9 FAM 502.7
(U) Other IV and Quasi-IV Classifications
(Office of Origin: CA/VO)
9 FAM 502.7-1 (U) Other IV and Quasi-IV Classifications – overview
(U) While most cases processed as IVs are based on family, employment, the diversity visa program, or special immigrant status, there are other bases for immigration. These include, among others:
(1) (U) Returning residents (see 9 FAM 502.7-2);
(2) (U) Some spouses or fiancé(e)s of U.S. citizens and their children (see 9 FAM 502.7-3);
(3) (U) Parents and children of some special immigrants (see 9 FAM 502.7-4); and
(4) (U) Beneficiaries of private immigration bills (see 9 FAM 502.7-5).
9 FAM 502.7-2 (U) Returning Residents
9 FAM 502.7-2(A) (U) Related Statutory and Regulatory Authorities
9 FAM 502.7-2(A)(1) (U) Immigration and Nationality Act
(U) INA 101(a)(27)(A) (8 U.S.C. 1101(a)(27)(A)); INA 222(b) (8 U.S.C. 1202(b)); INA 316(b) and (c) (8 U.S.C. 1427(b) and (c)); INA 317 (8 U.S.C. 1428).
9 FAM 502.7-2(A)(2) (U) Code of Federal Regulations
(U) 22 CFR 42.22.
9 FAM 502.7-2(B) (U) Returning Resident Status
a. (U) LPRs Who are Returning Residents: A Lawful Permanent Resident (LPR) who has remained outside the United States for more than one year may be eligible for returning resident status if you are satisfied that:
(1) (U) The alien departed the United States with the intention of returning to an unrelinquished residence; and
(2) (U) The alien’s stay abroad was for reasons beyond the alien’s control and for which the alien was not responsible.
b. (U) Evidence of Intent to Return to Unrelinquished Residence in the United States:
(1) (U) To qualify as a returning resident alien, an individual must present evidence that he or she:
(a) (U) Was a lawfully admitted permanent resident of the United States at the time of departure;
(b) (U) At the time of departure, had the intention of returning to the United States;
(c) (U) While residing abroad, did not abandon the intention to return to the United States; and
(d) (U) Is returning from a temporary residence abroad; or if the stay was protracted, this was caused by reasons beyond the alien’s control.
(2) (U) Defining "Lawfully Admitted": The INA defines "lawfully admitted for permanent residence" to mean "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed."
(3) (U) Documentary Evidence of Continued U.S. Residence: Documentary evidence of an alien's intent to maintain a U.S. residence may consist of, but is not limited to, the following:
(a) (U) A driver's license issued within the past year and reflecting the same address as that recorded on the Form I-94, Arrival and Departure Record;
(b) (U) The name and address of the U.S. employer and evidence that a salary has been paid within a reasonable period of time;
(c) (U) Evidence of children’s enrollment in a U.S. school;
(d) (U) Evidence that extended visit abroad was caused by unforeseen circumstances;
(e) (U) Evidence of a predetermined termination date; i.e., graduation, employment contract expiration, etc.;
(f) (U) Evidence of having filed U.S. income tax return(s) for the past year(s); or
(g) (U) Evidence of property ownership, whether real or personal, in the United States.
(4) (U) Evidence Indicating Abandonment of Residence: You should also take into account evidence that indicates abandonment of residence in the United States. Such evidence might consist of the following:
(a) (U) Extended or frequent absences from the United States;
(b) (U) Disposition of property or business affiliations in the United States;
(c) (U) Family, property, or business ties abroad;
(d) (U) Conduct while outside the United States such as, employment by a foreign employer, voting in foreign elections, running for political office in a foreign country, etc.; or
(e) (U) Failure to file U.S. income tax returns.
(5) (U) Defining Temporary: The term “temporary” cannot be defined in terms of elapsed time alone. The intent of the alien, when it can be determined, will control. In the Matter of Kane, the Board of Immigration Appeals has described some of the elements to be examined:
(a) (U) Reason for Absence: Traveler should have a definite reason for traveling abroad temporarily;
(b) (U) Termination Date: The visit abroad should be expected to terminate within a relatively short period, fixed by some early event; and
(c) (U) Place of Home or Employment: The applicant must expect to return to the United States as an actual home or place of employment. He or she must possess the requisite intent to do so at the time of his or her departure, and maintain it during the course of his or her sojourn.
(6) (U) Visitor Visa Issuance Not Relinquishment of Resident Status:
(a) (U) An alien is not ineligible for classification as a returning resident alien solely because the alien was previously issued a visitor visa during a stay abroad as a matter of convenience when time did not permit the alien to obtain a returning resident visa. (See 9 FAM 402.2-4(B)(10).)
(b) (U) For example, a permanent resident alien is temporarily assigned abroad but employed by a U.S. corporation. The alien has been outside the United States for more than one year and thus may not return to the United States using the Form I-551, Permanent Resident Card. The alien has never relinquished permanent residence in the United States; has continued to pay U.S. income taxes; and perhaps even maintains a home in the United States. The fact that the alien was issued a nonimmigrant visa for the purpose of making an urgent business trip would not reflect negatively on the retention of resident status.
(c) (U) Visa applicants are not required to relinquish the Form I-551, as a condition to immigrant or nonimmigrant visa issuance.
c. (U) Special Cases Qualifying for Returning Resident Status:
(1) (U) Former U.S. Citizen: If a naturalized citizen of the United States loses citizenship while in the United States, the status of a returning resident is appropriate if the alien:
(a) (U) Was a permanent resident of the United States prior to naturalization;
(b) (U) Has taken no action causing loss of permanent resident status;
(c) (U) Departed the United States after losing citizenship; and
(d) (U) Is returning to the United States after a temporary visit abroad.
(2) (U) Alien Employed Abroad by U.S. Employer: In certain cases, and in the absence of contrary evidence, an alien employed outside the United States by a U.S. employer might not be considered to have abandoned U.S. residence (see 9 FAM 502.7-2(B) paragraph c(6) below for more details on Continuity of Residence). Nevertheless, an alien who lives and works in a foreign country and merely returns to the United States for brief visits periodically may still be found to have abandoned LPR status. Annual visits to the United States are no guarantee that LPR status will be preserved.
(3) (U) Religious Missionaries Abroad: When dealing with extended absences from the United States, you must be aware that the DHS has determined that performance of missionary work abroad for a "recognized" U.S. religious denomination does not interrupt LPR status.
