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Immigration Law Advisor U.S. Department of Justice http://eoir-vll/lib_index.html Executive Office for Immigration Review Published since 2007 Immigration Law Advisor June-July 2013 A Legal Publication of the Executive Office for Immigration Review Vol. 7 No. 6 Understanding Marriage-Based In this issue... K Nonimmigrant Visas: The Difficulty in Saying “I Do” Page 1: Feature Article: by Josh Lunsford Understanding Marriage- Based K Nonimmigrant do.” Two of the most powerful, controversial, and misunderstood Visas: The Difficutly in words in the immigration field. For aliens hoping to immigrate Saying “I Do” “Ito the United States, these words can be the path—and Page 5: Federal Court Activity sometimes an immediate one—to acquiring permanent residence. See, e.g., Page 9: BIA Precedent Decisions section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i). For aliens in the country illegally, these words can be the difference between an order of removal and a grant of relief therefrom. See, e.g., section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1). For others, these words are nothing more than an open invitation to the backdoor The Immigration Law Advisor is a See, e.g. Hello, I Love You, professional newsletter of the Executive of our immigration system. , David Seminara, Office for Immigration Review Won’t You Tell Me Your Name: Inside the Green Card Marriage Phenomenon, (“EOIR”) that is intended solely as an Backgrounder (Ctr. for Immigr. Studies, D.C.), Nov. 2008, available at educational resource to disseminate http://cis.org/marriagefraud. information on developments in immigration law pertinent to the The impact of marriage on today’s immigration system is undeniable. Immigration Courts and the Board Over the past 3 years, more than 800,000 immigrant visas have been issued to of Immigration Appeals. Any views spouses of U.S. citizens. Randall Monger & James Yankay, Office of Immigr. expressed are those of the authors and Stats., Dep’t of Homeland Sec., Annual Flow Chart: U.S. Legal Permanent do not represent the positions of EOIR, Residents: 2012, at 3 Table 2 (Mar. 2013), available at http://www.dhs.gov/ the Department of Justice, the Attorney sites/default/files/publications/ois_lpr_fr_2012_2.pdf. This is more than General, or the U.S. Government. This the number of visas that were issued to all family-based preference categories publication contains no legal advice and nearly twice that of the employment-based preference categories. See and may not be construed to create id. or limit any rights enforceable by law. EOIR will not answer questions On top of having the highest rate of visa issuance for all immigrant concerning the publication’s content or categories, the increasing role of marriages in the immigration system how it may pertain to any individual prompted Congress to create an entire nonimmigrant category—the K case. Guidance concerning proceedings visa—to facilitate marriages between alien and citizen fiancé(e)s and family before EOIR may be found in the Immigration Court Practice Manual unity for married couples awaiting approval of an immigrant visa petition. and/or the Board of Immigration See Section 101(a)(15)(K) of the Act, 8 U.S.C. § 1101(a)(15)(K). Despite Appeals Practice Manual. being in existence for over four decades, courts and scholars have struggled to 1 define the legal rights of individuals who enter the United FY07AnnualReportTableXVIB.pdf (reflecting a change States under one of the K nonimmigrant categories. This from 15,577 K-3 and K-4 issuances in 2003 to only 362 article explores these uncertainties and tries to clarify the in 2012). legal consequences of various events with respect to each K nonimmigrant class. These eligibility requirements are generally undisputed. Instead, the bulk of the present uncertainty Overview stems from the rights of K nonimmigrants after entering the United States—namely, their ability to adjust status to There are currently four different K nonimmigrant that of a lawful permanent resident. The only statutory categories. K-1 nonimmigrant visas are for the provision that provides any guidance on this issue is fiancé(e)s of United States citizens. Section section 245(d) of the Act, 8 U.S.C. § 1255(d), which 101(a)(15)(K)(i) of the Act. A nonimmigrant visa will provides: be issued under this section if the alien and U.S. citizen fiancé(e)s can establish that they (1) have a bona fide intent The Attorney General may not adjust, to marry, (2) are legally able to conclude a valid marriage under subsection (a), the status of a within 90 days of the alien fiancé(e)’s admission into the nonimmigrant alien described in section United States, and (3) met in person at least one time in the 