Bringing her back home

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When we decided to recommend a Fiance(e) visa attorney to our clients we took an approach that differs from many of our competitors. Rather than looking for the attorney with the biggest advertising budget, we resolved to find the best specialist in terms of legal education, distinction of career, length and breadth of experience, services provided, quality of work product, accessibility to clients, speed and success in processing Fiance(e) visa applications, and overall client satisfaction. John F. Roth of Westchester County, New York, was the clear winner. We recommend his services to our clients, and receive no fee for the endorsement. We reproduce some of Mr. Roth’s articles and writings below.

CHOICE OF VISA

If you've found a foreign fiancee you wish to marry, the biggest question in your life will be "how do I bring her to America?". You may initially hope that you can simply invite your fiancee on a visitor, student or business visa. Unfortunately, your likelihood of receiving a visa for a Ukrainian, or other citizen of a relatively underdeveloped country, especially if the fiancee is under 40 years old, is extremely small - the typical estimate is less than 5%. The reason is simple: too many visitors from impoverished countries never return home after experiencing life in America. Therefore, visa applicants from these countries are officially assumed to have immigrant intent at the time of the Embassy interview, and the burden is on the applicant to prove that (s)he has sufficiently strong ties to the community to make the possibility of overstay of the visa in the U.S. extremely unlikely.

Conditions for Receiving a Non-Immigrant Visa:
The applicant must demonstrate sufficiently strong "ties to the home community" so as to convince the U.S. Embassy or Consulate that the applicant is highly unlikely to abandon his/her homeland by remaining in the U.S.. Most or all of the following factors must be present:

1.   Employment The applicant has a permanent job in their home country that is high paying by local standards and provides a standard of living that is comparable to the U.S. standard

2.   Financial Assets The applicant has non-liquid financial assets (ownership of a business, apartment, automobile, etc.) that are sufficiently valuable that the applicant is unlikely to forfeit them by failing to return home

3.   Previous Travel Experience The applicant has previously traveled to the U.S. or Western Europe and has returned home in every instance within the allotted visa time period

4.   Family Ties The applicant has strong family ties to their home country. Note well that this factor is only slightly helpful, and is never sufficient in itself to form the basis for a non-immigrant visa. The INS and State Department have declared in published documents that even leaving children behind is not to be given great weight, since many women from poorer countries leave children behind (with the child’s grandparent, most commonly), then overstay their tourist visa with the hope of arranging to have the child follow once the mother has adjusted status in the U.S..

If you attempt a business visa, you must in addition to the above factors show that your friend has a current business in her home country related to yours, that you have previous ongoing business with firms(s) in Ukraine/Russia, and that your business purpose can not be achieved without bringing your friend to America.

Student visas involve the added complexity of getting a university to accept the student and provide the required I-20 documentation. Your fiancee must be an outstanding student in a field of study for which the U.S. seeks additional students. Note well that attempting to bring your fiancee over to attend a school for English language study will result in an almost certain denial since the embassies are well familiar with this pretext for entering the U.S..

You may consider marrying your fiancee in her homeland and then inviting her to the U.S. on a Relative visa. This option is widely regarded as less advantageous than the Fiance(e) visa. Relative visas take about twice as long as Fiance(e) visas to process by the INS (although you can shorten this time greatly by submitting your I-130 petition directly to the U.S. Embassy; an option not available for Fiance(e) visas). The greater problem is the considerable added complexity of getting married in Ukraine or Russia. These countries require a foreigner to be in residence for 32 days before (s)he can marry a local citizen. Waivers of the waiting time are available, but they can be difficult to obtain. Further, the marriage process itself with throw you into yet another bureaucracy, and one with very stringent documentation requirements (for example, proof of non-married status “apostilles” to certify the authenticity of all foreign documents).

In almost every case, the best visa for bringing your fiancee to the U.S. is the K-1 Fiance(e) visa.

