Fiancee' visa Q & A

As I mentioned to you last week, today's column will answer some of the questions I received from our readers. Today's questions pertain to K1 visa or commonly known as fiancee' visa.

Q. My boyfriend and I have been sweethearts since college. He moved to the United States three years ago when his mother's petition for him was approved. We planned to get married in the US so that all his family members who are based there can attend. As he is a permanent resident or a greencard holder, can he file a fiance' visa petition for me?

A. Unfortunately, the answer is no. A fiance' visa is only available to US citizens. This type of visa is not available to permanent residents or greencard holders. This is one of very basic requirements to know before you file a fiancee visa petition. In this case, your boyfriend may want to obtain a US citizenship first, then file the fiance' visa petition for you.

Q. I was previously married but it has since been annulled. I have two children from the previous marriage who are 5 and 9 years old. If my American fiance' files a petition for me, can I take my children with me to the United States?

A. I will break down my answer here in two parts. First, as far as US immigration law is concerned, yes, you can take your children to the United States. Your minor children are eligible to apply for a K2 visa based on the approval of your K1 petition. Your American fiance' has to list the names of your children in his petition. When you have to apply for the fiancee' visa at the consular section at the US Embassy in Manila, each of your child has to submit his / her own application. Secondly, as far as taking your children to the United States, you may want to look at the court's judgment granting your annulment if you have shared or full custody of your children. This is one issue you may want to talk to your attorney who handled your annulment.

Q. I have a tourist visa before I met my American fiance'. Can I just use such visa to travel to the US and get married there?

A. No you cannot do that. You cannot use a visa different from what it is intended to be used for. Thus, you cannot use a tourist visa with the intention of getting married in the USA. While this could be a simpler and least costly alternative to come to the US, but you are just exposing yourself to future problems with US Citizenship and Immigration Service ( USCIS ). You do not want USCIS to suspect and charge you for immigration fraud and misrepresentation which are deportable offenses.

Q. I went to the US in 2005 using a tourist visa. I was only allowed to stay for 6 months but I overstayed. I came back to the Philippines in 2007. Now, my American fiance' is planning to file a fiance' visa petition for me. Would my previous overstay present a problem for me in entering back the US?

A. Yes. Your previous overstay in the US makes you ineligible for a visa. Your fiance' can still file a petition for you and get it approved. When your application is reviewed at the consular section in US Embassy Manila, naturally, you have to disclose the fact of your overstay. Depending on other factors, not just your overstay, you may be eligible for a waiver of eligibility. Filing a waiver is a very tedious process. You may need legal help for that.

Q. I am presently involved in a same sex relationship. My American boyfriend and I are planning to get married in the US since the Philippines do not recognize same sex marriages. Coming from a very conservative country where our relationship is not legally acknowledged, can I, a Filipino, be petitioned for and apply for a fiance' visa based on same sex relationship?

A. Yes. As long as other requirements for the fiance' visa are met, you are eligible to be petitioned for and apply for a fiance' visa. As you will be married in the US where same sex marriage is recognized, your being a Filipino and the fact that the Philippines does not recognize same sex engagement or marriage does not have any legal relevance as far as US immigration laws are concerned.

Q. If my grandfather has a pending petition for my father which was filed years ago and I was listed in that petition as one of my father's children, can I still qualify for a fiancee' visa?

A. Yes as these are two separate petitions. A previous or a pending immigrant petition filed by your grandfather does not disqualify you from obtaining a fiancee' visa. However, when asked by the consular officer or in the application form, you would need to disclose that fact.

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This column is not a substitute for professional legal advice obtained from a US licensed immigration attorney. The information contained herein does not constitute a warranty or guarantee or legal advice regarding a reader's specific immigration case. No attorney-client relationship is and shall be established with any reader.

For any questions, comments and observations, please contact Atty. Marco Tomakin at [email protected]