Category: K1 Fiancé(e) Visa

Demand for Permanent Residence in the United States – Unfortunately Supply is Outpaced by Demand!

There was a recent article from the New York Times entitled “Wary of Future, Professionals Leave China in Record Numbers”    The gist of the article is that Chinese professionals are leaving China due to their concern over the Chinese government’s communist policies and leaving for Western countries such as the U.S., Australia, and India.  The article stated that in 2011,” the United States received 87,000 permanent residents from China, up from 70,000 the year before. Chinese immigrants are driving real estate booms in places as varied as Midtown Manhattan, where some enterprising agents are learning Mandarin, to the Mediterranean island of Cyprus, which offers a route to a European Union passport.” I definitely agree with the economic catalyst that immigration from overseas professionals provides to the United States.  Clearly the professionals from China contribute a great deal to their communities in terms of economic benefits, skilled labor, and in social diversity.  The problem in my opinion and experience as an Immigration Lawyer, is that the U.S. is losing out to other countries.  I have had many clients and friends that are extremely well educated and highly capable persons from China, educated with advanced degrees in the U.S. and either unable to obtain a job in the U.S. or unable to secure a visa number.  This is due to small amount of available green cards allotted by the United States Congress as well as the restrictive U.S. Immigration laws, which ends up deterring some of the best and brightest from not only China, but the rest of the world.  For example, a person from China educated in the U.S. with a Bachelor’s Degree or higher may want to live and work in the U.S.  In most cases, a suitable visa for this type of situation is an H1B Visa.  An H1B visa is for skilled workers with the equivalent of a US Bachelor’s Degree that have a job offer from an employer in the US.  Congress allots 65,000 available H1B visas and an additional 20,000 for persons earning a Master’s Degree or higher in the United States.  The first day United States Citizenship and Immigration Services (USCIS)  will accept an H1B petition is April 1 for employment on October 1 of the same.  In a poor job market such as the past few years, it may take several months to use up the available H1B visas (H1B cap), and in a good job market there may be twice the amount of petitions filed on April 1 (i.e. opening day for H1B’s) for the precious few H1B visas alloted by Congress.  The problem is, once these H1B visa are used up, persons from China generally have limited options.   Some persons from China would like to start a business if they can’t obtain a job, or may strictly be an entrepreneur and bypass the job market to open a business.  Well, for most country’s this is an option through an E2 visa, but its not an option if you’re from China unless the Chinese National would like to invest $500,000 to $1,000,000 (EB5 Investor Green Card) in a business that will create 10 US full time jobs within the first 2 years.   The reason being is E2 visas are available for nationals from countries that have a Treaty with the United States, thus China and India do not have the necessary treaty to make its persons eligible for an E2 visa.  As I have argued in past articles, Congress should eliminate the Treaty requirement and make an E2 visa available to everyone.   As the New York Times article states, 87,000 people from China received permanent residence in the United States.  Unfortunately, the supply of green cards for persons from China does not come anywhere near equaling demand.  There are essentially 3 ways to obtain permanent residence in the United States (there are more ways but for all practical purposes these are the main 3 ways):
  1. Marriage to a US Citizen – Congress allots an unlimited amount of marriage based green cards per year for persons marrying U.S. Citizens;
  2. Family based other than marriage through a US Citizen – Congress allots up to 226,000 family based green cards and each country is capped at at a maximum of 7% of the total allotment.   
  3. Employment based through a personal achievement (ie. extraordinary ability EB1, job offers for advanced degree and skilled workers EB2 and EB3, and Investors EB5) – Congress allots up to 140,000 employment based green cards and each country is capped at at a maximum of 7% of the total allotment.
The excess demand based on Congress’ allotment of available green cards and country limits of 7% creates a backlog for both family based and employment based green cards.  For instance, a person from China or India that is the spouse or child of a permanent resident already living in the United States would be eligible for category F2A green card and would have an estimated wait time of approximately 2.25 years.  A person from China and India eligible for a Employment based green card based on having an Advanced Degree and a job offer from a U.S. employer requiring the advanced degree would have in excess of a 5 year and an 8 year wait period for a green card respectively.  In other words, if a person from China has a Master’s Degree in a highly sought after field such as Computer Engineering, and an employer extends a permanent job offer, a person from China would have to wait 5 years for a green card and go through a lot of zigging and zagging to maintain their non-immigrant status while waiting in the U.S. for this green card.  They also need to hope that over the next 5 years, nothing happens to the permanent job offer.  As we all know, 5 years is a long time to keep the status quo.  In my opinion, this 5 year wait period (6 years if a Chinese National is qualified for an EB3) can be a big deterrent for someone highly skilled to wait when Canada and Australia, both known for having much more relaxed permanent residence rules have growing economy’s with demand for these same skilled workers.
As the New York Times suggests, there is much demand for permanent residence in the United States than Canada, Australia for some of the best and brightest people from India and China.  This also applies to other countries such as India where in many situations, there is even greater demand than from China, especially in the IT field.  The United States greatly benefits from Immigrants, and unfortunately the laws and cap on visa numbers and permanent resident numbers do not quite address to accommodate this demand.  With the election over, hopefully Congress and President Obama will address the problems of our immigration system.  

