AILA Conference 2021 Day 3 Session 2: 90-Day Fiancé Visa

2021 AILA Conference Day 3 Session 2: 90-Day Fiancé Visa Tips

Categories: Resources
Published: June 13, 2021

Tags: AILA | K-1

2021 AILA Conference Tips For 90-Day Fiancé Visa:

In this video, Attorney Joseph gives some of the best tips & considerations when applying for the 90-Day Fiancé Visa also known as a K-1 visa. He also explains how it’s not always as easy as the TLC show makes it seem and provides some questions you should be asking to help your case.

Learn more by watching the full video.

Full Video Transcript

The “90-day fiance visa” in the time of COVID and online dating. We have an esteemed panel of awesome immigration attorneys sharing their key insight and a lot of success stories. Let’s dive into it.

[Tsang Intro Splash] 

[0:15] Hi everyone, this is Joseph, and this is Day Three, Session Two of the AILA 2021 Conference. This session is focused on the fiance visa. If you don’t know about the fiance visa, you should at least know the show from TLC, the 90 Day Fiance. It’s basically that idea. Now, a lot of my friends watch the show and they think it’s so easy to get the fiance visa. Well, this particular forum will show you all the complexity of actually getting that visa and all the intricacies in between. The TV show makes it super simple. It’s kind of like home remodel, right? Like, “Oh, you just want this here and that there, and bam, the thing is done.” But when you actually remodel, it takes a year, it takes a hundred thousand [dollars], it’s a nightmare. But the show makes it super simple. The purpose of this forum is to actually show you and talk about some of the intricacies in between, and there are so many. Let’s get to it.

[1:03] The first thing you should know about if you’re marrying somebody to get a green card or if you are trying to bring a foreigner to the US and get them a green card is that you need to disclose your criminal records. This is applicable to the K1 visa or the I-130. The panelists themselves talked at length about the Adam & Walsh Act. Basically, the government of the United States wants to protect foreigners from getting abused by US citizens, etc., because maybe they have criminal backgrounds and they don’t qualify to bring somebody over. Only if you have a clean record, right, then you can bring somebody over. What falls under the Adam & Walsh Act? You could totally look that up, but that is something to know.

[1:47] In our firm, where somebody petitioned somebody over it, the foreigner had no idea, and everything was going smoothly, and suddenly the case gets denied and they have to wait years before this can get overturned. We can file the appropriate waiver, but in the interest of the foreigner, the government is denying the visa because if they are afraid, if you come over and you live with this particular US citizen, you might get abused. So if you’re in this arrangement, you need to disclose the criminal record. And of course, just like a company merging with a different company, you should do your due diligence.

So if you don’t hire an attorney, that’s totally fine. K1 visas, the application itself, is not that difficult. It’s all the surrounding issues that make it difficult. If you think the other person might have a criminal record and you’re not sure, it’s good to hire an attorney to do a little due diligence on their background related to the crime part. And although not technically legal in many places, you really should find out if you are related to the person you are marrying because if you are, well, that makes things a little bit complicated. And for attorneys, when you are interviewing clients like, “Oh, wonderful, you want to marry so and so, are you related?” You need to ask that question because a lot of cases are being denied because of the actual familiar relationship. That’s not good.

[3:06] And the third is almost like a no-brainer, but are you already divorced? Because if you’re not divorced, then you’re kind of committing polygamy, and that’s sort of illegal in the United States. So maybe outside of the US it’s fine, or maybe in your home country like the Philippines, it’s not okay to get divorced. There is no divorce court. You can’t get divorced. Well, then you have to fly to a third country to get divorced. You have to get your marriage dissolved, you have to get divorced in the US. You need to finalize your current marriage before you can actually bring somebody else over. And a lot of times people don’t understand that. They’re like, “Well, I can’t get divorced, so I’m not, and I’m just gonna marry again. Why not? Why can’t I do that?” Well, you need to understand the US law, not just immigration law, but US family law as well.

