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Marriage Green Card vs. Fiancé(e) Visa

Are you a US citizen who recently married a foreign citizen? Well, congratulations, but now you must think of the various ways you can bring them to the US. Typically, there are two ways you can bring your significant other to the US.

You can go down the marriage green card road or go for a fiancé visa. There are different provisions for both, and you must be very careful when selecting the right option. Let’s take a deeper look at the issues you must consider:

How to Make the Decision between the Two?

Here are all the factors you must consider when choosing the right route:

The Place of Your Marriage

If you want to marry in the US, you must go for the fiancé K-1 route as it used to visit the US. Once you qualify for the K-1 visa, it is important to get married within 90 days of admission. You can have an unofficial party back home and then come to the US to cover the legalities. However, if you do not want to marry within the US, you can opt for the marriage green card visa.

Speed of Marriage

If you want to marry right away, you should not opt for the K-1 visa as it can take a long time to process the visa. This is why it is generally a better idea to wait for the K-1 visa to come through before you get married. Or, if you are ethically bound to marry as soon as possible, you can opt for a marriage green card.

US Presence

The K-1 visa is a faster way to get your spouse to the US, as it usually takes up to 5-10 months to get the visa. On the other hand, the green card visa takes a longer time, which is typically 10-16 months.

The Filing Fee

The filing fee for the fiancé visa is higher than the marriage visa, which means if you have a tight budget and cannot afford a high fee, you must go for a marriage visa.

Understanding the intricacies of both these visas and what option you should go for can be difficult, which is why you must get help from experts and allow them to direct you in the right direction. Silmi Law can help you explore all the options you have and give you all the information you need.

Expand Your Horizons this Year via the E-2 Investor Visa

Among their excellent qualities, Chinese people are well-known for are being business savvy and practical in money matters. In their daily lives, and especially in their business practices, they continue their ancient rituals and traditions, such as celebrating the Chinese New Year, also known across Asia as the Spring Harvest Festival, and regarded the world over as the Lunar New Year.  

The Lunar New Year is celebrated on February 1, 2022, ushering in the Year of the Water-Tiger. This is said to be the year of possibilities, attributing it to the majestic and mighty tiger traits, revered in various cultures as the mark of royalty or even deity. In the Chinese Zodiac, the Tiger, alongside the enigmatic Dragon, is the most notable animal. Those born under these signs are the leaders; they are brilliant, ferocious, and inspiring. Further, the Tiger-born are extraordinarily wise, charming, creative, courageous, and confident. They are always full of verve and passion, especially when achieving their goals.

We invite you to do the same; unleash the Tiger in you and pounce at your chance to experience a taste of the American Dream via the E-2 Investor Treaty Visa, a classification reserved for the business elite.

Here are a few essential things you need to know about the E2 Investor Visa:

  • The E-2 Treaty Investor Visa allows foreign nationals to live and work in the U.S. to do business. With it, setting up one’s own business or purchasing an existing business is possible.
  • Formally known as the E-2 nonimmigrant classification, it allows nationals of a Treaty Country (nations with which the United States maintains a treaty of commerce and navigation, or with which the United States maintains an international qualifying agreement) to be admitted when investing a substantial amount of capital in a U.S. business.
  • The U.S. Department of State’s Bureau of Consular Affairs website has a Treaty Countries section which contains the list of countries with an E-2 Treaty with the United States. If you are a national of these countries, you may be eligible for this classification.
  • Countries like Russia, Brazil, and India do not have this treaty with the U.S; as such, nationals from these countries may not apply for this visa at present. Interestingly, not all the Chinese can also qualify as nationals from the People’s Republic of China (known as Zhongguo). Only citizens from the Republic of China (Taiwan) may apply for the E-2 Visa.
  • E-2 Visa holders may be granted a Social Security Number. Certain employees of such a person and their dependents may also be eligible for this type of visa and its benefits.
  • It is a nonimmigrant classification, so this does not lead to permanent residence or a green card. Holders of such a visa may enjoy a maximum initial stay of two (2) years in the United States.
  • Some confuse this for the EB-5 Immigrant Investment Visa, which leads to lawful permanent residence. The significant difference between the E-2 Investor Visa and the EB-5 Immigrant Investor Visa is that the latter requires a minimum investment of $500,000. In contrast, the E-2 only requires a “substantial” amount of capital. Also, the EB-5 visa requires creating ten full-time jobs for U.S. workers, while the E-2 visa has no job creation requirement. Lastly, as with most nonimmigrant privileges, the E-2 Visa undergoes a faster processing time.

