Ms. B is married to an American man. She had been permanently barred from the United States by a consular officer and advised that she needed a waiver. The standard for granting a waiver — to prove that the American citizen would be subjected to extreme hardship in the event of denial — is a difficult standard to meet. Instead of submitting a waiver application, we challenged the finding that she had committed a crime of moral turpitude as erroneous. After review of our submission by the Advisory Opinion Division of the Visa Office in Washington, the finding was overturned and she was able to join her husband in the US.
Love does not conquer all. As further proof: the Department of State refusal statistics for fiancées/fiancés. According to those statistics, approximately 20,000 K-1 fiancées/fiancés every year are denied visas when they go to their interviews at the embassy. This is nearly 40% of the total number of K-1 visa applicants. And while eventually many of them are able to overcome the initial denial, some do not.
Common Reasons for K-1 Denials
What is particularly sad is that many of these denials could have been avoided in the first place with competent preparation. 221(g) denials related to the US citizen petitioner’s finances are usually overcome eventually, but refusals based on questions about the legitimacy of the relationship are harder to overcome.
Relationship Suspicions — Over the past 25 years of handling fiancée visa cases, one thing we can say with certainty: once the consul suspects something is afoul, it becomes harder to overcome that doubt. The consul’s bottom line inquiry in K-1 visa cases is simple: is this a genuine relationship? Do they really plan to get married and live as husband and wife? As one can imagine, these visas are a ripe area for fraud. Not surprisingly, consuls are very vigilant in looking for sham relationships. Factors that play a role in denials include:
- a lack of relationship evidence submitted with the petition and at the interview to document the relationship
- interview failures, including an inability to answer questions about the petitioner, usually the result of inadequate preparation of the fiancée for the interview
- an inability to speak each other’s language proficiently
- no common background (e.g., ethnic, religion, cultural, educational)
- a short courting period before the filing of the K-1 petition (e.g., mail order brides, spur-of-the-moment proposals after a first visit)
- a male US citizen petitioner substantially older (> 10–15 years) than his fiancée
- a female US citizen at least 3–4 years older than her fiancé (yes, we have seen cases where this has been considered a suspicious factor)
- social media or publicly available information reflects discrepancies (e.g., showing recent photos of the fiancée with another man on vacation), calling into question the bona fides of the relationship
- the US citizen fails to visit his fiancée after submitting the K-1 petition, which a consul may interpret to show a lack of commitment by the US citizen
- a lack of communication between the parties after the submission of the petition
- US citizen has previously filed K-1 or marriage petitions
- a patronizing consul who wants to “protect” the K-1 visa applicant from a US citizen with a criminal past or a serial fiancée visa petitioner
- a questionable visa past or background of the fiancée (spent much time in the US, ex-spouse now living in the United States)
- a patronizing consul who wants to “protect” the US citizen from a perceived “gold digger” or green card scammer (yes, after a 5-minute interview, the consul may think he or she knows more about the sincerity of your fiancée’s intentions than you do after a 2-year relationship)
- initial meeting arranged by a third party
- US citizen is a friend of the fiancée’s family (the suspicion being that the citizen did a “favor” for or received money from the family to bring the fiancée over to the US on a K-1 visa).
Previous Visa Applications — Another recent phenomenon is the additional verifications that the consuls undertake for all visa applicants. One “arrow” in the consular “quiver”: reviewing previous visa applications to ensure that there were no misrepresentations. In the K-1 visa context, this comes up often if the fiancée had received a US visa before. For example, her US citizen boyfriend wanted her to visit, but she thought that her chances to receive the B visa would be greater if she did not disclose the true purpose of her visit. Instead, she indicated that she is going on a tour of New York. She received the B visa, traveled to the US to see her boyfriend, and returned home. The US citizen later proposed and submitted the K-1 petition. When she attends the K-1 interview, she is confronted with the misrepresentation and hit with a Section 212(a)(6)(C)(i) misrepresentation decision — a permanent bar, one that requires a waiver. Or a deep-digging consul who goes back several years to review in-depth a visa application made even before she met her US citizen fiancé and discovers a misrepresentation in the application. With no mercy, the consul enters a 212(a)(6)(C)(i) misrepresentation finding.