THE K-1 FIANCE(E) VISA

A Fiance(e) visa is a temporary visa, although one that may readily be converted to a permanent visa after marriage in the U.S.. The visa involves little or no contact with the foreign government. The countries of the former Soviet Union permit their citizens to exit freely on Fiance(e) visas. To qualify for the K-1 visa, you must show that:

1. You have met your fiancee within the last two years, and

2. You and you fiancee are both legally free to marry, and

3. You and you fiancee both have a serious intention to marry within 90 days of the fiancee’s arrival in America.

You will need to file numerous forms and documents (birth certificates, divorce decrees, translations, affidavits, photographs, financial documents, etc.) with the U.S. Immigration and Naturalization Service (INS) in order to prove that you and your fiancee qualify for the K-1 Fiance(e) visa.

Once you complete all the forms and gather all the required supporting documentation for the K-1 petition, you must submit the petition to the appropriate INS Regional Service Center. If your application is complete and there are no errors, the application will be approved in from two weeks to two months. If your application is deficient in any way, the INS will send a request for additional documents or will return your application in its entirety for re-submission. You must then wait another two weeks to two months for approval, but the INS may return your application yet again if there is another deficiency, and then you must repeat the cycle. However, the INS has no discretion to turn down an application that is complete, accurate, meets the requirements of the K-1 visa, and is not deemed fraudulent.

Once approval has been received, you and your fiancee must send additional documents to the U.S. Embassy having jurisdiction over your fiancee’s petition (Warsaw for Ukrainians etc.). The Embassy phase of the visa process is every bit as form and document intensive as the INS phase. Your fiancee will have to produce a minimum of five forms (OF-156, OF-156K, OF-157, OF-169, I-134). She must also produce the following documents, as applicable, for herself and any children: birth certificate, marriage certificate(s), divorce decree(s) or death decree(s) for any terminated marriage, police certificates showing the absence of a criminal record, and evidence of engagement to be married.

The process of obtaining the interview date can take anywhere from one to three months from the date of INS approval. The interview is typically scheduled for a month after you receive the interview date.

Prior to the Embassy interview, your fiancee must undergo a medical examination to determine whether she has any contagious illnesses that might pose a threat to the health and welfare of citizens of the United States (AIDS, tuberculosis, Hepatitis B, etc.). The fiancee is also tested for pregnancy and venereal disease, and the petitioner is advised if any such test is positive. The exam itself consists of a general medical examination, blood tests, and a chest x-ray. The entire examination process takes about an hour and a half. The fiancee may have to wait until the next day to receive the results of the examination. Therefore, the medical examination is typically scheduled two days prior to the Embassy interview.

The medical examination maybe taken only at a medical clinic on the Embassy’s list of approved clinics. Virtually all of these clinics are located in the Embassy city. The Warsaw Embassy does, however, permit Ukrainian citizens to undergo the medical exam at a single approved clinic in Kiev, Ukraine. Likewise, the Moscow Embassy permits medical exams at a single clinic in Vladivostok, Russia.

You must prepare a Form I-134 Affidavit of Support for your fiancee to bring to the Embassy interview. You will have to show that you have an annual income of at least 125 percent of the federal poverty income line. The current poverty guideline for a family of one living in one of the 48 contiguous states or in the District of Columbia is $8,350. Add $2,900 for each additional family member. So, if your family consists of just you and your fiancee, you will have to show an income of at least 11,250 x 1.25 = $14,062.50. To prove your income level, you will have to submit a copy of your most recently filed tax return plus a statement from your bank showing the receipt of income, plus, if you are employed by a firm, a letter from the firm stating your income, your employment start date, and the permanent nature of your employment. If you don’t quite meet the minimum income level, but have sizable savings or other financial assets, you maybe able to use these assets to meet the income requirements of the Affidavit of Support. If you would prefer that your fiancee not see your financial documentation, arrangements can be made to send the documents directly to the Embassy for the examining officer’s review only.