(4) (U) LPR Students Studying Abroad: Several decisions by the DHS Administrative Appeals Office (AAO) relate to LPR students studying abroad. Students who wish to retain LPR status should present evidence of a definitive graduation date. Even prolonged absences from the United States may be considered temporary if the LPR can present evidence of a receipt of a degree within a definitive time. You should take into account whether students return to the United States at the end of each academic term, or whether they have family still living in the United States. Evidence of property ownership, or a bank account in the United States, may indicate the student intends to return to the United States upon completion of studies.
(5) (U) Beneficiary of Private Law: Beneficiaries of private legislation granting permanent resident status are considered eligible for special immigrant status as returning resident aliens under the provisions of INA 101(a)(27)(A) even though they may have been abroad at the time the legislation was enacted. The spouse and children of such aliens may also benefit. See 9 FAM 502.7-5 for additional information on private law cases.
(6) (U) Continuity of Residency - Applying INA 316 and INA 317: INA 316(b), INA 316(c), and INA 317 provide that in certain cases, as described below, continuous absence from the United States does not break the continuity of residence for naturalization purposes. It would be inconsistent to permit time spent abroad in such circumstances to be applied for residence for naturalization purposes but to interpret that same time abroad as interruptive for the purpose of retaining LPR status. Thus, an alien’s qualification for the benefits of INA 316(b), INA 316(c) and INA 317 may be considered prima facie evidence that the alien is entitled to the status of a returning resident alien as contemplated in INA 101(a)(27)(A). The cases are:
(a) (U) An employee under contract with the U.S. Government or a U.S. institution of research recognized by the Secretary of Homeland Security (see 8 CFR 316.20);
(b) (U) An employee of a U.S. firm or corporation engaged in the development of foreign trade and commerce of the United States or a subsidiary thereof, more than 50 percent of whose stock is owned by an U.S. firm or corporation;
(c) (U) An employee of a public international organization of which the United States is a member by treaty or statue and by which the alien was not employed until after being lawfully admitted for permanent residence;
(d) (U) Any person authorized to perform the ministerial or priestly function of a religious denomination having a bona fide organization within the United States; or
(e) (U) Any person engaged solely by a religious denomination or interdenominational mission organization having a bona fide organization within the United States as a missionary, brother, nun, or sister.
d. (U) Child Under the Age of 16 Years:
(1) (U) An alien child under the age of 16 years is not considered to possess a will or intent separate from that of the parents with regard to a protracted stay abroad. Accordingly, the residence of a child under 16 follows that of the parent(s) unless you conclude that the parents have a separate intention for the child to return to the United States for residence.
(2) (U) In a particular illustrative case of protracted stay abroad by a child, an alien, born in Bermuda in 1941, was formally adopted at the age of six months. The adoptive mother and child were admitted for permanent residence in 1949 but approximately 10 months later the child was returned to Bermuda because the adoptive mother reportedly was unable to care for the child properly and work at the same time. The child remained in Bermuda for six years, most of the time in the custody of a guardian. The adoptive mother in the United States contributed regularly to the child's support but never visited the child. When nearly 14 years of age, the child applied for a special immigrant visa as a returning resident alien under INA 101(a)(27)(A). The Department determined that the child's protracted stay abroad was for reasons beyond the alien's control (see 22 CFR 42.22(a)(3)) and, therefore, had not affected the child's status as an alien lawfully admitted for permanent residence.
(3) (U) In the case of LPR children who you believe spend more than one year outside the United States as a result of an abduction by a non-custodial parent, please contact Overseas Citizen’s Services, Office of Children’s Issues (CA/OCS/CI) and the Immigration and Employment Division (CA/VO/F/IE) to determine the proper course of action. While a returning resident visa is the preferred way for the child to return to the United States and be admitted in the proper status, a non-custodial parent may not be willing to cooperate in order to complete the returning resident visa process. CA/OCS/CI, CA/VO/F/IE, and L/CA can advise you on options in coordination with DHS to allow the child to travel back to the United States.
(4) (U) See 9 FAM 202.2-2 paragraph b(2) for information on a child born in the U.S. to diplomatic parents. See also 9 FAM 201.2-3 paragraph (3) for information on the child of a Lawful Permanent Resident born during the mother’s temporary visit abroad.
e. (U) Derogatory Information Concerning SB-1 Applicant: An SB-1 is a type of special immigrant visa authorized under INA section 101(a)(27)(A). As it is a type of visa, the grounds of ineligibility at INA section 212(a) apply and provide a basis for refusal. If in the course of adjudicating an SB-1 application you find that the applicant is ineligible, you must refuse the SB-1 visa under the relevant section of law and advise the applicant whether a waiver may be available, similar to how you would advise any other IV applicant. If you uncover any adverse information in the course of adjudicating the SB-1 application, you must forward it to your local or regional CBP, USCIS, or ICE office as such information may be of relevance to the applicant’s admissibility outside of the SB-1 process. Note: A returning resident who has been outside the United States for less than 1 year should not apply for an SB-1 visa and should instead file a Form I-131A Application for Travel Document (Carrier Documentation) (9 FAM 202.2-5(C)).
9 FAM 502.7-2(C) (U)Processing Returning Resident Cases
a. (U) Application for Returning Resident (SB) Status:
(1) (U) LPR aliens who are unable to return to the United States within the travel validity of their Form I-551, Permanent Resident Card, or Reentry Permit, may apply at a U.S. Embassy or Consulate for a special immigrant Returning Resident (SB-1) visa.
(2) (U) An applicant seeking an SB-1 visa must complete Form DS-117, Application to Determine Returning Resident Status.
(3) (U) The applicant should file Form DS-117 and supporting documentation at the post in the consular district in which he or she currently resides. You may not deny an applicant processing at post solely because your post does not process immigrant visas. However, mission consular management may develop specific processing policies where circumstances would prevent effective evaluation and adjudication of the application at certain posts in country, in which case you may direct the applicant to another post in country that can handle the application. The fee for submitting a Form DS-117, Application for Determining Returning Resident Status, is separate from the Immigrant Visa Application Processing Fee that a SB-1 applicant must also pay. These two separate fees are both noted in the Schedule of Fees. (See 9 FAM 504.4-8.)
