DEAR Attorney Gurfinkel:
I am a U.S. citizen, and filed a K-1 (fiancé) petition for my girlfriend in the Philippines. Unfortunately, the case was denied.
I was told by friends it would help if we get married, as that would demonstrate we are truly in love and committed to each other. Would you advise that we get married and I file a spousal petition, to increase our chances of success?
Very truly yours,
SL
Dear SL:
Before you make a decision on what is the best course of action, it is critical to know WHY the case was denied. Depending on the reason for the denial, it could affect the approval of a petition even if you get married. The same problem or issue that existed in connection with a K-1 petition might still exist with a spousal petition. Getting married would not solve or cure that problem. For example:
• Was your girlfriend previously married, and never terminated her first marriage? If that is the case, she is still married to her first husband and marrying her will not cure that issue, but would in fact result to a bigamous marriage.
• Did your girlfriend commit fraud/misrepresentation to the U.S. Embassy when previously applying for a tourist visa or some other immigration benefit? For example, some people might have applied for a tourist visa, but submitted fake documents or lied on the visa application and were charged with fraud. That same fraud is still on their record and will come up, whether in connection with a K-1 petition or spousal petition. In either case, a fraud waiver would be needed.
• Did your girlfriend commit a felony or was arrested/convicted of any crime, which would still be an issue in a spousal petition?
• At her K-1 interview, did she confess she was marrying you to get a green card, and does not truly love you? In that case, although the U.S. citizen petitioner may be madly in love, the U.S. government views this as a “fixed marriage,” as the beneficiary would be basically using the U.S. citizen for immigration benefit.
These are just some of the considerations that you have to take into account in terms of what is the best course of future action. As you can see, getting married does not necessarily cure the problem. That’s why it is important for people to consult with an attorney, who can properly evaluate their situation rather than relying on hearsay or advice of friends or relatives.
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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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