Immigration Debate

The NVC (short for the National Visa Center) and its processing guidelines have been the topic of discussion in some US Immigration circles. The following piece will look at whether or not recent policy changes will have an impact upon those seeking K1 Fiance visa benefits.

The National Visa Center (NVC) recently stated that as of the 1st of February 2010 they will no longer process I-129f petitions for marriage visa benefits if the underlying I-130 petition arrives before, or contemporaneously with, the supplemental I-129f petition. There may be those readers who are probably wondering what impact this will have upon visa seekers.

For those seeking a K-3 visa, the possible consequence of this recent announcement is very important since the NVC, in certain situations, is now compelling couples to seek immigrant spouse visa benefits in the form of the IR-1 visa and the CR-1 visa rather than the non-immigrant K-3 visa. Although, the K3 visa petitioner submits an I-129f petition form in order to apply for K3 visa benefits this petition is also utilized when applying for fiance visa benefits as well. What effect will the recently announced rule change have upon the K-1 visa obtainment process?

In order to obtain a US fiance visa, the US Citizen must file an I-129f petition for K-1 visa benefits. If the petition is approved, then it will be sent to the National Visa Center (NVC) for processing. After the NVC processes the application, it will be forwarded to the US Embassy or Consulate-General with proper jurisdiction. Confusion may arise as there are those who may be placed under the mistaken impression that the I-129f petition will be administratively closed by NVC in a K-1 visa case. This is likely not the case, as administrative closures of I-129f petitions are only supposed to happen in the context of applications for K-3 benefits and not for K-1 benefits. This recent change in the rules will likely have no impact upon the K-1 visa process as the rule is designed to only impact the K-3 visa process.

One possible consequence of this recent announcement is that the resources that the NVC was exhausting in processing I-129f petitions for K-3 visas may be used to process other types of visas. Although, it is this author’s opinion that the K1 visa process is quite efficient and NVC usually takes very little time to process K1 visa applications.

In most cases where the visa application is to be processed by the US Embassy in Bangkok, Thailand, there is usually a two week waiting time between I-129f petition approval by USCIS and the forwarding of the file from NVC to the US Embassy. By most people’s estimate, this is a reasonable period of time to wait. In the case of Immigrant visas, the NVC processing time is considerably longer as the NVC requires submission of more documentation in Immigrant visa matters when compared to non-immigrant visa cases.

Question: I want to marry a U.S. Citizen. I have heard it is easy to get the Green Card through Marriage. Is this true?

Answer: There are some qualifications as to whether it is easy or not. First and foremost, a residence card through marriage must be based upon love and not the desire to get lawful permanent residency. Otherwise, it would be considered to violate the immigration laws and it could be considered to be fraudulent. The next issue is the timing of the marriage. Many times people come into the U.S. on a visitor visa and get married right away hoping for the Green Card. In actuality, this could also be considered to be fraud and the supposedly easy manner to get the Green Card through Marriage turns into a denial and deportation.

When you come into the U.S. on a visitor visa, it is to visit. The law specifically states that if you get married prior to 60 days after entering the U.S. and after 30 days, that it is presumed to be fraud. This means that it is presumed that you intended to marry when you entered the U.S., not come and visit as is the purpose of the visitor visa. It is possible to overcome this presumption, but it must be overcome, or the green card through marriage will be denied and life will not be as pleasant in the U.S. as you thought. To make matters worse, if you get married prior to 30 days of entering the U.S., it is fraud and there is not even a rebuttable presumption. In that case you will not get Lawful Permanent Residency through marriage (at least through adjustment in the U.S.).

Question: Assuming that I did marry for love and that there is no issue of fraud, are there still issues in getting Residency through marriage?

Answer: Yes. Assuming you pass the above issues, obtaining Residency through marriage is actually a ‘conditional’ residency through marriage. The law actually wants you to prove at a later point that the marriage was for love and not for the Green Card. Thus, the conditional Green Card through marriage will be issued for two years. Close to the end of those two years, you would be need to file a petition to remove the conditional residency. Only if that condition is actually removed will you obtain the true Green Card through marriage. Thus, as you can see, it is not quite as easy to obtain the Green Card through Marriage as people might think.

Question: What are the consequences if Immigration denies my application for the Green Card through Marriage?

Answer: If they deny your application for Lawful Permanent Residency through Marriage, we would have to see the basis of the denial. If USCIS believes that the application for the Green Card through marriage was based on a fraudulent marriage, then you would be barred for the rest of your life from applying for any immigration benefit whatsoever and would most likely be put into deportation proceedings. Sometimes, it is better to look for other ways to obtain the Green Card through employment or other family petitions. At first, those petitions take longer, but in the long run, if the application for Lawful Permanent Residency through marriage is not legitimate, it would be best not to submit the application for the Green Card through marriage and to take some other route.

The employment-based 5th preference category, sometimes referred to as employment-creation visas, or investor green card visas is available to those investors who invest lawfully obtained capital in a commercial enterprise employing at least 10 full-time US workers. The investment is five hundred thousand dollars if it is in a targeted employment area.

” A “target area” is defined as a rural area or an area that has experienced high unemployment. An area not within a metropolitan statistical area or the outer boundary of any city or town having a population of 20,000 or more is considered a rural area.

Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business.

Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for purposes of the Act.

To qualify in the EB5 category, the investment must create full-time employment for at least 10 US citizens, lawful permanent residents, or other immigrants lawfully authorized to be employed in the United States. Employee means an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. This definition does not include independent contractors. Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week.

In order to deter investor/employment creation visa fraud, the law provides for a two-year conditional permanent residence status. If, at the end of two years, no fraud is found in the petition process, the conditions will be removed and permanent residence will be granted.

A petition for employment creation aliens is filed on US immigration form I- 526, Immigrant Petition for Alien Entrepreneur, with the US immigration service center having jurisdiction over the place of the proposed investment. When the petition is approved, the alien, together with the spouse and unmarried minor children (under 21), will file their applications for immigrant visas at a US consulate if they are outside of the United States, or will file for adjustment of status with the US immigration service if they are in the United States and eligible for adjustment of status.

Investor green card visas are considered perhaps the most definitive route to legal permanent residence and have been growing in popularity during the last two years.