(4) (U) Documentation Required under INA 222(b): Under the provisions of 22 CFR 42.22(b), a returning resident alien is required to present records and documents required by INA 222(b) only for the period of temporary residence outside the United States. You should not require a police certificate or other documents for periods of less than six months.
b. (U) Consular Adjudication of Returning Resident (SB) Status:
(1) (U) You must conduct a personal interview with the applicant to determine whether the application for returning resident status is approvable. A consular manager must review your adjudication and indicate concurrence or non-concurrence on Form DS-117.
(2) (U) If you determine that the applicant has provided sufficient justification and evidence in accordance with 9 FAM 502.7-2(B), mark Form DS-117 as approved, open a case in IVO, and scan in the approved Form DS-117 and supporting documents.
(3) (U) If you adjudicated the application at a post where immigrant visas are not processed, you must send the approved Form DS-117 and the supporting documents to the IV-processing post for case creation and scanning.
(4) (U) If the application is denied, enter an "L" Lookout in INK containing scanned copies of Form DS-117 and all supporting documents, and also enter notes supporting the denial decision. Note: An applicant with a denied Form DS-117 application would NOT pay the Immigrant Visa Application Processing Fee.
(5) (U) Paper copies of the denied Form DS-117 and all supporting documents may be destroyed after adjudication and scanning.
(6) (U) Approved applicants will proceed with an application for an SB-1 IV. SB-1 interview appointment scheduling will vary based on post’s intake procedures. Each post should develop standard operating and intake procedures in order to handle SB-1 cases efficiently. SB-1 applicants are subject to the same application processing fees and security surcharges, documentary requirements, medical examination, and administrative processing that apply to all IV cases. An SB-1 applicant does not need to provide a new I-864.
9 FAM 502.7-3 (U) K Visas – Spouse or fiancÉ (E) of U.S. Citizen (and their children)
9 FAM 502.7-3(A) (U) Related Statutory and Regulatory Authorities
9 FAM 502.7-3(A)(1) (U) Immigration and Nationality Act
(U) INA 101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K)); INA 101(b)(1) (8 U.S.C. 1101(b)(1)); INA 203(a) (8 U.S.C. 1153(a)); INA 204(a)(1) (8 U.S.C. 1154(a)(1)).
9 FAM 502.7-3(A)(2) (U) Code of Federal Regulations
(U) 22 CFR 41.81; 8 CFR 214.2(k).
9 FAM 502.7-3(A)(3) (U) Public Laws
(U) Legal Immigration Family Equality Act (LIFE Act), Public Law 106-553; District of Columbia Appropriations Act, 1999, Public Law 106-113, sec. 237; International Marriage Broker Regulation Act of 2005 (IMBRA), Public Law 109-162, sec.831-834; Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), Public Law 109-248, sec. 402.
9 FAM 502.7-3(A)(4) (U) United States Code
(U) 18 U.S.C. 1801
9 FAM 502.7-3(B) (U) Overview of K Visa Classifications
a. (U) The fiancé(e) K-1 nonimmigrant visa is for the foreign citizen fiancé(e) of a U.S. citizen. The K-1 visa permits the foreign citizen fiancé(e) to travel to the United States and marry his or her U.S. citizen sponsor within 90 days of arrival. Eligible children of K-1 visa applicants receive K-2 visas.
b. (U) The K-3 nonimmigrant visa is for the foreign citizen spouse of a U.S. citizen. This visa category is intended to shorten the time the foreign citizen and U.S. citizen spouses must be separated by providing the option to obtain a nonimmigrant visa and enter the United States to await approval of the immigrant visa petition. Eligible children of K-3 visa applicants receive K-4 visas.
c. (U) Classification under INA 101(a)(15)(K):
(1) Classification under INA 101(a)(15)(K)(i) (Fiancé(e) of U.S. Citizen – K-1):
(a) (U) Fiancé(e): An alien may be classified as a K-1 if he or she is the beneficiary of an approved Form I-129F, Petition for Alien Fiancé́(e), for issuance of a nonimmigrant visa. If you are satisfied that the alien is qualified to receive such a visa, the alien may be admitted to the United States for the purpose of concluding a marriage to the petitioner within a 90-day period.
(b) (U) Alternative Classification: The inclusion of INA 101(a)(15)(K) in the nonimmigrant classifications is not intended to prohibit an alien fiancé́(e) of a U.S. citizen from applying for and obtaining an immigrant visa or a nonimmigrant visa under another classification, if the alien qualifies for an alternative classification. For example, an alien who seeks to enter the United States to marry a U.S. citizen may be classified B-2, if it is established that following the marriage the alien will depart from the United States. (See 9 FAM 402.2-4(B)(1).)
(2) (U) Classification under INA 101(a)(15)(K)(ii) (Spouse of U.S. Citizen – K-3): Public Law 106-553 established a new category of nonimmigrant visa for the spouses of U.S. citizens who await approval of a Form I-130, Petition for Alien Relative, to enter the United States as nonimmigrants. The symbol for the beneficiaries of this category is K-3.
(3) (U) Classification under INA 101(a)(15)(K)(iii) (Child of K-1 – K-2, and Child of K-3 – K-4):
(a) (U) This provision is for the children of either a K-1 or a K-3. An accompanying or following-to-join child (as defined in INA 101(b)(1)) of a K-1 is entitled to K-2 derivative status. The child of a K-3 who is accompanying or following-to-join a K-3 principal alien is entitled to K-4 derivative status.
(b) (U) Time Limit for Child of K-1 Fiancé(e): USCIS and the Department have agreed that the child of a K-1 principal alien may be accorded K-2 status if following to join the principal alien in the United States even after the principal alien has married the U.S. citizen fiancé́(e), and acquired Lawful Permanent Resident (LPR) status. However, the cutoff date for issuance of a K-2 visa is one year from the date of the issuance of the K-1 visa to the principal alien. For the purpose of calculating the one-year period, the date of printing shall be considered the date of issuance. After one year, the U.S. citizen petitioner or the alien, (prior K-1 visa holder), if qualified, must file an immediate relative or second preference petition for the K-1's child. With the exception of paragraph (d) below, no additional exceptions are possible.
(c) (U) Time Limit for Child of K-3: USCIS and the Department have agreed that the child of a K-3 principal alien may be accorded K-4 status if following to join the principal alien in the United States even after the principal alien has acquired LPR status. However, the cutoff date for issuance of a K-4 visa is one year from the date of the issuance of the K-3 visa to the principal alien. For the purpose of calculating the one-year period, the date of printing shall be considered the date of issuance. After one year the U.S. citizen petitioner or the alien, (prior K-3 visa holder), if qualified, must file an immediate relative or second preference petition for the K-3's child. No extensions are possible, regardless of circumstances.
