Heightened Scrutiny For K-1 Fiancée's And Petitioners

The K-1 or Fiancée visa has been in the past a fairly user friendly visa for young people in love. There wasn't a great deal of scrutiny applied to the petitioner and applicant and as long as basic requirements of having met in person within 2 years of application, having a bona fide intent to marry and that they do marry each other within 90 days of entry to the United States.

On June 13, 2006, the USCIS has issued a Public Policy Notice announcing issuance of 10,000 Requests for Evidence (RFE's) for K-1 visas. This policy is implemented apparently ahead of the normal process for developing regulations to conform to the statutory provisions of the International Marriage Brokers Regulation Act of 2005. (IMBRA) This demand for information is in addition to the requirement already present at INA 214(d)(1) requiring a report by petitioner of any convictions for any crime.

Many abuses have been documented with international marriage brokers, the reason for IMBRA, however the new policy implemented by the service affects all K-1 fiancée visa applicants. The RFE's will be demanding information concerning the Petitioner's criminal history.

A Petitioner's misconduct or criminal history is rarely relevant to an immigrant petition. Usually the scrutiny is on the alien beneficiary, is that person of good moral character and can demonstrates that he or she will be a good candidate for residency in the United States. However there are a small number of individuals who seek “mail-order” brides through the K-1 process and unfortunately, some of these individuals have a history of abuse towards immigrant spouses.

The danger here is that USCIS may treat as unqualified anyone who has any history of domestic problems with a prior spouse or girl-friend/boyfriend. In responding to a Request for Evidence it will be important to emphasize all relevant circumstances and issues regarding any incident or issue for which USCIS requests a report. Such mitigating information may include the fact that both spouses were subject to a mutual restraining order, yet only one spouse may have unfairly be held in violation.

On the beneficiary side of the equation it is also important to advise the Fiancée to be very careful about admitting any conduct, which can be construed as a crime. This starts as early as the medical exam before the consular interview occurs. In Manila the doctors at St. Luke's hospital are regularly and aggressively attempting to get patients to admit to any use of drugs. Responses from patients are then placed in the medical exam report for review by consular officers.

In cases where a patient has related any conduct which even suggests use of illicit drugs that individual is then denied their fiancée visa and subjected to a life-time bar from the United States. The Department of State and Embassy in Manila has aggressively defended this practice in the Federal Courts. However following litigation filed by immigration attorneys including myself we now have reports that Consular officials are reviewing the conduct of doctors at medical exams.

I recommend that you consult with your immigration attorney if you think there are any issues which may complicate your fiancée visa application, or if you think your fiancée or spouse requires counseling and preparation prior to engaging in this process.

Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.

A similar version of this article may have been published in the Asian Journal.