Just being business-savvy like the Chinese and brave like the Tiger is not enough! You also need to obtain expert advice regarding the perplexing U.S Immigration system. If you’re eager to navigate the E-2 Investment course successfully and to learn more about other immigration options which may be available for you, call Silmi Law today! Take Matters Into Your Own Hands this Lunar New Year!

What do I need to know about obtaining an immigrant visa through marriage?

The visa application process can be expensive and time-consuming, so it is essential to rely upon accurate information regarding options for immigration to the United States as errors can result in the refusal of your visa application. If one is in a situation where marriage to a U.S. based individual is likely below, we provide factors to consider before deciding what action to take next.

So, let’s discuss what happens to your visa application when marriage is planned.

What do I need to know about obtaining an immigrant visa through marriage?

The visa application process can be expensive and time-consuming, so it is essential to rely upon accurate information regarding options for immigration to the United States as errors can result in the refusal of your visa application. If one is in a situation where marriage to a U.S. based individual is likely below, we provide factors to consider before deciding what action to take next.

So, let’s discuss what happens to your visa application when marriage is planned.

 

First, determine the status of your partner.

If you marry a U.S. citizen and are physically present in the U.S., you may be able to undertake an adjustment of status. If you are outside of the U.S. and are not yet married, you may be able to enter via a K-1 visa filed by your fiancé that will make you eligible to enter the U.S.A. to get married within 90 days. Afterwards, your partner will then have to petition you as their spouse. The family-based immigrant route through marriage is considered a relatively straightforward way to obtain a permanent resident card (green card), provided that the marriage was entered in good faith and that you can demonstrate the fundamental nature of the marriage union as part of the marriage-based immigration process is an interview by a United States Citizenship and Immigration Services (USCIS) officer to inquire about the nature of the relationship and whether it has been entered into in good faith.

Additionally, if your partner is a permanent resident but not a U.S. citizen, they will also be eligible to apply for you to become a permanent resident. However, delays may be possible before you receive your green card due to quotas under this category.

Also, for an individual who is without status in the U.S., adjustment of status to a green card is permitted in the case of marriage to a U.S. citizen but is more complex if one is marrying a permanent resident; in that case, you should consult with a qualified immigration attorney as several case-specific factors need to be weighed.

 

Are you planning to settle down in the U.S. or return home?

Individuals who enter the United States as tourists (B2 Visa) or students (F1) and are subsequently married can have complex issues that require a knowledgeable immigration attorney to advise, so their interests are protected. First, it is not permitted to enter the United States on a tourist or student visa (with some exceptions) if you intend to remain permanently in the U.S. However, among the only things more complex than U.S. immigration rules is love! One may never plan to meet someone during a visit in the course of study; however, things happen in life. Where circumstances change, intentions follow. Thus, if one enters intending to be on a brief visit and subsequently falls in love and is married, the law allows the visitor to file an adjustment of status according to their U.S. citizen spouse petitioning on their behalf.

 

Risk of Fraudulent Entry

The government will find a presumption of fraud to exist where an individual who enters the U.S. on a nonimmigrant visa such as a tourist or student visa applies for adjustment of status (to a green card) within 90 days of entry.

The applicant will then have the burden to overcome the fraud finding to successfully adjust their status to a green card regardless of whether they are in a good faith marriage. The scam here pertains to whether they committed fraud to enter the U.S. with existing intent to immigrate.

It is well-known that many travellers enter the U.S.A. under visitor visas to get married and then apply for their green cards with the U.S. to avoid the long process of waiting for their marriage-based immigrant benefit from their home countries through Consular Processing.

Customs and Border Patrol officers are trained to detect whether visitors to the U.S. are entering under false pretenses.

That is why it is always recommended to obtain a K-1 visa (Fiancé visa) if one intends to get married in the U.S. While the visa application process may take longer, it will save time and costly legal expenses in the long run if you intend to enter the U.S. to get married.

 

Conclusion:

Suppose you have an existing nonimmigrant visa and intend to marry in the U.S. and become a permanent resident. In that case, the most thoughtful and safest way is to have your partner file a K-1 Visa (Fiancé visa) for you so that you can enter into the U.S. to get married and apply for your immigration benefits within the United States. Alternately, suppose already married or you marry outside of the U.S. In that case, you may have your spouse file a marriage-based immigrant petition for you via consular processing, wherein you will be able to enter the United States with your green card already in hand. Following these essential guidelines will ensure a smooth family-based immigrant process and provide convenience and peace of mind.