(d) (U) Temporary Extension of Time Limit for Certain K-2 Applicants/Visa holders Child During COVID-19 Pandemic from 12 Months to 18 Months: DOS will extend following-to-join eligibility for K-2 applicants whose one-year eligibility to follow-to-join expired before they were able to obtain a visa or whose previously issued visa expired before they were able to effect travel to the United States as a direct result of:
(i) (U) the worldwide routine suspension of routine visa services;
(ii) (U) the suspension of entry to the United States based on physical presence in one of the countries designated by presidential proclamation;
(iii) (U) COVID-19 related travel restrictions imposed by the host government; or
(iv) (U) other factors caused by the COVID-19 outbreak which were beyond the applicant’s control and for which the applicant was not responsible.
(U) Note: Posts may extend the period of follow-to-join eligibility for K-2 applicants six additional months (180 days) for any K-2 applicant who, due to one of the four factors outlined above, has either been unable to apply for a visa within one year of their K-1 principal receiving their visa or has been unable to travel to the United States on a previously issued K-2 visa. This relief does not affect rules related to fees or fee collection, age-out restrictions, or other eligibility factors for K-2 status. Posts with questions about making these calculations should contact their CA/VO/F and L/CA post liaisons. This relief will expire six months after COVID-19 related travel restrictions have ended and post has resumed processing K visa appointments on a regular basis.
d. (U) K Visa Petitions:
(1) (U) Filing Form I-129F, Petition for Alien Fiancé(e) (K1):
(a) (U) Fiancé(e) Petition: Form I-129F, Petition for Alien Fiancé(e), may not be filed with, or approved or denied by, a consular officer or an immigration officer stationed abroad. All K visa petitions must be filed with USCIS in the United States. If the citizen fiancé́(e) is abroad at the time the K visa petition is filed, you should advise the petitioner to review USCIS' website for information on how to submit the completed petition, supporting documents, and appropriate fee to USCIS. After the petition is approved, USCIS will transmit it to NVC, which will alert the appropriate post.
(b) (U) Validity of a K-1 Petition: An approved K-1 visa petition is valid for a period of four months from the date of USCIS action. However, you may revalidate the petition any number of times for additional periods of four months from the date of revalidation, provided you conclude that the petitioner and the beneficiary remain legally free to marry and continue to intend to marry each other within 90 days after the beneficiary's admission into the United States. However, the longer the period of time since the filing of the petition, the greater the concern about the intentions of the couple, particularly the intentions of the petitioner in the United States. If you are not convinced that the U.S. citizen petitioner continues to intend to marry the beneficiary, including instances where no action has been taken on the application for a year (while refused under INA 221(g)), the petition should be returned to the approving office of USCIS with an explanatory memorandum. (See 9 FAM 502.7-3(B) paragraph d(5)) below for revalidation procedure.)
(2) (U) Petition for Classification under INA 101(a)(15)(K)(ii) (K3):
(a) (U) An alien seeking admission under INA 101(a)(15)(K)(ii) must be the beneficiary of a K-3 petition filed by a U.S. citizen in the United States. USCIS is using the usual Form I-129F, Petition for Alien Fiancé́(e), for this purpose. As noted in 9 FAM 502.7-5(C)(1) paragraph c, if the couple married outside the United States, the visa must be issued by a consular officer in the foreign state in which the marriage was effected.
(b) (U) In order to file an I-129F petition for a K-3 visa, the petitioner must first file an I-130 Petition for an Alien Relative with USCIS. USCIS will send the petitioner an I-797 receipt confirming that the I-130 petition has been received. Only then can the petitioner proceed to file the I-129F petition for the K-3. When an I-130 and an I-129F for the same petitioner and beneficiary are filed with the same USCIS service center, USCIS will only proceed with the adjudication of the I-130 petition.
(3) (U) No Petition for Child of K-1 or K-3: The unmarried child of a K-1 or K-3 applicant does not require a petition. The applicant needs only to demonstrate that he or she is the “child” (as defined in INA 101(b)(1)) of an alien classified K-1 or K-3. K-2 or K-4 applicants are required to sign a form apprising them that entering into a marriage prior to obtaining adjustment of status will render them ineligible for adjustment in the IR-2 or CR-2 category.
(4) (U) Termination of K Visa Petition Approval: USCIS regulations (8 CFR 214.2(k)) provide that the death of a petitioner or written withdrawal of the petition prior to the arrival of the beneficiary in the United States automatically terminates the approval of the petition. You should return the petition to the approving USCIS office with an appropriate memorandum via the NVC. If the petition has not been automatically terminated but the applicant chooses not to pursue the visa while the petition is still valid (or if no response is received within 60 days if the petition has expired and the applicant does not respond to post's letter per 9 FAM 502.7-3(C)(2) paragraph b below), the petition should be treated as inactive and destroyed after one year.
(5) (U) Revalidation of Fiancé(e) Petition: When a K visa petition is revalidated as described in 9 FAM 502.7-3(B) paragraph d(1)(b) above, the notation “Revalidated to (date)” should be placed in the “Remarks” block of the petition over your signature and title. The date when the revalidation was processed should also be shown.
9 FAM 502.7-3(C) (U) K Visa Processing
9 FAM 502.7-3(C)(1) (U) Acceptance of K Visa Applications
a. (U) K-1 and K-2 visas must be processed and issued only at immigrant visa issuing posts. If a nonimmigrant visa issuing post receives a K-1 visa petition, it should forward the petition to the IV issuing post which covers the consular district, unless the post has been specifically authorized to process K visas.
b. (U) Subject to paragraph c below, applicants for K-3 or K-4 visas should also be processed at IV posts, as K-1s are, but in some cases they may have to be processed at a consular post that normally issues only NIVs because there is no IV post in the country.
c. (U) The statute requires that a K-3 visa for an applicant who married a U.S. citizen outside the United States be issued by a consular officer in the foreign state in which the marriage was conducted. If that country has no IV issuing post and only a nonimmigrant visa issuing post, then the application may be accepted and processed by the nonimmigrant visa issuing post. If no visa issuing post is located in that country, the K-3 applicant should apply at the consular post designated to handle “homeless” IV cases for that country. A K-4 visa applicant, also, may be issued a visa at any IV issuing post, or, in the circumstances noted above, at a nonimmigrant post if there is no IV issuing post in the country.
