follow the direction as indicated on the letter from the US embassy or consulate. There are specific doctors that your fiance must go to for the exam. The letter should also instruct the foreign finance on filing for the K-1 visa through the Department of State. The following additional documents are required from the fiance:

  • Completed DS-160. This can only be done online now. Go here https://ceac.state.gov/ceac/
  • A valid, active passport that is valid 6 months beyond the date of intended entry into America
  • Copy of any final divorce decrees or death certificates documented the termination of any previous marriages
  • Copy of any court orders, marriage certificates or adoption certificate if there was a name change
  • Police certificate
  • Medical examination
  • 2 passport style photos
  • Payment of visa application fees

Step 3 – Success and coming to America

After the fiance has the interview and if it is approved, the foreign fiance can now make arrangements to enter the US. Once the fiance is inside America, there is a 90 day window to get married. Once the marriage occurs, the fiance must file a I-485 Adjustment of Status to get a permanent resident (green) card. Follow my comprehensive guide on filing Adjustment of Status based on marriage.

Good Luck!