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Key differences between a K-1 fianc(é)e visa petition and a spousal visa petition?

If you have recently become engaged, congratulations! If you are a U.S. citizen whose fiancé or fiancée is from another country, you have the opportunity to sponsor them to come live with you permanently in the United States. We are often asked which is better, a K-1 fianc(é)e visa petition or a spousal visa petition.

Here are some key considerations to help you decide which is the better option for you and your loved one: 1) place and time of your marriage; 2) processing time and cost; 3) your fianc(é)e's needs for work and travel outside the U.S.

Minister or religious worker? Apply now to come to the US

If you have a full-time job offer as a minister, in a religious vocation, or in a religious occupation in the U.S., you may qualify for an EB-4 visa for Special Immigrant Religious Workers. This is an immigrant visa, meaning that you can apply later on for a green card (lawful permanent resident status). And, your spouse and unmarried children under 21 can accompany you on this visa and may also qualify for green cards.

First, be aware that the rules will soon be changing for religious workers who are not ministers. Non-ministers must immigrate by Sept. 30, 2019, if they are using the EB-4 Special Immigrant Religious Workers visa. After that, non-ministers and their dependents will no longer be allowed to use this visa.

What does the new 'public charge' rule mean for immigrants?

The Immigration and Naturalization Act (INA) already says that immigrants can't be a "public charge," meaning they aren't supposed to cost taxpayers money by relying on public benefit programs. If they are, or are likely to become, a public charge, immigrants are not eligible for visas or green cards.

Yet legal immigrants with little income are often eligible for some public assistance programs, such as welfare (TANF), food stamps (SNAP), public housing, Supplemental Security Income and Medicaid.

Long delays for optional practical training (OPT) visas

The optional practical training (OPT) program allows international students to remain in the U.S. for practical training that is directly related to their area of study. It is available to F-1 and M-1 visa holders for up to 12 months, with some extensions available. F-1 visa holders in certain STEM (science, technology, engineering and mathematics) fields, for example, can apply for a 24-month extension.

In the past, the U.S. Citizenship and Immigration Services virtually guaranteed processing of OPT requests within 90 days. If the request was not processed within 90 days, the applicant could go to a local office for immediate approval.

Ambiguity in a criminal conviction can mean relief from removal

When an immigrant is convicted of certain offenses, including controlled substance offenses, they can be deported and removed from the United States. Recently, the U.S. Court of Appeals for the Ninth Circuit heard a case in which an immigrant petitioned to avoid removal. She claimed that she was not, in fact, convicted of a crime that disqualifies her from remaining in the U.S.

The issue was that the woman had pled guilty to a violating California's Penal Code § 182(a)(1): conspiracy. It seems that the underlying offense did involve a controlled substance. However, the petitioner did not plead guilty specifically to a controlled substance offense but pled down to a felony conspiracy charge.

Supreme Court to decide whether Trump can end DACA program

In 2012, Congress reached a deadlock on a program that would have protected young immigrants from deportation if they had been brought to the U.S. as minors.

The idea was that these immigrants had themselves done nothing illegal. It was not their choice to enter the U.S. illegally, and now most of them had virtually no ties to their countries of origin. Deporting them would be unusually cruel, forcing people who had long believed themselves to be Americans to move to essentially a foreign country.

Have substantial capital to invest in the US? Consider an E-2 visa

If you’re considering starting a U.S.-based business, you could qualify for an E-2 treaty investor visa. This is a 2- to 5-year nonimmigrant visa, but there are no limits on the number of renewals. It allows the investor of significant capital in a U.S.- based business to live and work in the U.S. It also allows key employees of the enterprise to come to the U.S., along with the families of E-2 visa holders.

In order to qualify for an E-2 visa:

  • The person or an investing entity must be the citizen of or primarily based in a country with which the U.S. has a treaty for commerce and navigation.
  • You must make a substantial, committed and irrevocable investment in a business that is sufficient to ensure it will operate successfully.
  • The business must be a real operating enterprise, not a paper organization or speculative investment.
  • The business must be poised to generate significantly more income than just a living for your family, or it must make a significant economic impact on the U.S.
  • The person or investing entity must have control of the funds and must be taking a commercial risk with the business, meaning that some or all of the investment could be lost if the business fails.
  • The investment cannot be in the form of loans secured by the assets of the investment business.
  • You must be coming to the U.S. to develop and direct the business, as established either by 50% ownership or operational control of the business.
  • If you are not the principal investor, you must be an essential employee who will work in an executive or supervisory role or will provide a highly specialized skill.
  • You must show that you did not obtain the investment funds directly or indirectly from criminal activity.

Any US citizen can sponsor a fiancé/fiancée to live in the States

Whether you're a birthright citizen or were naturalized, you can petition to bring your foreign-born fiance or fiancee to the United States for the wedding. They can use a K-1 visa, as long as you intend to marry within 90 days of their entry. Once you are married, your spouse can apply for lawful permanent residence (green card status) and, eventually, citizenship.

In order to qualify for a K-1 fiancé(e) visa, you must be about to enter into a valid marriage. That is to say, it cannot be solely to obtain immigration benefits but must be the product of a bona fide intent to establish a life together. You both must also be free to legally marry in the U.S.

If 2 married parents are citizens, why isn't their kid a citizen?

Two married men, James Derek Mize and Jonathan Gregg, had a daughter through assisted reproductive technology. The girl is biologically related to Gregg, who was born in Britain to an American mother. Mize was born and raised in the United States. Both are U.S. citizens, but they recently received a letter from the State Department denying birthright citizenship to their daughter.

"We're both Americans; we're married," Mize said. "We just found it really hard to believe that we could have a child that wouldn't be able to be in our country."

Redesignation of pot conviction not enough to prevent removal

California's Proposition 64, the Adult Use of Marijuana Act, not only legalized adult marijuana use but also provided some relief for people who had previously been convicted of marijuana crimes. Among other things, some marijuana-related felony convictions can be "redesignated" as misdemeanors after the sentence has been served. What does this mean for immigrants?

As you may know, immigrants can be deported if they are convicted of controlled substance crimes, among other offenses. However, a conviction for possessing 30 grams or less of marijuana for personal use is not grounds for deportation and removal.

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