d. (U) The Consular District where the K visa applicant currently, or last resided, or has citizenship has jurisdiction for that case. A K visa applicant may request to transfer her/his case from the Consular District with primary jurisdiction to a different Consular District. The receiving Embassy or Consulate has the discretion to approve or deny the acceptance of a K visa application from an applicant outside the Consular District and, when making that decision, should consider factors such as workload, local health and safety conditions, and familiarity with the culture, language, and legal and political framework of the Consular District with jurisdiction. Posts accepting out of district K applications may need to consult with the post of primary jurisdiction for background information or document verification, which could cause processing delays. The applicant should be informed of the possibility of delays at the time the case is accepted. If the K visa applicant paid the MRV fee at the post with primary jurisdiction and requests the case be transferred to a new post, the applicant must pay the fee again at the new post as MRV fees are not transferable from post to post. The receiving post must inform the post with primary jurisdiction and their CA/VO/F analyst that post is accepting the case.
9 FAM 502.7-3(C)(2) (U) K Visa Pre-Interview Processing
a. (U) Timely Visa Processing:
(1) (U) The interview with the consular officer is the most significant part of the visa issuing process. It is particularly important from the point of view of full and correct application of the law. Section 237 of Public Law 106-113 requires that the Department establish a policy under which fiancé́(e) visas be processed within 30 days of receipt of the necessary information from the applicant and the Department of Homeland Security. The Department expects all posts to strive to meet the 30-day requirement.
(2) (U) Since the underlying purpose of the Legal Immigration Family Equity (LIFE) Act is to reunite families, it is important that posts process these cases as quickly as possible. Posts should first process immigrant visas cases that are current for processing and for which visa numbers are available. The second priority should be K-3 applicants and their children.
b. (U) Action When K-1 Petition Received: Upon the receipt of an approved I-129F petition for a K-1 applicant, the post should send a letter to the beneficiary outlining the steps to be taken to apply for a visa. If the initial four-month validity of a petition has expired without a response to the post’s letter, you should send a follow-up letter to the beneficiary, with a copy to the petitioner, and request a reply within 60 days. If the 60-day period passes without a response from either party, or, if the response indicates that the couple no longer plans marriage, the case is to be considered abandoned; the petition is to be retained at the post for a period of one year and then destroyed.
c. (U) Action When K-3 Petition Received: Upon receipt of an approved I-129F petition for a K-3 applicant, consular staff should check the Person Centric Query Service (PCQS) to determine if the associated I-130 petition has already been approved. If the I-130 has been approved, the I-129F for the K-3 visa application should be refused under INA 221(g) and the I-129F should be kept in the file with the corresponding I-130 petition when it is received by post. The petitioner and beneficiary should be advised that post will notify them when the approved I-130 petition is received at post. If the I-130 petition has not yet been approved, then the I-129F is still valid and post may continue processing the K-3 visa application. If the I-130 has been denied, then the I-129F for the K-3 is no longer valid (validity is contingent upon having a pending or approved I-130), and post should return the I-129F to USCIS for termination.
d. (U) Applicant Informed of Requirement for Visa: Upon the receipt of a K visa petition approved by U.S. Citizenship and Immigration Services, post should promptly send to the applicant:
(1) (U) Instructions for accessing Form DS-160, Online Nonimmigrant Visa Application;
(2) (U) One copy of the petitioner's approved Form I-129F, together with any information that USCIS has provided regarding prior Form I-129F filings by the petitioner (see 9 FAM 502.7-3(D)(1) below for more specifics) and any criminal background information (including information on protection orders) that USCIS has gathered on the petitioner. Post should send the criminal background information print out from USCIS directly to the applicant, with the petitioner's social security number redacted;
(3) (U) One copy of USCIS's pamphlet (in paper or electronic form), "Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States and Facts about Immigrating on a Marriage-Based Visa."
9 FAM 502.7-3(C)(3) (U) K Visa Documentary and Clearance Requirements
a. (U) Standard Requirements: The following records and documents are required for presentation at the time of K visa application:
(1) (U) Form DS-160, Online Nonimmigrant Visa Application;
(2) (U) Valid passport (except for a person coming under 22 CFR 41.2 paragraphs (a), (b), (h));
(3) (U) Birth certificate;
(4) (U) Police certificates (see 9 FAM 504.4-4(B)): If the applicant is 16 years of age or older, they must obtain an original or certified copy of a police certificate, if obtainable, for:
(a) (U) Their country of nationality, if they lived in the country of nationality for more than six months at any time in their life;
(b) (U) Their current country of residence, if different from nationality, if they have lived in that country for more than six months; or
(c) (U) Their previous country or countries of residence if they were 16 years or older at the time they lived there and lived in that country for 12 months or more; and
(d) (U) Any city and/or country where they were arrested for any reason, regardless of how long they lived in that city or country and regardless of age at the time of arrest.
(U) Note: See U.S. Visa Reciprocity and Civil Documents by Country for availability of police certificates for individual countries.
(U) Note: Present and former residents of the United States do not need to submit any U.S. police certificates.
(5) (U) Proof of relationship to the petitioner at the time of the interview;
(6) (U) Evidence of termination of any prior marriage of beneficiary (if the petition does not indicate that such evidence was previously submitted); and
(7) (U) Form DS-2054 or DS-7794, Report of Medical Examination by Panel Physician and associated worksheets. Please see 302.2 for additional information on the medical examination requirements for K visa applicants.
b. (U) Accompanying Child: If the applicant is to be accompanied by a minor child or children, Form DS-160, Online Nonimmigrant Visa Application, is required for each child. The accompanying child also requires a valid passport (or may be included in the parent’s passport), a birth certificate, and a medical examination. No chest X-ray or serologic tests are required if the child is under 15 years of age. If a child is 16 years of age or over, police certificates are required.
c. (U) Public Charge, Evidence of Support:
(1) (U) A K visa applicant and any accompanying children must meet the public charge requirement of INA 212(a)(4) like any other visa applicant. Evidence of support is usually requested by the consular officer. There is, however, no absolute requirement that an affidavit of support or other public charge documentation be presented. It is only necessary that you are able to conclude that the alien is not likely to become a public charge. It would not be unusual, therefore, for a healthy alien of working age, applying alone, to be able to establish eligibility during the visa interview without the need for substantiating documentation.