Same Sex Marriage = Marriage Green Card or Fiancé Green Card?

Gay Marriage Green Card

Update: The U.S. Supreme Court recently overturned the 1996 Defense of Marriage Act, also known as DOMA.

One of the perks of being a Chicago Immigration Lawyer or an Immigration Lawyer in general is meeting people of all walks of life.  We work with clients on their immigration matters from not only Chicago, but around the U.S. and the world and we get to work on some of the most interesting issues.  A challenging part is that the U.S. Immigration Laws are not sufficient to deal with the many inquiries we receive.  One common question we regularly receive is on the topic of gay marriage.  The question that generally arises is “I married my partner overseas or in California…etc, can we file a Marriage Green Card Application?”  The simple answer unfortunately is no.  The not so simple answer is, even though some states recognize same sex marriage, the U.S. government does not.  Immigration Law is Federal, meaning state laws are not controlling but rather U.S. law is what is controlling for Immigration purposes.

Defence of Marriage Act (DOMA) – Traditional marriage  In 1996, President Bill Clinton along with both the House of Representatives and the Senate signed into law the Defense of Marriage Act (DOMA).  Under DOMA, a U.S. state is not required to recognize same sex marriages.  Section 3 of DOMA by effect states that the U.S. Government does not recognize gay marriage.  Section 3 of DOMA states: :`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.’.”

Same sex marriage

Barrack Obama In May 2012, President Obama has been hinting towards supporting the U.S. Government recognizing gay marriage.  Whether this is for his campaign or it’s something that will be seriously proposed as law remains to be seen.  If same sex marriage is recognized by U.S. Law, it could have enormous immigration implications relating to fiancé visas and marriage green cards.

Fiancé Visa/ Marriage green card for heterosexual couples Under U.S. Immigration Law, U.S. Citizen may petition for his or her fiancé or spouse.  Marriage green cards or marriage visas go through either the Immigrant Visa process or adjustment of status process.  Fiancé visas are commonly referred to as K1 visas or K1 fiancé visas allow an overseas fiancé to enter the U.S. to marry their U.S. Citizen spouse.  Once married within 90 days of entry on the fiancé visa, the married couple must apply for the adjustment of status process so that the foreign spouse can continue to live in the U.S.  Under U.S. Immigration law, a U.S. citizen and spouse have an Immediate Relative relationship.  The benefit of being an immediate relative in a permanent residence application is that an immigrant visa is always available for them.  This may not seem like a big deal, but under the Immigration preference system it is.  Specifically in family based immigration, there are Immediate relatives, and four types of preference relatives (Details of the preference system are beyond the scope of this article, but for example a fourth preference relative is the sibling of a U.S. citizen, depending on the country of origin of the Applicant/Beneficiary, their wait time for a green card could have anywhere from a 10 year to 20+ year.)  Now, compare that to the spouse of a U.S. citizen who is an Immediate Relative and their wait time is much shorter as they only need to wait for the case to be processed for an available green card.  Currently, a K1 fiancé Visa processing time ranges from 5 to 8 months on average.  An Immigrant Visa or marriage green card currently has an average processing time of 6 to 10 months until interview.  The Chicago Office for example processes marriage green cards or adjustment of status cases in approximately 90 to 120 days on average.