Your fiancee will be asked to appear at the Embassy at 8:00 a.m. on the morning of the interview. She may have to wait an hour or two to be interviewed. The interview itself will consist, first, of an examination of your fiancee’s forms and supporting documentation, followed by questioning to determine whether there is a bona fide fiance/fiancee relationship. The examining officer may ask any and all questions that (s)he deems appropriate to this inquiry. The examination can take anywhere from five minutes to an hour, depending on the presence or absence of problems in the forms, documentation, or answers to questions. If the officer determines that all requirements of the K visa have been met, (s)he will instruct the fiancee to return to the Embassy at 4:00 p.m. that same day to pick up her visa. She is then eligible to fly immediately and directly to the U.S..

Once your fiancee arrives in the United States, her visa is stamped with a date 90 days from the date of her entry into the U. S.. She must either marry you by this date or leave the United States. Extensions are not permitted. If you do not marry your fiancee, you will not be precluded from making a future application. If you marry your fiancee, you can adjust her status to conditional permanent residency and she can lawfully remain in the U.S..

The "conditional" nature of the status means that your wife must wait two years before she can remain lawfully in the U.S. without your consent (although there is a possible exception in cases where the wife has received her permanent residence card – a process that typically takes a year – then divorces, and is later able to convince the INS that she entered the marriage in “good faith”). You and your wife must go for two interviews with the INS to demonstrate that your marriage is genuine before your wife is eligible to apply for citizenship.

CHILDREN OF FIANCEE

If your fiancee has a unmarried child under age 21, the child maybe included in the mother’s K-1 Fiance(e) visa petition as a K-2 beneficiary, provided that the required additional information and documentation is provided to the INS and Embassy.

The child must undergo a medical examination like the mother, and in most cases must also attend the Embassy interview.

If you are considering inviting your Ukrainian fiancee to America, and she has a child, you should ask your fiancee one very important question prior to beginning the visa process: can she obtain the permission of the father of the child for the child’s immigration to America? Such consent will probably be necessary if the child is to travel with the mother to America on a Fiance(e) visa.

Ukrainian law require that the father’s consent be in writing and that the consent be an unconditional agreement to permit the child to live permanently in the foreign country. The agreement must be witnessed and notarized.

The father’s written consent will also be needed should your wife wish to travel back to her home country after she establishes permanent residency in the United States. Ukrainian law require that, if citizens of their country establish permanent residency abroad, they must exchange their passport for a new one showing their status as a permanent resident of a foreign country. If your wife attempts to return to her home country without the new passport, she will encounter difficulties exiting the country, and can even be denied exit completely. As part of the process for obtaining the new passport, your wife must present written consent from her ex-husband showing that he agrees to the child living permanently in the United States.

What if the father refuses to give his consent? There is no easy answer or “rule book” for such situations. I have succeeded in bringing all children of my clients’ fiancees to America, but many of my greatest challenges practicing in the K visa area have involved obtaining the permission of the fiancee’s ex-husband for the emigration of the fiancee’s child. So, I encourage you to address this issue with your fiancee well before you undertake the Fiance(e) visa so that you will be prepared to address the problem later in the visa process.

PROGRESS FROM FIANCEE TO U.S. CITIZEN

Once the marriage has occurred, it is essential that you and your wife promptly apply to adjust her status to conditional permanent residency. If you fail to take this step, your wife will become an illegal alien upon the expiration of her Fiance(e) visa time period. You should contact the local INS office to obtain the necessary instructions and forms. It’s a good idea to write to the local INS office long in advance of your marriage to obtain the INS office’s instructions, since local INS offices are very difficult to contact by telephone.