(2) (U) Form I-864, Affidavit of Support Under Section 213A of the Act, cannot be required. Applicants may submit a letter from the petitioner’s employer or evidence that they will be self-supporting. Form I-134, Affidavit of Support, may be requested when you deem it useful.
d. (U) Medical Exam: As noted above, the applicant must undergo the standard immigrant visa medical examination by a panel physician, and submit appropriate documentation as required including Form DS-2054 or DS-7794, Report of Medical Examination by Panel Physician, and associated worksheets. See 9 FAM 302.2-3(A) paragraph c for more information on medical exams and vaccination requirements for K visa applicants.
e. (U) Clearances:
(1) (U) National Crime Information Center name check must be done by the National Visa Center for each applicant.
(2) (U) Upon receipt of the completed Form DS-160, you should initiate clearance procedures. If the applicant, since attaining the age of 16, has resided for one year or more in a country other than the one of visa application, the security clearance procedures used in immigrant visa cases are to be followed.
f. (U) Fees: There is no additional processing fee for K visas. Applicants will pay only the standard Machine Readable Visa (MRV) fee. There are no separate reciprocity fees.
9 FAM 502.7-3(C)(4) (U) K Visa Interview
a. (U) The Alien is to be Invited for an Interview When:
(1) (U) The alien has reported that all of the necessary documents have been collected; and
(2) (U) The medical examination has been completed and the report is or will be available before the interview.
b. (U) You must direct the interview to determine eligibility as if the alien were applying for an immigrant visa in the immediate relative category. You must also:
(1) (U) Inform the K-1 or K-3 visa applicant of any protection orders or criminal background information regarding the petitioner that U.S. Citizenship and Immigration Services has reported with an approved K petition. After informing the applicant, give the applicant time to decide whether he or she wishes to proceed with the K visa application, and, in the case of an applicant for a K-1 visa, whether he or she still intends to marry the petitioner within 90 days of entering the United States. Enter appropriate case notes into the IVO system to indicate that the applicant received notice of the petitioner's criminal background information (see 9 FAM 502.7-3(D)(1) for more specifics);
(2) (U) Inform the K-1 or K-3 visa applicant of any previously approved Form I-129F petitions filed by the petitioner. You will find this information on the approved Form I-129F as USCIS annotates approved Form I-129F petitions to indicate multiple filings. (Note: Under IMBRA, if a U.S. citizen already has had two fiancé(e) or spousal petitions approved less than ten years prior to the filing of a subsequent petition, the K-1 or K-3 applicant who is the beneficiary of the subsequent petition is to be notified. Absent an IMBRA waiver, USCIS may not approve a petition filed by an individual who (1) has filed two or more previous fiancé(e) or spousal petitions; or (2) has had such a petition that was filed within the previous two years approved. USCIS indicates these waivers by noting "IMBRA waiver approved" in the approved petition's Remarks block. Aside from informing the beneficiary of the previous petitions, no additional steps are required of you.) Make appropriate case notes in IVO;
(3) (U) Ask the applicant whether an international marriage broker (IMB) facilitated the relationship with the petitioner and if so, identify the IMB, and then ask if the IMB complied with the International Marriage Broker Regulation Act of 2005 (IMBRA) by providing the applicant with the required disclosures and information. (See 9 FAM 502.7-3(D)(1)) If the IMB did not provide the required disclosures and information, make case notes in IVO on the failure of the IMB to comply with IMBRA and provide that information to CA/VO/F/IE by email. Proceed with case processing; do not wait for clearance to proceed;
(4) (U) Provide to each K-1 or K-3 visa applicant another copy of the USCIS pamphlet, "Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States and Facts about Immigrating on a Marriage-Based Visa," which they already should have received when the instruction packet was first mailed to them (see 9 FAM 502.7-3(C)(2) paragraph d(3) above), in English or another appropriate language;
(5) (U) Orally review with the applicant, in his or her primary language, if feasible, or otherwise in either the language spoken in the country of application or English, the synopsis of the points contained in the pamphlet (found at 9 FAM 502.7-3(E) below);
(6) (U) Add case notes in IVO that the pamphlet was received, read, and understood by the applicant; and
(7) (U) In K-1 cases, obtain the applicant’s oath and biometric signature within IVO. This certifies the applicant’s legal capacity and intent to marry.
(8) (U) As a K-1 is a nonimmigrant visa, the oath made in conjunction with a K-1 visa application does not expire. For pending K-1 applications there is no requirement for a new oath or signature, new DS-160 application, or second interview if one year or more has passed since the initial interview and biometric oath. You may override the oath in IVO for pending K-1 applications with the note "Oath and biometric signature taken on DD-MMM-YYYY. K applicant, no new oath or signature required, no changes to the DS-160."
9 FAM 502.7-3(C)(5) (U) K-1 and K-2 Visa Adjudication
a. (U) Adjudication Factors:
(1) (U) Petitioner and Beneficiary Must Have Met: USCIS regulations (8 CFR 214.2(k)(2)) require that the petitioner and the K-1 beneficiary have met in person within two years immediately preceding the filing of the petition. At the USCIS director's discretion, this requirement can be waived if it is established that compliance would result in extreme hardship to the petitioner or that compliance would violate strict and long-established customs of the beneficiary's foreign culture.
(2) (U) Petitioner and Beneficiary Must Be Legally Free to Marry:
(a) (U) For a K-1 petition to remain valid, the petitioner and the beneficiary must:
(i) (U) Have been legally free to marry at the time the petition was filed;
(ii) (U) Have remained so thereafter; and
(iii) (U) Continue to have the intent to marry within 90 days after the beneficiary’s admission into the United States.
(b) (U) A K-1 petition filed when the petitioner and/or the applicant was still legally married shall not serve as the basis for visa issuance, even though that marriage was terminated and applicant/petitioner became free to marry within 90 days of arrival in the United States. If you find that the petitioner and/or applicant is/was not legally free to marry, you must return the K-1 petition to NVC under cover of memorandum detailing the specific, objective facts giving rise to the officer’s determination.
(3) (U) Multiple Petitions Approved for Same K-1 Beneficiary: In instances where more than one U.S. citizen fiancé́(e) has filed visa petitions on behalf of the same alien and more than one K-1 visa petition has been approved for the same beneficiary, you must suspend action and return all petitions with a covering memorandum to the USCIS office who approved the last petition, via NVC, so that the petition approvals may be reviewed.