So if the U.S. government recognized same sex marriages, logically gay couples would be afforded the same K1 fiancé visa or marriage green card rights as opposite sex couples.  At the moment this is not something being talked about.  However, I suspect that if gay marriage gets closer to being recognized by the U.S. government, it will be.

Is a K1 fiancée visa the same as a green card?

What is a K1 fiancée visa? This is a question that causes a lot of confusion.  The answer is no.  However, a fiancée visa can quickly lead to a permanent residency (green card).  A fiancée visa (K-1 visa) enables a US Citizen to bring an overseas fiancée to the United States so that the couple can get married.  The sole purpose of the visa is to get married in the US.  The marriage must take place within 90 days of the overseas fiancée entering the United States.  If the marriage does not take place within 90 days, the fiancée must leave the United States and visa extensions are not granted to the K1 visa.  The good news is once the marriage takes places within the 90 days, the overseas fiancée can and should apply for a green card if the couple intends on living in the United States.  Once the green card application is issued, it will be on a conditional basis for two years.  After the two years is up and the couple is still married and together, the condition can be removed jointly through application.   If the couple is not married anymore or is divorced, it becomes very complicated.  It seems straightforward enough, but frequently it is not. Conditional Green card – Removal of Condition I-751 It is well known that an overseas person marrying a US Citizen may qualify for a green card.  Unfortunately, due to many fraudulent marriage or fiancee visa applications, the United States Citizenship and Immigration Services (USCIS) generally pays much closer attention to applications relating to fiancé visas and marriage green cards than other type of family based petitions. It becomes even more complicated if the couple is no longer together or is divorced after the conditional green card is issued and expired.  The purpose of the the need to remove the condition of the marriage based conditional green card is due to the governments concern of fraud.  The government knows many couples applying for green cards through a marriage and fiancé visa are solely for immigration status purposes and not for “love.”  Consequently, even the most legitimate relationships are scrutinized to determine if they really are marriages of love and not marriages of immigration purposes. The worst case scenario is a legitimate marriage for love is denied and the couple is either required to live apart or move to another country.  Less harsh consequences are an application may be substantially delayed due to additional scrutiny causing stress in the couples lives and in some cases forcing the couple to put their lives on hold.  For these reasons, it is important to put your best case forward and show that your relationship and your marriage is for love and to save on reduce the risks of being delayed and put through significant amounts of stress. Marriage and fiancé visas are an excellent way to bring your loved one to this country.  If done right, it will ensure that your next holiday season will be spent with your loved ones. Please contact the Cipolla Law Group today if you are seeking an experienced Chicago based K1 Fiancée Visa lawyer.

Should We Apply for a Marriage Visa (K3), Immigrant Visa, Fiance Visa (K1), or Marriage Green Card & Adjustment of Status?

A common question we hear is, “what should we do, should we apply for a k1 fiance visa, k3 marriage visa, an Immigrant Visa, or marriage green card adjustment of status?” Our common response is, it depends on your individual circumstances. The first factor is under immigration law what the client’s are eligible for. For example, is the beneficiary in the United States on a valid visa, have they accrued unlawful presence, is the US Citizen overseas or in the US. This is the most important question so as to determine what the clients are eligible for. The second factor is when and where do the clients want to get married? If the fiancé is overseas, and they can wait the 6 to 12 months for the case to be adjudicated, then the answer is a fiancé visa is the appropriate visa. Alternatively, is the fiancé in the US on a valid visa such as a student visa or h1b visa? Then the clients may be able to file for a marriage green card and adjustment of status. Or in more complicated scenarios, is the client here on a tourist visa or a visa waiver. There are a lot of variables in marriage visas, fiancé visas, and adjustment of status cases. And the right answer generally depends on the clients individual circumstances. Feel free to contact us to analyze your case and determine if we can represent you in your marriage green card, fiancé visa, or adjustment of status case.