A few months after the adjustment application is submitted, you and your wife will be interviewed by an INS officer. The waiting period for the interview can be as little as a month, or as long as two years, depending on how busy the local INS office is. During the interview you and your wife will be required to present documentation showing that you are living together in a genuine marriage. Useful documentation includes: your marriage certificate, wedding announcements, photos of the two of your together (for example, at your wedding, on your honeymoon, etc.), joint credit card statements, joint checking accounts statements, joint bills, and car registrations. It is not necessary that all of these items be presented, just enough to show a genuine marriage. You and your wife will also be questioned by the INS officer, both together and apart from one another, to make certain that yours is not a “sham marriage.” A genuinely married couple should have no difficulty with this interview, since the interview is designed to discover marriages that are “in name only,” and entered into solely to achieve an immigration benefit.

It will probably take about three months from the interview for your wife to receive her permanent resident card (sometimes referred to as “green card”. Until this time, she will be ineligible to travel outside the U.S. and return unless she previously petitions the INS for “Advance Parole” permission to exit and return to the U.S..

Two years after your wife’s status is adjusted to conditional permanent residency you must petition your INS office to remove the conditional nature of her status. You and your wife must demonstrate once again that you have a genuine marriage in an interview with an INS officer. Approximately a year later (three years after the marriage), your permanent resident wife will be eligible for U.S. citizenship, and she should have no difficulty obtaining it.

WHETHER TO HIRE AN ATTORNEY

Do you need to hire an attorney for a K-1 Fiance(e) visa? To my mind, this question misses the point, since one can’t even say that you “need” a lawyer to close on a house, or write a will, even though lawyers are usually asked to manage such matters. The real question is - do you want to hire an attorney? That is, will the services and benefits that the lawyer provides be enough to justify the fee, given your personal budget (the attorney fee for a K-1 Fiance(e) visa is generally in the $1200 to $2000 range, although lawyers vary significantly in the amount of help they provide a client for a K visa, especially with regard to the Embassy phase of the process)?

So, let’s discuss some concrete things that a lawyer can do for you, and see if it adds up to something that you personally feel justifies the lawyer’s fee.

The lawyer can contact your fiancee and get all the biographical information needed for the INS and Embassy forms in exactly the right form, and without missteps (last year I accepted a client who did the Fiance(e) visa himself and hired me after his fiancee’s case had languished a year and a half in the Embassy’s Anti-Fraud Unit because he had simply written her address incorrectly on the INS forms). If the attorney has an assistant who speaks your fiancee’s native language, this will enhance the effectiveness of the initial information gathering, minimize mistakes and misunderstandings, give your fiancee a boost in confidence from knowing that a professional is handling her case, and also save you phone calls and perhaps also translator expenses.

The lawyer can advise you with authority about what information and documents you must provide for the INS petition, and what form they must be in. The attorney will also know how to answer ambiguously phrased questions in the INS forms. The attorney should also be able to advise you and your fiancee regarding how to most efficiently obtain and forward the documents (certified, translated birth certificate, divorce decrees, financial statements, etc.) required for the application. This can save you a lot a head-scratching and worrying that you might not be doing things right, or that you might be following advice that is incorrect, and with no one to turn to if things go wrong.

The lawyer can prepare the petition to greatly reduce the chance that the petition is sent back due to a deficiency or error, which would cost you one to two months delay. According to an INS Southern Service Center examining officer with whom I spoke a last year, approximately 60% of all K petitions submitted for the first time to the Southern Center are sent back to the petitioner with a request for additional information, with a resulting delay in approval of a month or more. A capable and experienced lawyer should get the application approved on the first submission for the vast majority of his/her cases.

The lawyer can prepare your fiancee’s Embassy forms. There are actually more Embassy forms to fill out in the K visa process than there are INS forms to fill out. Further, the forms are not accompanied by instructions. The Embassy staff will help a fiancee fix insignificant errors in the forms, but a material mistake or deficiency in the documents will result in a denial (perhaps only temporary, but the fiancee may have to travel back home to get the error fixed and then schedule a second interview).

The lawyer will be able to shield you from battles with governmental bureaucracies. To get a sense of your tolerance for such matters, you may wish to try calling the INS and embassy before starting your petition to see how you fare.