Mistakes to avoid with EB1A recommendation letters

The below note by Attorney Sharif Silmi is adapted from the USCIS Policy Manual instructions to adjudicators regarding the probative value of ‘recommendation letters of support’ in an EB1A petition.


Many petitions to classify a person with extraordinary ability contain recommendation letters of support. Letters of support, while not without weight, should not form the cornerstone of a successful claim for this classification.


Instead, the statements made by the witnesses should be corroborated by documentary evidence in the record. Letters ought to be testimonial in nature, a qualified party
making specific statements based on their authority, personal knowledge and expertise.


The letters should explain in specific terms why the witnesses believe the beneficiary and their contributions to be of great significance and the caliber of a person with extraordinary ability. Letters that merely reiterate USCIS’ definitions relating to this classification (i.e. exceptional, significant, outstanding, of major significance) or make general and expansive statements regarding the beneficiary and their accomplishments are generally not persuasive.


Letters must be credible. The relationship or affiliation between the beneficiary and the witness is also a factor USCIS will consider when evaluating the weight of witnesses’ statements. It is generally expected that one whose accomplishments have garnered
sustained national or international acclaim would have received recognition for their accomplishments well beyond the circle of his or her personal and professional acquaintances.


In some cases, letters from others in the beneficiary’s field may merely make general assertions about the beneficiary, and at most, indicate that the beneficiary is a competent, respected figure within the field of endeavour. Still, the record lacks sufficient,
concrete evidence supporting such statements. These letters may be considered but do not necessarily show the beneficiary’s claimed extraordinary ability.


Ultimately, a successful EB1A petition will consist of extensive documentary evidence that is contemporary to the applicant’s contributions throughout their career. Support letters can put the contributions in context but are not a substitute for existing documentary evidence.

Can I Travel While Naturalizing?

While you are applying for naturalization in the United States, you are allowed to travel. There are no travel restrictions after completing your Form N-400, also called the Naturalization Application. You are free to go abroad while your application is processed, one of the benefits of legal permanent residence or a green cardholder. However, there are some factors that you might want to take into consideration before traveling to minimize the risk of running into any problems.

Important Information to Keep in Mind before Traveling During the Naturalization Process

  1. Naturalization Appointments

During the naturalization process, it is mandatory to attend three crucial appointments. Traveling during this time may slow down your N-400 process timeline because you might have to reschedule these appointments. Within a few weeks of filing your naturalization application, USCIS will schedule a biometrics appointment for you. The naturalization interview, which will take place in a few months, will be the second appointment for most naturalization candidates. Finally, permanent residents are sworn in as citizens of the United States during the oath-taking ceremony. If the appointment letters are ignored, USCIS may deny the N-400, so it is best to make these appointments before planning a trip abroad. Traveling outside the US for a short time after completing Form N-400 is usually not a problem if you maintain your appointments. In addition, if you must travel for an extended period throughout the naturalization process, entrusting all USCIS communications to a trustworthy friend or family member to ensure you are constantly updated while you are away will help you avoid any possible issues.

  1. Continuous Residence & Physical Presence requirements

It would help if you met continuous residency and physical presence criteria while traveling overseas. The length of your trip is another element to consider, particularly if you are traveling outside the country. After completing Form N-400, the continuous residency and physical presence criteria for naturalization remain in effect. As a result, you must not go on a long trip (not more than 180 days), and you must always keep track of your time spent outside the country. If you are outside the US for six months or longer, USCIS will assume you’ve broken the continuous residency requirement. Denial of your N-400 may occur if an interruption in continuous residence is established.

Individuals who have already spent a significant amount of time outside the United States within their statutory period should avoid going too far. The criteria for being eligible for people applying based on five years of permanent residence is thirty months of physical presence in the United States. Travelling will continue to count against the physical presence criterion during the naturalization process.

Takeaway

To conclude, you are free to travel outside the United States after filing for naturalization. However, keep in mind that Permanent residents will be subject to inspection and will be required to show legitimate proof of permanent residency (usually a green card) when reentering the United States. Furthermore, all applicants should be aware of travel’s impact on their application. Before making travel plans, it is advisable to first consult with a competent immigration lawyer.

Guide to Adjustment of Status for U.S. Immigration

Have you been living in the U.S. on a temporary visa or without status and seeking to make your stay permanent? You will need to undergo the adjustment of status (AOS) process to get your permanent resident card. Here is an overview of the steps to adjustment of status.