[3:55] The second thing that the panelists talked about is the multiple K-1 visa applications. If you are a US citizen and you file multiple K1s, then your case will be extra difficult to review if not completely denied. So if you are a foreigner and you are interested in marrying a US citizen, you might want to ask “how many times have you done this?” It’s not the same question as “How many girlfriends have you had? Or boyfriends? How many girlfriends or boyfriends have you had?” How many times have you been married? Those are legitimate questions in a premarital counseling that you should engage in. I totally advocate for that. But other than that, for the logistic purposes of getting your visa approved, you also absolutely need to ask how many times have you filed the K1 visa for somebody else? How many times have you married and got somebody else a green card? Because that might be a red flag to your personal application. And if they’re not willing to disclose that, then there might be a problem. And also, you might just want to ask, “Well, then what happened to them afterwards?”

[Clip from Texas Chainsaw Massacre]

[4:59] The third thing that they discussed about was getting the two-year meeting requirement waived. You know you’re talking to the best immigration attorneys on this subject when they’re bringing out the success stories and the big guns. During the panel, they talked about… they were sharing examples of how they got this meeting requirement waived. At our firm, we’ve only gotten that waived because of religious reasons. We never got it waived for any other reasons, and I couldn’t even think of other reasons to get this meeting requirement waived.

If you don’t know about this requirement, it’s fairly understandable. If you want to marry somebody, if you want to get a K1 visa for somebody, you need to at least have met them in person once in the past two years. And if you haven’t, explain why. Well, for religious reasons, you can’t. Okay, that is understandable. We’ve submitted that and we’ve gotten that waived. But what else? COVID is not that great of an example because two years span, and generally, the processing time for K1 is actually super long, so it might take longer than two years. But what other reason can you possibly not meet the person that you want to marry? Zoom is not, and online video chats are not a good example because there’s only so much you can find out about the other person through online dating. You really need to see each other in person, right, to make sure there’s physical chemistry as well. So, and also, all the filters. Well, anyways, okay, so let’s get rid of all of that.

[6:23] How else can you get the waiver? One of the attorneys shared that their client was just physically too big to get on a plane and fly over there. And also, the other person on the other side of the world, they couldn’t get a visa to fly to the US. So, for that reason, they couldn’t possibly meet in person, and they got that approved. That is remarkable. It’s very sympathetic. That hits all the right notes, and that case got approved, and I love that.

Maybe related to that is a financial reason or career reason. You couldn’t get the time off. You couldn’t pay for a ticket to fly over. You needed to care for your family, and so you couldn’t leave. But every time my clients tell us about those reasons, I usually discourage them, and I really encourage them to try to do it because it’s just so hard to get these types of cases waived. But if you have any cases that are similar to this, or you have stories about you getting it waived, or if you have any suggestions on why you can’t meet the love of your life that you want to get married to for whatever reason in the past two years, please leave a comment below and let us know. But the panelists, they’re great. They share their success stories. I just mentioned one. There are so many others. Feel free to download their session off of AILA Agora and AILA University to watch the full episode.

[7:37] Next, on the topic of the processing time being super long, a lot of people think, “I just want the person to come over, check them out, and if I don’t like them, then I’ll return them, and what’s the big deal? Why is it so difficult? Why do I need to hire an attorney?”

So, a lot of times what people don’t know about the fiance visa, the K1 visa, is that it takes an enormously long time to get processed, to get it approved so that they can actually jump on the plane and fly over. Yes, you might have flown over and met them, all of these things, but the actual K1 visa takes a long time, and there are a lot of reasons for that. And so, that’s one of the complications involved. You have to file the I-129 first, and then once it gets approved, then you have to go to the visa interview. And sometimes, once it gets approved in the US, actually, not some of the times, a lot of the times, even if it gets approved in the US, it gets denied overseas because when they go to the interview, the consular officers face to face interact with the person that you’re trying to marry, and they say, “No, this is definitely fraudulent or this is no good,” they deny it. Then it has to get bounced back to the US, and then you have to get it readjudicated. And this whole time, it could be three years from the time that you actually started filing. And so that’s how long it can take to get this process approved. And you might be wondering, why? Well, there’s actually a lot of good reasons.