(4) (U) Marriage for Purpose of Evading Immigration Laws (INA 204(c)): See 9 FAM 504.2-5(C)(2), paragraph d below.
(5) (U) Additional Factors That May Raise Questions in K-1 Cases:
(a) (U) There are several possible discrepancies between the facts stated on the petition and the actual circumstances of the K-1 beneficiary which might lead you to question whether the relationship is bona fide or which might cause the petitioner to choose not to go forward with the marriage. These include having one or more children not named in the petition, a prior undisclosed marriage (even if it has been annulled or ended by divorce or death), or, in the case of a fiancée, a current pregnancy.
(b) (U) Discovery of a ground of ineligibility of the K-1 applicant raises another issue of the petitioner's awareness of all of the factors associated with the fiancé́(e).
(c) (U) You should use your discretion in determining whether to return the K-1 petition to USCIS in such cases. You should, however, first solicit from the petitioner information as to whether he or she was aware of the particular circumstance(s) and whether, in light thereof, he or she still wishes to proceed with the proposed marriage. If satisfied in this regard, you need not return the petition. If you have further questions about whether a petition should be returned to USCIS, contact VO/F and FPP.
b. (U) K-1 Relationship Not Satisfactorily Bona Fide:
(1) (U) You should refuse the visa application under INA 221(g) and return the K-1 petition to DHS through NVC with a memorandum recommending revocation if you are not satisfied with respect to the bona fides of the relationship or if the petitioner indicates that he or she no longer intends to go forward with the marriage. If you suspect the applicant is being forced to marry against his or her will you may consult with VO/F before returning the petition to USCIS due to the sensitive nature of the return.
(2) (U) If you find that the fiancé(e) or marital relationship is not bona fide but is a sham entered into solely for immigration benefits, you should refuse the visa application under INA 221(g) and return the K-1 or K-3 petition to DHS through NVC with a recommendation for revocation under cover of a memorandum detailing the specific, objective facts giving rise to post’s conclusion. Note that because the I-129F petition is only valid for four months USCIS rarely considers the revocation request and will place the petition into termination status. All immigrant and K-1/K-3 petition revocation cases are to be routed through NVC to the approving USCIS service center of field office.
9 FAM 502.7-3(C)(6) (U) K Visa Ineligibilities, Waivers
a. (U) Former Exchange Visitor: Before a K visa may be issued to an applicant who is a former exchange visitor and subject to the provisions of INA 212(e), the applicant must establish that the requirements of INA 212(e) have been fulfilled or that a waiver has been obtained. (See 22 CFR 40.202(b) and 9 FAM 302.13-2.)
b. (U) Vaccination Requirements for K Visa Applicants: See 9 FAM 302.2-6(B)(3).
c. (U) Waiver Availability for Applicants Ineligible under INA 212(a): A K visa is a nonimmigrant visa, and, therefore, K nonimmigrants are generally eligible for INA 212(d)(3)(A) waivers. However, processing an INA 212(d)(3)(A) waiver would not be appropriate unless an immigrant waiver is also available when the K visa holder applies to adjust status to lawful permanent resident. To determine whether a waiver is available for a K applicant, you must, therefore, first examine whether the particular INA 212(a) ineligibility is waivable for immigrant spouses of U.S. citizens, under either INA 212(g), INA 212(h), INA 212(i), INA 212(a)(9)(B)(v), INA 212(d)(11) or INA 212(d)(12) or similar provisions. (For a more complete list, see 9 FAM 302 and 9 FAM 305.)
d. (U) No Waiver Possible: If the K visa applicant is ineligible for a visa on an INA 212(a) ground for which no immigrant waiver is or would be possible after marriage to the petitioner, then the case should not be recommended for an INA 212(d)(3)(A) waiver and no waiver request should be submitted to USCIS. (See 22 CFR 40.301.)
e. (U) INA 212(d)(3)(A) Waiver for K-1 Fiancé(e) Who Would Qualify for Waiver If Married, or for K-3 Spouse:
(1) (U) If it is determined that the K visa applicant is ineligible to receive a visa under INA 212(a), but that the ineligibility could be waived after (or as a result of the) marriage to the petitioner, refuse the applicant under the applicable ineligibility and instruct the applicant to file Form I-601, Application for Waiver of Ground of Inadmissibility, with USCIS per USCIS instructions.
(2) (U) If the case involves a K-1 fiancé(e), you should be satisfied (before beginning that waiver process) that the petitioner is aware of the ineligibility and still wishes to pursue the marriage. If not, the petition should be returned to USCIS and the waiver process should be terminated.
(3) (U) You should follow this same general procedure whether the ineligibility is on medical or nonmedical bases, while taking into account any variant procedure required in certain medical cases as set forth in 9 FAM 302.2.
9 FAM 502.7-3(C)(7) (U) K Visa Issuance, Travel
a. (U) K Visa Validity: The validity of K-1 and K-2 visas should match the medical exam. K- 3 and K-4 visas should be valid for multiple entries for 24 months, unless constrained by security clearance requirement or waivers, which are valid for a year or less. Unmarried aliens entering the United States as a K-4 should be admitted for a period of 24 months or until that alien’s 21st birthday, whichever is shorter (see 8 CFR 214.2(k)(8) and 8 CFR 214.2(k)(11)(v)).
b. (U) K Visa Annotations: The K visa should be annotated in the following cases:
(1) (U) K-1 and K-3 visas should be annotated with the name of the petitioner and the petition number.
PETR.: DOE, JOHN
PET. NO.: EAC0123456789
(2) (U) Medical Cases:
(a) (U) When the medical examination has revealed a Class A tuberculosis or another Class A medical condition, and an INA 212(d)(3)(A) waiver has been granted, the visa should be annotated: “MED: 212(d)(3)(A).”
(b) (U) When the medical examination has revealed a Class B tuberculosis condition or Class B leprosy, non-infectious, the visa should be annotated: “MED: Class B.”
