What is the difference between a visa and a status adjustment?
Status adjustments are conducted within the United States unlike visas. All visas are issued outside the United States for entry to the U.S. However, the foreign partner may sometimes skip fiancé visa processing, marry the citizen, and apply for an adjustment of status while remaining in the U.S. This is possible when a foreigner is a temporary resident of the U.S.
Those foreigners who enter as visitors are not temporary residents of the US. It still may be possible to apply to adjust status without the need for a K1 fiancé visa. However, visitors can run into serious trouble if they misrepresent intentions regarding the “visit” at the border check. An officer who believes that the entry as a visitor was a pretext to marry can be deemed permanently barred from the U.S. based on misrepresentation before an immigration officer. It pays to play it safe and report honestly whenever speaking with an immigration officer. The entire immigration history dating back years is open to investigation at any time.
Furthermore, there are other times when it may be advantageous for the foreign partner to travel back to his or her home country and enter under a different visa class. This is important because there are certain classes of visas which prevent a foreigner from filing a change in status or an adjustment of status. For example, a C1-D crew member visa enables employees involved in the travel industry to enter the United States for work. However, the C1-D does not allow individuals entering the United States under this visa to change or adjust their statuses. Special rules are designed to prevent individuals from jumping ship, thereby risking a shut down of our travel industry. There are other visa classes which have similar restrictions.
What if the consulate denies my K1 Fiancé Visa?
The U.S. consulate has broad power to deny one’s visa. As a general matter, there is little in the way of appeals. It is very difficult for a couple to get into court to litigate a K1 denial. For example, an officer might deny the application without comment if the immigration officer does not like the way someone is dressed or the mannerisms of the person. Given this, it is important to reduce the risk of denial by having an experienced attorney work through issues throughout case processing with a view toward the consulate interview in the end. That interview is the most critical stage because this is when all comments from prior agencies are put together and assessed.
A U.S. citizen petitioner may still reapply for a visa if the first one is denied. However, a denial affects the chances of success on a future application. The agency may deny the application again simply not to deviate from the past decision. A denial of any visa normally affects all future immigration submissions. For example, a consulate officer may view the fiance visa application in a negative light if the foreigner was recently denied a visitor visa to the U.S. Was the request to only “visit” the U.S. sincere? U.S. visas become more problematic for the foreigner when there are previous denials.
Are there alternatives to a Fiancé Visa?
A marriage visa is for those who marry first and then apply for a visa to the U.S. You may marry and apply for a marriage visa abroad if you are denied a fiancé visa. However, a denial of the fiancé visa can be a negative factor in review of the marriage visa application.
It helps to have a good strategy from the outset when deciding what immigration path to pursue. A marriage visa may be advantageous as compared to a fiancé visa because the right to appeal a marriage visa denial is possible. By comparison, an administrative appeal of a fiancé visa is very unlikely.
How does COVID affect the fiancé visa process?
As part of the fiancé visa process, the foriegn fiancé will be asked to have a medical exam. Part of that examination process will include whether the foreigner is vaccinated for COVID. You may object to receiving vaccinations for good cause. An objection for good cause mainly is based on a religious or moral belief. That belief must be based on a doctrine which demonstrates why the religious or moral precepts are against vaccination. In these cases, showing a doctrine which demonstrates why someone is against the vaccine may be difficult to prove.
In review of a vaccination waiver, the officer may ask whether the individual has received previous vaccinations. If so, the individual must demonstrate what has changed in his or her life to show a justifiable moral or religious objection to this vaccine. An affidavit stating that you object to the vaccine without anything else will not be sufficient for purposes of waiving the vaccine requirement.
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