Entry visas that create adjustment problems
Friday, 03 April 2009 22:18
Atty. Robert Reeves & Nancy Miller
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Previously, we talked about the ramifications of entering on a C or D visa. This time we will discuss the import of entry on a K or a J visa or without inspection.
K-1 visas are issued to fiances who are coming to the United States solely to enter into a valid marriage with the petitioner within 90 days of entry. The parties must be legally free to marry and the marriage must be one that is recognized under U.S. law. The parties must have met in person within 2 years of filing the petition (with some exceptions). The petition can be denied if the petitioner has a conviction for certain crimes involving violence, sexual assault, child or elder abuse, stalking or drugs, unless the United States Citizenship and Immigration Services (USCIS) is satisfied that the beneficiary will not be in danger. The petition can be denied, or an investigation may be conducted, if the petitioner previously filed petitions for two or more fiances.
The K-1 may adjust even if the marriage does not take place within 90 days as long as the application for adjustment is based upon the marriage to the K-1 petitioner. K-2’s, who are unmarried children under the age of 21 of K-1s, can adjust even if the child is over 18 at the time her parent marries the USC because she is not entering as a step-child but rather as the child (under 21) of the K-1.
K-3 visas allow the spouse of a USC who has filed a family petition on her behalf to come to the U.S. to await the approval of the petition. If the petition has already been approved, the alien will not be issued a K-3 visa. She will have to immigrate through regular processing. K visa holders cannot change status. K-3’s can extend that status if the family petition or the adjustment application is still pending. With one exception, they cannot adjust status based on any ground other than the marriage to the person who filed the K petition. If the USC spouse is abusive, the K holder can adjust under the Violence Against Women Act. The K-3/K-4 (unmarried children under the age of 21 of K-3s) status is terminated within 30 days of any of the following occurrences: the denial or revocation of the I-130; the denial or revocation of the application for adjustment; the marriage of the K-4 (minor child of the K-3); or the termination by divorce of the K-3 marriage. In the 9th Circuit, divorce does not prevent the K visa holder from adjusting.