1. Determine Your Eligibility for a Green Card

There are different categories of green card, and each one under its own eligibility criteria. One can think of them as falling into one of three types; there are family-based green cards, employment-based green cards, and green card in some special categories of humanitarian based green cards for refugees, asylees, victims of abuse and other special cases. The category you are applying for will determine your eligibility requirements. You can check your eligibility requirements here.

2. Filing of Immigrant Petition

Most green card categories require someone to file your immigrant petition with the United States Citizenship and Immigration Services (USCIS) on your behalf, while some allow you to file the petition yourself. This is dependent on the eligibility requirements for the category you are applying for. Whether you are being sponsored by someone else or you are self-sponsoring your petition, one of the following immigrant petition forms must be submitted to USCIS, depending on the category:

  1. Family-Based Petition: Form I-130
  2. Employment-Based Petition: Form I-140
  3. Refugee/Asylee Petition: Form I-730
  4. Application for Asylum and for Withholding Removal: Form I-589
  5. Immigrant Entrepreneur Petition: Form I-526
  6. Petition for U Nonimmigrant Status: Form I-918
  7. Petition for Amerasian, Widow(er), or Special Immigrant: Form I-360
  8. Petition for Qualifying Family Member of a U-1 Nonimmigrant: Form I-929

3. Check Immigrant Visa Availability

After submitting their immigrant petition, most green card categories require applicants to queue on the waiting line for the availability of an immigrant visa. For a few categories, however, there is always availability of visas. For instance, if your adjustment of status is sponsored by a lawful permanent resident family member, particularly someone other than a spouse, you will most likely have to queue on the waiting line due to the limited number of visas in that category. On the other hand, if you an immediate relative (child or spouse) of a U.S. citizen, you would not have to wait as with sponsorship through an immediate family relative adjustment of status may take place immediately.

4. File Form I-485

All adjustment of status applicants must file Form I-485 petition during their application process. Unlike the immigrant petition that mostly requires having someone file on your behalf, Form I-485, Adjustment of Status Petition must be submitted by you (the applicant/beneficiary). If you are applying as an immediate family relative of a U.S. citizen, you can submit your I-485 petition concurrently (at the same time) with the immigrant petition or at any time thereafter.However, if there is a limited number of visas in your own category, you must wait until an immigrant visa is available for you before you can submit your Form I-485.

5. Attend Adjustment of Status Appointments and Interview

After receiving the Form I-485 petition, USCIS will send the applicant a mail containing information on how to complete your biometrics. They will also be scheduled for an interview (if applicable). Ensure you attend the appointments and complete all the required procedures.

6. Receive a Decision and Get Your Green Card

USCIS has the prerogative to review an adjustment of status application and after that, decide whether to approve or deny it. You will receive the decision on your petition after completing all the above processes. If the adjustment of status application is approved, the applicant will receive their green card. This is also known as Permanent Resident Card, which will be received little later after the decision.

What happens to my Green Card if my Citizenship Application is denied?

Presently, the average naturalization (citizenship) process can take 12 to 15 months; some USCIS field offices take even longer, depending on volume and staffing levels.

In the last few years, there has been a significant spike in the number of people applying for naturalization. We often hear what will happen to their Green Card if their citizenship application is denied.

Why did my citizenship application get denied, and what does that mean for my green card?

Below are some of the common reasons behind why a citizenship application may get denied:

  • Error or mistruth in the citizenship application
  • Negligence towards tax payment
  • Below average performs in the citizenship interview
  • Failure in the Civic test
  • Poor command in the English Language
  • Expired green card
  • Negligence towards paying child support
  • Having a criminal record
  • The applicant does not fit the edibility criteria.

Not all of these cases will mean that you will lose your green card or your permanent residency, and many applicants get second chances. For example, failing the English proficiency test will not place your Green Card at risk. However, other more severe reasons related to citizenship denial can threaten your permanent resident status. For example, maybe you have an infectious disease that you did not mention while applying. In this case, one was involved in significant criminal activity or acquired permanent residency through fraudulent activity.

Therefore, we can’t stress enough how important it is for the applicant to be honest while filling out their application forms because USCIS will review your file to look for information inconsistent with your immigration file. If USCIS finds any such information about you, then your citizenship application may be denied, and your green card along with lawful permanent residency status can be at risk.

What can I do to minimize the risk of my naturalization application getting denied?