101(a)(15)(K) except to that of an alien prior 2-year period. See also section 214(d)(1) of the Act, lawfully admitted to the United States on 8 U.S.C. § 1184(d)(1); 8 C.F.R. § 214.2(k)(2) (providing a conditional basis under section 216 as a a waiver for the third requirement upon a showing of result of the marriage of the nonimmigrant “extreme hardship” or if “compliance would violate strict (or, in the case of a minor child, the parent) and long-established customs of the K-1 beneficiary’s to the citizen who filed the petition to foreign culture or social practice”). K-2 nonimmigrant accord that alien’s nonimmigrant status visas are reserved for the “minor children”1 of a K-1 under section 101(a)(15)(K). beneficiary who are accompanying or following to join the alien fiancé(e) to the United States. Section However, this provision only begins to scratch the surface 101(a)(15)(K)(iii) of the Act.2 Together, these two of the numerous issues facing K nonimmigrants in categories accounted for over 98% of all K nonimmigrant their journey to obtaining permanent residence—and, visas issued last year. U.S. Dep’t of State, Nonimmigrant realistically, fails to do even that. Visas Issued by Classification, 2008-2012 (2013), available One Rule, Two Meanings at http://www.travel.state.gov/pdf/FY12AnnualReport- TableXVIB.pdf [“2008-2012 NIV Statistics”]. A straightforward reading of section 245(d) would suggest that all K nonimmigrants are equally The remaining two categories are reserved for K-3 obligated to meet the requirements under section 245(a) and K-4 nonimmigrants. A K-3 nonimmigrant visa is in order to adjust status—that is, each K nonimmigrant available to an alien who (1) has concluded a valid marriage must demonstrate admissibility and visa eligibility and with a U.S. citizen, (2) is the beneficiary of an immediate availability and must show that adjustment should relative visa petition filed by the U.S. citizen spouse, be granted as a matter of discretion. And while this and (3) seeks to enter the United States solely to await statement may be technically correct, these requirements approval and availability of an immigrant visa. Section are satisfied in rather different manners with respect to 101(a)(15)(K)(ii) of the Act. The K-4 classification was each K nonimmigrant category. created for the “minor children” of a K-3 beneficiary who are accompanying or following to join the alien spouse The easiest way to understand the requirements to the United States. Section 101(a)(15)(K)(iii) of the related to each K nonimmigrant category is to start at its Act. In light of increasingly short processing times for origin. Added to the Act for the first time in 1970, the immigrant visas, K-3 and K-4 nonimmigrant visas are K nonimmigrant visa was originally created to provide a not nearly as popular as they once were. Compare 2008- means by which a U.S. citizen could arrange for his or her 2012 NIV Statistics, supra, with U.S. Dep’t of State, alien fiancé(e) to obtain lawful permanent residence. Act Nonimmigrant Visas Issued by Classification, 2003-2007 of Apr. 7, 1970, Pub. L. No. 91-225, § 1(b), 84 Stat. 116, (2008), available at http://www.travel.state.gov/pdf/ 116. Once a K nonimmigrant visa was secured and the 2 alien fiancé(e) entered the United States, the couple had the adjustment procedures of former section 214(d) to 3 months to conclude a legally valid marriage. Section section 245(a), Congress did nothing to either change 214(d) of the Act, 8 U.S.C. § 1184(d) (1970). Upon this practice or provide another method by which alien conclusion of a timely marriage, and provided that he or fiancé(e)s could satisfy the new requirements of visa she was otherwise admissible, the alien fiancé(e) filed a eligibility and availability. See id. Form I-485 (Application to Register Permanent Residence or Adjust Status) and the Attorney General was required Regardless of the new requirements, the Board to “record [his or her] lawful admission for permanent concluded that there was no reason to depart from the residence.” Id. Although likened to adjustment of status historical K nonimmigrant process. Instead, to resolve under section 245 and similarly initiated through the the fact that alien fiancé(e)s “cannot satisfy the literal filing of a Form I-485, this entire process was “under a terms of sections 245(a)(2) and (3),” the Board created a separate and distinct provision of the statute, carrying legal fiction by which K-1 nonimmigrants are “recognized its own requirements, and having no relationship to the as the functional equivalents of immediate relatives for requirements of section 245.” Matter of Dixon, 16 I&N purposes of immigrant visa eligibility and availability.” Dec.
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