Seguritan US Immigration Articles

K-1 VISA UNDER SCRUTINY

Earlier this month, news broke out that 14 innocent civilians were killed in a company party in San Bernardino, California. As a result of the mass shooting, the K-1 fiancé(e) visa process is being looked into because Tashfeen Malik, a Pakistani citizen, and one of the terrorists who carried out said shooting came to the US on a K-1 visa and later became a lawful permanent resident.

Several members of the US Congress have expressed concern over the fact that Malik was able to obtain her K-1 visa despite giving fingerprints and other information that were checked and cross-referenced against US immigration, terrorism and criminal databases. As a result, the USCIS is now looking into enforcing stricter guidelines.

The US government has a stringent process currently in place to ensure that marriages are made in good faith and is not ‘sham marriage’ or ‘fake marriage’. Under the program, the two people involved—the US citizen and his foreigner fiancé(e)— must genuinely love each other and have the sincere intent to get married within 90 days of the fiancé(e)’s arrival in the US. Both of them must be legally free to marry at the time a fiancé(e) petition is submitted to USCIS by the US citizen sponsor and must remain so thereafter. The couple must have met in person within the past two years. Proof of the relationship must likewise be shown.

Once the USCIS approves the K1 visa petition, it is forwarded to the National Visa Center where background checks are performed on the foreigner fiancé(e). The NVC will forward the petition to the Consulate that will conduct the interview. During the foreigner fiancé(e)’s interview before the Consulate, he/she is required to show proof of their intent to get married like pictures, letters, travel and hotel records and instant messages to the interviewing officer. Even during this stage, an application can be turned down if it cannot show enough proof of the relationship’s genuineness. In addition, it can be turned down on account of the foreigner fiancé(e)’s police or criminal record. The foreigner fiancé(e) also has to undergo a thorough medical examination.

Upon arrival in the US, the couple has 90 days to get married otherwise the foreigner fiancé(e) can be deported. When he/she applies for Adjustment of Status, they also have to show proof like pictures and joint documents. This is another step the couple needs to hurdle as it usually takes another six months before the ‘green card’ will be released, if at all.

The foreigner wife/husband has to go through another round of fingerprinting and facial recognition and another round of interview by the USCIS before the ‘green card’ is approved. Questions like “Do you seek to engage in terrorist activities while in the US or have you ever engaged in terroristic activities?” need to be answered.

From 1989 to 2014, 512,164 K-1 visas were given following these layers of processes placed to ensure that nobody thwarts the security measures of the United States and to ensure that the couple are really who they purport to be.

It is also important to note that depending on which country the fiancé(e) is from, the process can be even more daunting. The Philippines, for instance, has the largest K-1 visa applicants with over 7,228 Filipinos entering the US in fiscal year 2014, but at the same token, it also has the most difficult process. US citizens often go to the Philippines to meet their fiancé(e) because it is logistically hard for Filipinos to obtain a tourist visa to the US to visit the American fiancé(e).

Needless to say, while we want our borders secure and free from anybody who wishes to cause harm, it is not fair to single out a particular type of visa. US citizens must likewise be free to marry foreign spouses of their choosing. And while more scrutiny and additional screening for the K-1 visa is inevitable, holders of K-1 visa have obtained the privilege to be on American soil by following a long and difficult process.

The Long Wait for Employment-Based Green Card

Many people know that the process of becoming a U.S. immigrant through employment begins with the filing of a labor certification application or an immigrant visa petition which assigns a “priority date” to the foreign national. This priority date determines the foreign national’s place in the line for an immigrant visa.

But many people also make the mistake of underestimating the length of time they must wait before a visa number becomes available to them. For example, if an EB3 preference petition is filed for a professional today, he might assume that, based on the latest visa bulletin which shows an August 1, 2007 cut-off date for the Philippines, his priority date will become current in about eight years.

This is not necessarily true. To understand how long one must wait before his/her priority date is reached, it is useful to have an idea of how immigrant visa numbers are allocated and what the actual demand under a visa category is.

The monthly cut-off date is determined by the Visa Office (VO) of the Department of State (DOS). The VO collects information from overseas consular posts as well as the USCIS with regard to immigrant visa requests. It calculates visa number usage and compares the demand with the allotment, separating it by foreign state chargeability and preference.

If the demand does not exceed the allotment, the category is current and no cut-off date is needed. Otherwise, the category is considered oversubscribed and DOS sets a cut-off date which is the priority date of the first applicant who will not receive a visa number.

Employment-based (EB) immigration operates on a preference system which distributes the limited number of immigrant visa numbers available each year into five general categories. These are: EB1 for priority workers; EB2 for advance degree processionals and aliens of exceptional ability; EB3 for skilled workers, professionals and lesser skilled “other workers”; EB4 for special immigrants, including religious workers; and EB5 for investors. The principal worker’s spouse and children are counted against the available number of immigrant visas.

The law sets a worldwide limit of 140,000 EB visas per fiscal year. The EB1, EB2 and EB3 categories each get 28.6% of the total or 40,040 visas per category. The EB4 and EB5 categories each get 7.1% or 9,940 visas.

However, there is also a per-country limitation in the number of visas available per EB category which is 7% of the total annual limit. This means that only 2,803 visas for EB1 through EB3 and about 700 visas for EB4 and EB5 may be initially allocated to any single nationality group per year. Quite obviously, the visa allocation system works to the disadvantage of populous countries such as India, China and the Philippines.

The complex visa allocation system also involves several mechanisms that reallocate unused visa numbers. Unused visa numbers in EB4 and EB5 “fall up” to EB1. Unused numbers “fall down” from EB1 to EB2 to EB3. If an oversubscribed country has a relatively small demand for family-based visas, the excess visa numbers “fall across” to the EB preferences, as long as the total number use is still within the 7% limit for the country. This also works the other way around, i.e. from employment based to family based. However, the Philippines does not benefit from this type of spillover because it is oversubscribed in both employment and family preferences.

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