The lawyer can reduce the risk of an INS or Embassy denial to near zero (I myself have handled over 900 K visas, and haven’t had a single case denied).

The lawyer can reduce the stress on you, your fiancee, and you relationship at a time when you both would probably prefer thinking about preparing for your new lives together.

The lawyer can expedite the request for the Embassy interview date. By default, the embassies employ a time-consuming multiple mailings approach to prepare for scheduling the interview. A lawyer experienced with the embassy in question will have already worked out a more efficient means of interacting with the Embassy so that the interview can be scheduled in the shortest possible time, often saving months of waiting.

The lawyer can give your fiancee precise instructions about documents required for the Embassy interview. The embassies provide such instructions in their first mailing to the fiancees, but fiancees nevertheless often make mistakes in this area. Incorrect paperwork is unquestionably the number one reason for denials of Fiance(e) visas.

The lawyer can provide for his/her assistant in the Embassy city to meet your fiancee prior to the interview. This person should review the fiancee’s paperwork one last time, familiarize your fiancee with the embassy and the interview process, and generally calm her nerves and enhance her confidence. The existence of an overseas paralegal may end up saving you more money than the lawyer’s fee by helping you avoid a second overseas trip to support your fiancee during the interview phase. Fiancees are naturally very nervous about the interview, and often ask the fiance to fly to the Embassy city for moral support during the time of the interview. However, fiancees typically drop this request when told that a far more experienced person, the attorney’s paralegal assistant, will be in the Embassy city to provide support.

Among the less concrete benefits a lawyer provides, which may even be more important than all the specifics listed above, are these:

Experience – An attorney who has done many K visas will be able to answer all of your and your fiancee’s questions immediately and with confidence. Further, the lawyer’s experience in handling many similar cases from beginning to end will greatly enhance his ability to see and resolve potential problems at the very beginning of the case. Moreover, if unanticipated problems or challenges arise, the lawyer can draw on his or her extensive experience to provide a ready answer. It’s particularly helpful if the attorney is strongly familiar with your fiancee’s home country, and the problems that may arise there, and how best to resolve such problems.

Contacts with the Embassy – I’m writing this article now (June 2000) in my hotel room in Moscow after having just met with the Unit Chief of the Embassy Immigrant Visas Unit as well as with the Supervisor in charge of all Fiance(e) visas. My associate attorney traveled to Warsaw for similar discussions just a month ago. Further, we are in almost daily contact with the Embassy staff in Warsaw and Moscow by e-mail, phone, or fax. Knowing the Embassy staff members on a first name basis, and even more important, the fact that they know my firm’s work and reputation, allows me to do things that the layman may not be able to accomplish (I’m being, of necessity, modest here).

Peace of Mind – this factor can not be emphasized enough, particularly as regards the fiancee. The fiancee is going into a foreign embassy typically for the first time in her life. She may have heard rumors from friends and associates about rude embassy staff and high denial rates. Further, she is risking a great deal – abandoning her job, friends, family, and native country for the mere possibility of a visa and marriage to an American. The fiancees are naturally very nervous about all this. Just knowing that an experienced American lawyer will be helping her typically goes a long way to keeping the fiancee calm and confident as she goes through the process of obtaining her visa.

Accountability – a lawyer’s reputation can be damaged by even a single mishandling of a case (particularly in these days of bulletin boards and the Internet), he can be sued for a serious error, and disbarred for a serious ethical transgression. Believe me, these things focus the mind! The lawyer must provide competent, professional service. The same can not be said of “How To” books written by non-professionals, friends or acquaintances who claim to be experts, and various other unregulated advisors.

It’s probably fair to say, in conclusion, that if you hire an attorney you pay a price, but you also pay a price if you don’t hire an attorney. Which price you prefer to pay will turn on the particulars of each person’s case. Whichever course you choose, I wish you the very best of luck.