Dear Jath,

I am a New Jersey native living in Ethiopia with my baby daddy in an apartment that has no bathroom or kitchen. My boyfriend, a personal trainer and club dancer, has another child with his American ex-wife. They met in a club and got married in a traditional Ethiopian ceremony in 2016, with plans for him to follow her to the US. When he applied for a tourist visa at the US embassy in Addis Ababa, he was denied. He re-applied to be there for the birth of his child and was denied again. He applied again, armed with a letter of recommendation from a senator, but was denied a third time. Can he come to the US as my fiance?

Ariela and Biniyam

Only US citizens can bring K-1 fiances home. You should meet in person at least once within the last two years. Then you file your intent to marry with USCIS. About half a year to a year or more later, your fiance applies to an interview at an embassy or consulate. With an approved K-1 visa, your fiance can enter the US in K-1 non-immigrant status. After that, you have 90 days to marry and file another application for their adjustment of status to lawful permanent resident (commonly known as an LPR or green card holder). AOS typically takes half a year to a year, depending on your local USCIS field office. A K-1 becomes an LPR on the date their green card application is approved. K-1s can only adjust status through their original petitioner. If your relationship fails, they must leave the US. Even if they marry a different city, they must still leave and reapply for a new petition to return.

His previous marriage complicates matters. The US government considers any marriage valid if it is legal in the jurisdiction where it takes place. It must be a real marriage for love, not for papers. A consular adjudicator is legally obligated to presume that anyone applying for a non-immigrant visa has immigrant intent, and it is your burden to prove otherwise. Applying for a tourist visa was a mistake. With an American spouse and child, there are obvious reasons he’d want to stay and adjust status. She should have petitioned him as her spouse instead of having him apply as a visitor.

Multiple unsuccessful visa applications hurt. The US keeps records of your immigration history – including previous travel, the statuses you were admitted, denied, or paroled in, and notes from past interviews. Without a significant change in your circumstances, each denial increases the chances of further denial, with no refunds. Contrary to popular legend, letters from politicians, religious leaders, employers, or other authorities are like show money in your bank, land titles, jewelry, or designer clothing – they won’t hurt you, but they’re not going to outweigh other factors. The adjudicator might take about 30 seconds to approve or deny. There is no right to counsel, almost no way to appeal, and they don’t have to look beyond your application form. His prior unsuccessful marriage to US citizen matters, as do previous visa denials and violations of immigration or criminal law.

Dear Jath,

I am a dental student from Syria. My wife is a US citizen studying healthcare management in Columbus. Can I get a spousal visa? If we apply, but want to live together until my visa is approved, can she live with me outside the US while my application is being reviewed?

Avery and Omar

Unfortunately, almost all Syrian nationals are currently banned from the US under the third version of Trump’s travel ban against mainly Muslim-majority countries. After years of litigation that mostly favored the challengers, the Supreme Court decided 5-4 that the President has the discretion to suspend foreigners from entry, and does not need to explain his reasoning. You can apply for a waiver of the ban based on undue hardship to you and your US citizen spouse. However, such waivers often take years of invasive checks and administrative delays and are notoriously hard to win.

Nobody likes to be separated, but spousal visas generally take a year or more even in normal times. The US citizen spouse can visit, but remember the point of a CR-1 spouse visa is to reunite you in the US. Ideally, she needs a job and residence where you plan to live, which are difficult to find remotely. Although the process takes longer than the K-1, a CR-1 becomes a legal immigrant the moment CBP stamps your passport. Even without a physical green card, you have rights that a fiance doesn’t, including the ability to work, travel, and to permanently reside in the US.

Dear Jath,

I just met the love of my life in Thailand. I recently got divorced after 20 years of marriage, then suffered a stroke. On top of that, I lost my job, my home, an election for school board, and went broke. While in Thailand trying to put my life back together, I was sitting in a bar one evening and heard the voice of an angel singing.

Buying her a drink led to dinner. 10 days later, I told Annie I would love to marry her. Respecting her cultural traditions, I asked Annie’s dad to bless our marriage. He wants me to pay him her dowry, which comes out to about $15,000 in cash, plus two water buffalo and $6,000 in gold.

Love is priceless, and my friend Chris is willing to lend me the money. How can I bring Annie back to Kentucky with me?

David

Congratulations, Dave! Hope you’ve been filing taxes because recent tax returns or transcripts are the main way the government determines whether you have enough income to sponsor your future spouse for permanent residency. USCIS considers poverty guidelines set by HHS every year and compares them to the adjusted gross income you declare to the IRS.

Unless you’re active-duty military, a petitioner from the US mainland must earn at least 125% of the poverty guidelines for the number of people in your household plus the immigrant(s) you are sponsoring. The poverty line is slightly higher for Hawaiians and Alaskans. Currently, for just you and Annie, you’d need to prove you make at least $21,550 a year to successfully complete the I-864 affidavit of support. Claiming your children as dependents raises your household size and required income.

If you don’t make enough, your friend Chris can step in as a joint sponsor. There is no requirement that the joint sponsor is your family member or even friend. They just have to be a US citizen or LPR domiciled in the US. A joint sponsor must show enough income to meet the I-864p requirement for their household plus 1 for the immigrant beneficiary (but not you, the petitioner), without adding your income to theirs.

A common misconception about the affidavit of support is that the sponsor must give the immigrant a minimum income to live on. This is not true. The affidavit of support binds the primary and/or joint sponsor to repay the government if the sponsored immigrant improperly receives means-tested benefits such as food stamps, Medicaid, or CHIP. This obligation lasts until the immigrant files taxes for 10 years, naturalizes to US citizenship, or dies. As it is difficult to even for eligible citizens or LPRs to get benefits, these situations are rare.

Dear Jath,

I was so humiliated! I’m a model from Brazil with an American fiance. At our K-1 interview, the officer asked me if I’d ever worked as a prostitute! My beloved Michael and I were very offended! Why would they ask that and what should I do?

Juliana

Aside from telltale signs such as huge age gaps or not speaking a common language, consular and border officers ask questions to probe for grounds of inadmissibility. Don’t be shocked by questions asking if you were ever a religious persecutor, Nazi, terrorist, Communist, or genocidal murderer. These are standard questions straight from the law. Remain calm, answer only the questions asked, and always tell the truth. Lying to the government can make you permanently inadmissible to the US.

_________________________________________________________

Attorney Jathniel Shao

Jath Shao is an attorney that drives, flies, and Zooms to wherever his clients need him. Jath also writes about identity, immigration, culture, and politics for Rappler.

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