K-1 denial reversed on appeal!

Hi folks,

Just got word today of a case that's been pending for about 1 and a half years. The K-1 was erroneously denied because the USCIS officer didn't understand the different ways of obtaining a divorce in China. I had to detail both routes and discuss what option my client took.  The agency that authorized the divorce provided proof of the dissolved marriage, but the officer didn't accept their paperwork as adequate proof of the divorce. To add to the confusion, there was ambiguity in the English translation that could have potentially changed the meaning and weight of the document.  This confused the officer, and I had to point out the true meaning of the evidence at hand.

In the end, the appeal was succesful and the client is now back on track to process their K-1 fiancee visa. The important lesson here is to have an experienced attorney review your paperwork. While the paperwork may appear to all be there, careful review of the docs to be submitted is essential. Otherwise, the officer may hang on to a seemingly minor issue, focus on it, and deny the immigration benefit.

If you need professional legal asssistance, please call me at 626-771-1078 or visit our websites at http://www.myvisa.com/ and http://www.myfianceevisa.com/

BIA addresses eligibility of K-2 child who turns 21

25 I&N Dec. 541 (BIA 2011)

In this case, the Board of Immigration Appeals addressed issues pertaining to the child of a nonimmigrant fiancée visa holder who obtained admission as a derivative of his mother’s

fiancée status. The respondent, a K-2 visa holder, sought to adjust his status to that of a lawful permanent resident, but he had turned 21 prior to the adjudication of his application for adjustment of status by the Immigration Judge. The BIA concluded that to adjust status based on a K-2 visa, an alien derivative child must establish that he or she was under 21 years of age at the time of admission to the United States.

The respondent was born on March 24, 1985, in Vietnam. His mother, also a native and citizen of Vietnam, became engaged to a United States citizen who filed a Petition for Alien Fiancé(e) (Form I-129F) with the U.S. Citizenship and Immigration Service (“USCIS”) on her behalf on December 8, 2003. The petition was approved, and the respondent’s mother was issued a K-1 nonimmigrant fiancée visa pursuant to section 101(a)(15)(K)(i) of theAct, 8 U.S.C. § 1101(a)(15)(K)(i) (2000). The respondent, who was then 19 years old, was issued a K-2 nonimmigrant visa as the minor child who was accompanying, or following to join, his mother, a K-1 visa holder, pursuant to section 101(a)(15)(K)(iii) of the Act. On December 27, 2004, the respondent and his mother were admitted to the United States on their K visas, when the respondent was still 19 years old.

On December 30, 2004, within a week of her admission, the respondent’s mother married her United States citizen fiancé. Approximately 2 months later, on February 24, 2005, both the respondent and his mother filedapplications to adjust status with the USCIS. The respondent’s mother was granted adjustment, but the respondent’s application was denied. The USCIS found that the respondent could not qualify as the “stepchild” of the fiancé petitioner within the meaning of section 101(b)(1)(B) of the Act because he had already reached the age of 18 at the time of his mother’s marriage. He was therefore determined to be ineligible to adjust his status.

The respondent was subsequently placed in removal proceedings by the issuance of a Notice to Appear (Form I-862) on March 24, 2006. At a hearing before the Immigration Judge, the respondent conceded removability and sought to renew his adjustment application. The Immigration Judge denied therespondent’s adjustment application, but he disagreed with the reason given by the USCIS for its denial. The Immigration Judge concluded that under section 245(d) of the Act, the respondent had been eligible to adjust his status to that of a conditional permanent resident when his application was before

the USCIS, because he was still under 21 years old. Nevertheless, the Immigration Judge determined that the respondent could no longer adjust because he had since turned 21 and could not qualify as a “child,” as that term is defined in section 101(b)(1) of the Act.

After reviewing the matter, the BIA found that a K-2 derivative child of a fiancé(e) visa holder must establish visa eligibility and availability in satisfaction of section 245(a) at the time of his or her admission to the United States. See generally Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005). As it concluded in Matter of Sesay, visa eligibility and availability are best established by the date of admission.

Matter of Hieu Trung LE, Respondent 

Beware working with non-attorneys

The USCIS and Executive Office for Immigration Review has been cracking down on paralegals and non-attorneys who are acting as an attorney by providing legal advice to individuals they are assisting. While it may be acceptable for a paralegal to complete an USCIS form given biographical information from an applicant, s/he is strictly prohibited from giving legal advice.

Unfortunately, there have been reports of unscrupulous notarios and other paralegals taking thousands of dollars from applicants and providing little or incompetent service. The USCIS and EOIR are trying to combat this through various initiatives.

When preparing a fiancee or spousal visa petition, one must be prepared to thoroughly research K-1 and spousal visa regulations and procedures. If you aren't comfortable doing this, considering hiring an attorney. Contact Ted Huang, Esq. at 626-771-1078 for assistance.

Should you apply for your K-1 fiance(e) visa in Canada?

U.S. consular officials at the Vancouver U.S. consulate were asked if third country nationals could apply for a visa at their office. Here's their response.

"[Third country nationals should not consider applying for a visa in Canada] when they are visa or forum shopping. We will take the cases of people who are resident and present in Canada, including TCN’s coming from the US. It’s usually quite evident if something weird is going on, and those sorts of cases are problematic, and prone to more scrutiny and possible refusal. Applicants coming from other countries should be aware of language issues and sufficient proof of ties to residence abroad.

Also, applicants who have faced – or might face -- “administrative processing” should think long and hard about where and when to apply. There are many news items on applicants stuck in Mexico or

Canada while they await resolution of their visa application."

K-1 processing in Canada

A recent American Immigration Lawyers Association meeting with consular officers from the Vancouver U.S. consulate yielded the following helpful tips about K-1 fiancee visa processing at the Vancouver office.

• American citizen fiancées are not required to attend. Consular officers would want them present if there were interpretation or assistance needs.
   
• K-1s are handled like all other visas in terms of the interview.
   
• Same day processing is not a possibility. Consular officers attempt to process the visas within 24-48 hours for retrieval from DHL 24-48 hours after that.
   
• The Vancouver office receives the approved petitions from the Kentucky Consular Center. Based on approval stamps, it receives petitions 3-4 weeks after the approval.
   
• The Vancouver office currently has no backlog. The case is generally delayed by the applicant, as the office waits for their notification that they have collected the necessary documents.