THE Board of Immigration Appeals (BIA) recently held that a person caught applying for a K-1 fiancée visa in a “fixed relationship” (meaning having no intention to have a life together), is subject to the same lifetime ban as a person caught in a fixed marriage.
Therefore, whether you are applying for a green card through a marriage, or a K-1 visa, there must be love, or no future petition in any category can ever be approved.
In that particular case, a person was petitioned for a K-1 visa by a U.S. citizen. When he appeared for his interview at the U.S. Consulate, the case was put under investigation and interrogation. Both he and the U.S. citizen fiancée provided inconsistent answers about their relationship, and the petition was sent back to USCIS for revocation. There was no dispute that the person’s engagement with his U.S. citizen fiancée was not bona fide.
Years later, the person’s U.S. citizen mother filed a petition for him as the single adult child of a U.S. citizen (F-1). Although that F-1 petition was initially approved, USCIS later revoked the approval on the grounds that because his relationship to his U.S. citizen fiancée was fixed, he was, thereafter, subject to a lifetime ban for having entered into a fixed relationship. He appealed to the BIA.
The issue on appeal was, “whether an alien who has entered into a fictitious or ‘sham’ engagement that served as the basis for a K-1 nonimmigrant fiancée visa petition has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws and is therefore subject to the bar at Section 204(c) of the Act.”
In other words, if a person is caught in a fixed marriage, they are definitely subject to a lifetime ban of ever having any future petition approved. The issue here was whether that same lifetime ban applied to a fiancée visa, where the couple had not yet married. The BIA concluded that the same lifetime ban that applies to fix marriages would also apply to fixed fiancée visas.
I want to emphasize that you should only marry for love, and on your wedding day have the intention to have a life together. If the relationship is fixed and you are caught, no future petition can ever be approved, even if the new relationship is real and there is true love. Many times, I have people coming to me for consultation where they have married a U.S. citizen for love, have several children with them, and that U.S. citizen now wants to petition them. Or, the person now has a U.S. citizen child over 21 years of age. However, they were previously caught in a fixed marriage. That means any future petition, whether by a new loving spouse or an adult U.S. citizen child or a U.S. citizen parent may not be approved.
On the other hand, there are situations where a person truly had been in a loving relationship and intended to have a life together with the petition, but the USCIS wrongly concluded it was a fixed marriage. It could be possible in those situations to “unfix” such a finding, by proving and documenting the original relationship was for love. I would strongly recommend the person consult with and have an attorney handle their case to help prove the original relationship was for love.
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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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