The consul then advises that a waiver is available. But not only does the waiver application process take up to a year but the burden to show extreme hardship on the US citizen in the event of a waiver denial is very steep. It is very possible that the fiancée will be denied, with a denial meaning that she will not be able to move to the United States. In short, no one wants to travel down the waiver “road”.
What Can Be Done to Prevent or Challenge K-1 Refusals? What Other Options are There?
As can been, sincere intentions do not mean that your fiancée will receive the visa. In fact, a lack of planning and diligence from the beginning of the process can very well mean that your fiancée will not receive the visa — or at the least, will experience a delay of weeks or months after the interview that could have been avoided.
Prevention of Denial
- Evidence Preparation. The formula for preventing a K-1 denial is not complicated: the more time the parties spend together and with their families; the more they communicate with each other; the more they know about each other; the more indicators there are of a real relationship (e.g., sending flowers for birthday); and the more evidence that is compiled and submitted, the greater the likelihood of success.
- Interview Preparation. The interview is critical and also the most nerve-wracking part of the process. To prepare for the interview, the fiancée should be familiar with the documents submitted and go through a mock interview in advance so that he or she feels comfortable and aware of what to expect at the interview. Needless to say, not being able to answer questions about the US citizen reflects poorly on the visa applicant.
- Commitment of the Parties to Each Other. The US citizen may have financial or time constraints, unable to afford or take time off from work to visit his fiancée after submitting the petition or to attend the visa interview. But the US citizen who is able to visit his fiancée or attend the visa interview shows a strong commitment. Sometimes it is this intangible support and commitment which means more than the tangible evidence. If the US citizen attends the interview, he is able to answer any questions of the consul. He is able to show support for his fiancée. She will feel more comfortable attending her interview.
- Analysis of Previous Visa Applications. If your fiancée received a US visa before, it is absolutely imperative to review or reconstruct the visa application as best as possible. What was the purpose of the visit indicated? What was the true purpose? How long did she stay? What was her personal, employment, family, and economic situation at the time of the application?
We can represent the US citizen throughout the process or provide consultations during the process. We can review the visa history and conduct a mock interview of the fiancée. What will be asked? What can be done to bolster the case? What to anticipate? How to make a good impression at the interview? How to answer difficult questions? How to dress? The advice of a third party can go a long way to relieve anxiety and address any shortcomings. As noted, you only get one chance to make a first impression.
Dealing with 221(g)
If the consul requests additional information about the relationship or seeks to investigate the relationship, the US citizen in particular must be proactive in addressing any particular concerns of the consul. Is the request a formality (e.g., a current employer letter), or does it question the very nature of the relationship? If the latter, the response will tip the scales one way or the other: will your fiancée receive the visa or not? Even if the consul does not request additional information but takes a 221(g) time out, the US citizen is not prohibited from submitting additional evidence to address potential suspicions or concerns of the consul. To wait and hope for the best is a strategy for failure.
Dealing with Finding of Inadmissibility
If the consul finds the fiancée inadmissible for another reason, such as a past misrepresentation, a lawyer should be immediately retained. A legal assessment should be made whether the consul’s decision was correct. It must be remembered that any past misrepresentation must have been “willful” and “material”. For example, if she would have received the visa had she honestly disclosed that she was planning to meet her US citizen boyfriend, then the misrepresentation cannot be considered material. Such consular decisions may be ripe for challenging with a request for reconsideration. If the decision is legally correct, then preparations to submit a waiver application — which can take 1–2 months — should be undertaken.
Dealing with the K-1 Petition Referred back to USCIS
If the consul refers the petition back to USCIS because of suspicions about the relationship, the petition will most likely “die” there because of its limited validity. But if the consul suspects the sincerity of the intentions of the fiancée overseas, he may have flagged her with a P6C finding. This means that if nothing is done to address the consul’s suspicions, the next time that she applies for a visa — in whatever context — she may be hit with a permanent bar for a material misrepresentation.
That is why it is critical for the US citizen to act as soon as learning of the petition being referred back. He could attempt to challenge this directly with the consul, submitting new evidence or an explanation; submit a new fiancée petition to USCIS; or marry his fiancée and submit an immigrant petition. In any event, such action should be done in consultation with counsel.
In short, one consul can turn your life and that of your fiancée upside down. To help avoid that, please contact us — no matter which stage of the process you are in.