[8:58] One of the biggest reasons why it takes so long is because of the amount of fraud that’s involved with this on both sides. Maybe you are a foreigner, and you’re trying to defraud a US citizen, and you just go through this marriage loop to get a green card. A lot of fraud happens that way, and so the US citizen is getting duped. That’s extremely unfortunate. 

On the other side, there are a lot of US citizens who are trying to dupe and fake marriages to bring people in for monetary gain, for whatever reason. So that’s also a big problem. So the Department of State is trying to block all of that. But related to that is, again, BATNA, the Best Alternative Negotiated Agreement. And what I’m saying is because there are so many other easier channels to get a marriage green card, that if you are doing a K1, there might be something wrong with your case. You’re waving a red flag with your situation. 

So maybe you are truthfully in the situation where you really want to check out if this person is compatible with you. You want to live in the US for a few months. You’re not sure if you want to get married, but you want to test out the relationship, so you want to do a test run. That’s really what the K1 visa is meant for, right? They fly over, you try it out, it doesn’t work, then they fly back. No big deal. It’s like a Nordstrom return policy. You want to try out your outfit. “Oh, you know what? It’s a little too tight, it’s a little too loose. I want to return it.” 

[10:22] Well, frankly, it’s not that simple because unfortunately, this has been abused by so many people, so that “Nordstrom” or, in this case, the Department of State, they don’t really want to issue these visas that easily. A lot of people, they fly over on B1/B2 and they adjust and get a green card that way, or they just directly get married and they directly file the green card, and if it doesn’t work out, get divorced. But this whole trying it on and returning thing, it’s actually quite broken. And so that’s why the processing time is that long.

[10:53] And all of the things that we talked about is just getting the K1 visa. We’re not even talking about the K visa spin-offs. What if you got the K visa, you flew over, but then you didn’t get married because it didn’t work out and you stayed here illegally? And then, and then let’s say you reconnected with the person that brought you over on the K1 visa, and then you get married years later. Or let’s say you don’t reconnect with that person, and you marry somebody else. Is that okay? Or let’s say you did get married, and then within a few months, the marriage broke, and you got filed divorced. Are you still eligible to file a 751 waiver to get your green card because your marriage was true, and you had love, but it just fell apart really quickly? Or let’s say you brought your children over to get married, but they were close to 18. Do your children get the green card? There’s so many spin-offs to the K visa that it’s actually a fascinating area of practice. So, for any practitioners that really specialize in family immigration, you need to master the K visa.

[11:52] But the most complicated area, I think, is dealing with the people. As an attorney, you are representing, oftentimes, both parties. You’re representing the US citizen, you’re also representing the foreign national that’s coming over. Many other times, at least they’re both trusting you. Maybe you only signed the engagement with one, and so legally you’re only bound to one. But you’re really giving advice to both parties. And what if you know that one party is duping the other? What do you do? Are you supposed to tell the other person, but you are representing them? And that makes it a whole complicated mess. And you, as an attorney, you really need to figure out how… and ethically you need to figure out how you’re going to deal with this situation.

[12:33] So, the key takeaway is that the K visa is absolutely a mess. It’s highly complicated. It is not what you think. If you’re trying to do it yourself, you should at least get a second opinion. And who better to ask than these esteemed panelists that spoke on this subject? Please reach out to them. Okay, legally, I cannot endorse them. My malpractice insurance is gonna get really angry with me. So if you’re engaging them, it’s not because of my referral or my endorsement. All I’m saying is I watch their videos, I like them, they seem to be nice people. Okay, so yeah, there you go. But you should totally hire a capable attorney to review your application and walk you through the intricacies if you’re trying to do a fiance visa. It’s a fantastic visa category. It’s very, very interesting. If you are the right candidate for it, it totally works. 

And with that, I bid you goodbye. Bye-bye.