To avoid denial of the application, citizenship applicants need to carry out research. If you are worried about potential inconsistencies, get in front of the issue through consultation with an experienced attorney. After applying (Form N-400), start taking the necessary steps to prepare for the interview. An interviewer will be looking for your ability to comprehend and communicate in English. If you are older than 55 years and have resided in the United States for more than 15 years, you are not subject to the English proficiency requirement. If you think your English requires some improvement, take an English language learning class before the interview. Do not be nervous and stay calm during the interview. Be truthful and ensure your responses in the interview match the written responses in the N-400 form!

U.S. Immigration Options for Canadian Nationals

Options for Canadians to immigrate to or live and work in the United States vary depending on why one is seeking to become a U.S. resident. Some of the most common reasons Canadians move to the United States include education, employment, business opportunities, and the more favorable tax regime in many U.S. jurisdictions, including Puerto Rico.

Employment

Individuals interested in moving to the United States to look for new career opportunities should know that to be eligible, they must be sponsored by an employer or qualify for a National Interest Waiver. Below are a few categories and visa options for individuals interested in acquiring permanent residence in the United States based on their employment skills.

EB1 Category: This category is for (A) individuals with extraordinary skills and abilities in arts, science, education, athletics, or business; (B) tenure track professors and researchers; (C) multinational executives and managers.
EB2 Category: This category is for the advanced degree professionals and extra skilled employees in business, science, or arts. The self-petition option under a National Interest Waiver does not require a US employer sponsor or job offer.
EB3 Category: This field is for skilled workers, professionals, and ineligible workers for the EB1-EB2 categories (usually holding a bachelor’s degree).

TN NAFTA Professionals

The North American Free Trade Agreement (NAFTA) created unique economic and trade relationships for the United States, Canada, and Mexico. The TN nonimmigrant classification permits qualified Canadian citizens to seek temporary entry into the United States to engage in business activities at a professional level.
Among the types of professionals eligible to seek admission as TN nonimmigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers. You may be eligible for TN nonimmigrant status, if:
– You are a citizen of Canada;
– Your profession qualifies under regulations;
– The position in the United States requires a NAFTA professional;
– You have a prearranged full-time or part-time job with a U.S. employer; and
– You have the qualifications to practice in the profession in question.

Investment

E2 Treaty Investment Visa
E2 Visa grants a business investor to enter the United States for the sole purpose of setting up a business. However, this visa does not give you permanent residency, but one advantage of the E2 visa is that it can be continuously extended as long as the business is viable. The investor can either invest in a new or existing company.

EB-5 Visa
The EB-5 visa provides a method of obtaining a green card for foreign nationals who invest in a “new commercial enterprise” in the United States. The EB-5 program “affords foreign nationals and their spouses and unmarried children under age 21 the ability to obtain a U.S. visa based solely upon a minimum investment in a for-profit enterprise that creates or retains a specified number of jobs”. To obtain the visa, individuals must invest $1,000,000 or $1,800,000 after Nov 21, 2019 (or at least $500,000 or $900,000 after November 21, 2019, in a Targeted Employment Area – high unemployment or rural area), creating or preserving at least ten jobs for U.S. workers excluding the investor and their immediate family.

Education

The United States is known for having world-class educational institutions and if you are interested in immigrating to the U.S. for education, then below are two of the visa options one may pursue:

F-1 Student Visa
The F-1 Student visa is ideal for individuals planning to enroll and study in institutions such as elementary or academic high schools, universities, seminaries, accredited colleges, conservatories, or language training programs. Eligibility criteria for the F-1 student Visa are that the program you are enrolled in must culminate in receiving a degree, diploma, or certificate. The Institute must have authorization from the U.S. government to enroll international students.

M-1 Student Visa
The M-1 visa is issued for students planning to attend vocational schools or other non-academic programs. Also, M-1 Visa holders are not allowed to work throughout their education.
Note that if, after completing your graduation, you can remain in the United States to complete “Practical Training” (OPT) and can then remain permanently through an employment-based visa.

Marriage

Below are immigration options for individuals engaged/married to U.S. Citizens and are planning to settle down in the United States.

K-1 fiancé Visa
Individuals who plan to get married in the United States should apply for a K-1 fiancé visa. The K-1 visa will allow you to enter the U.S. for 90 days’ time period and get married. If you get married within 90 days, you will be eligible to apply for lawful permanent residence in the United States.

Immigrant Visa for a Spouse of a US Citizen (IR/CR1 VISA)
The IR1/CR1 Visa is a Family-based green card ideal for Canadians married to U.S. citizens. It permits a U.S. citizen’s spouse to live with their partner in the United States as a permanent resident.