(3) (U) Child of a K-1 or K-3: The children’s MRVs should be annotated with the principal alien’s name and date of visa issuance. For example, “P/A: Mary Brown, K-1/K-3 issued 15-AUG-2007.”
c. (U) K Visa Travel Packet:
(1) (U) Supporting Documents Placed in Envelope and Hand-Carried by Applicant: The following supporting documents should be carried by the applicant in a sealed envelope for presentation at the port of entry:
(a) (U) The K visa petition;
(b) (U) Form DS-2054, Report of Medical Examination by Panel Physician, and all related worksheets; and
(c) (U) Supporting documents, which include copies of all civil documents that are pertinent to the relationship between the petitioner and the beneficiary. You should be careful NOT to include any criminal information on the petitioner that may have been included in the case file, or any documents that are law enforcement sensitive.
(2) (U) K2 and K4 Children: In the case of children following-to-join the principal alien who are entitled to K2 or K4 classification, the required documents are to be placed in an envelope together with a copy of the approved K visa petition.
d. (U) Social Security Registration: Posts do not provide a fiancé(e) the information regarding Social Security registration. DHS will do this at the time of the alien’s adjustment of status.
e. (U) Issuance of subsequent K-1 Visa: If a K-1 visa, valid for a single entry and a six-month period or less, has already been used for admission into the United States and the alien fiancé(e) returns abroad prior to the marriage, you may issue a new K visa, provided that the period of validity does not exceed the 90th day after the date of initial admission of the alien on the original K visa to the United States, and provided that the petitioner and beneficiary still intend and are free to marry. The alien’s return to the United States and marriage to the petitioner must take place within 90 days from the date of the original admission into the United States in K status. To issue this subsequent visa the applicant must pay a new MRV fee and provide a new DS-160. Using the information in the original petition and the new DS-160 create a new case in NIV, and adjust the validity date to fall within the original 90-day time period. Post should not produce a new additional packet for the K-1 visa holder to present to CBP at the Port of Entry.
9 FAM 502.7-3(D) (U) K Visa Petitioner Provisions
9 FAM 502.7-3(D)(1) (U) International Marriage Broker Regulation Act (IMBRA) – Disclosure of Petitioner Criminal Conviction History, Protection Orders, or Restraining Orders
a. (U) The International Marriage Broker Regulation Act of 2005 (IMBRA) requires, with respect to each I-129F petitions for K status, that USCIS provide to the Department, and the Department in turn to disclose to the K-1 or K-3 applicant, all criminal background information submitted to USCIS by the petitioner and any related criminal conviction information that USCIS discovered in Government records or databases during its routine background check regarding any of the following crimes:
(1) (U) Crimes involving domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, stalking, and any attempt to commit such crimes;
(2) (U) Crimes involving homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of these crimes;
(3) (U) Crimes relating to a controlled substance or alcohol where the petitioner has been convicted on at least three occasions and where such crimes did not arise from a single act; and
(4) (U) Information on any permanent protection or restraining order issued against the petitioner related to any specified crime.
b. (U) The disclosure of any criminal background information regarding the petitioner that USCIS has reported with an approved K petition, including any information on protection orders or criminal convictions, is mandatory. IMBRA requires that the Department must share, with the K-1 or K-3 nonimmigrant visa applicant who is the beneficiary of the petition, any such criminal background information that USCIS has reported after its check of government records or databases, while informing the applicant that such criminal background information is based on available records and may not be complete. This must take place on two occasions: first, when post sends the applicant the instructions regarding the visa application process; and second, at the time of the visa interview, when you must disclose the information to the K-1 or K-3 visa applicant, in the applicant's primary language. In making this disclosure, you are not authorized to provide the name or contact information of any person who was granted a protection order or restraining order against the petitioner or was a victim of a crime of violence perpetrated by the petitioner, but are to disclose to the applicant the person's relationship to the petitioner. Because each petitioner for K visa status must have signed a statement in the I-129F expressing their understanding that any criminal background information pertaining to them will be disclosed to petition beneficiaries, you are not required to send a petitioner notification that such disclosure has occurred.
c. (U) During the visa interview, after informing the applicant of any protection orders or criminal background information received from USCIS regarding the petitioner, give the applicant time to decide whether he or she wishes to proceed with the K visa application, and, in the case of an applicant for a K-1 visa, whether he or she still intends to marry the petitioner within 90 days of entering the United States. Enter case notes into the IVO system to indicate that the applicant received notice of the petitioner's criminal history. If you have questions, contact L/CA or CA/VO/F/IE for additional guidance.
9 FAM 502.7-3(D)(2) (U) Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”) – Returning I-129F Petitions Based on Adam Walsh Act Requirements
a. (U) Section 402 of the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), which became law on July 27, 2006, amended INA 204(a)(1) and INA 101(a)(15)(K), rendering ineligible to file a petition for immigrant status under INA 203(a) or nonimmigrant K status, any petitioner who has been convicted of a "specified offense against a minor," defined in section 111 of the Adam Walsh Act as an offense involving any of the following:
(1) (U) An offense (unless committed by a parent or guardian) involving kidnapping;
(2) (U) An offense (unless committed by a parent or guardian) involving false imprisonment;
(3) (U) Solicitation to engage in sexual conduct;
(4) (U) Use in a sexual performance;
(5) (U) Solicitation to practice prostitution;
(6) (U) Video voyeurism as described in 18 U.S.C. 1801;
(7) (U) Possession, production, or distribution of child pornography;
(8) (U) Criminal sexual conduct involving a minor or the use of the Internet to facilitate or attempt such conduct;
(9) (U) Any conduct that by its nature is a sex offense against a minor.
b. (U) Section 402 further provides that the bar against filing a petition because of such a conviction will not apply if the Secretary of Homeland Security, in his or her sole and unreviewable discretion, determines that the petitioner poses no risk to the beneficiary.
c. (U) Because of the Adam Walsh Act, you must return to the USCIS domestic service center that approved it, via NVC, any approved I-129F petition filed by a U.S. citizen identified as having been convicted of one of the offenses against a minor listed in 9 FAM 502.7-3(D)(2) paragraph a above, for reconsideration, unless USCIS has reported that the Secretary of Homeland Security has made the necessary "no risk" determination. Do not disclose conviction information to the visa applicant in cases in which the petition is being returned.
d. (U) The Adam Walsh Act's bar against the filing of a petition for family-based immigrant or K nonimmigrant visa status by an individual who has been convicted of a specified offense against a minor does not apply if the Secretary of Homeland Security exercises his sole and unreviewable discretionary authority and determines that the individual poses no risk to a beneficiary. You may encounter cases in which the criminal history information reported to post by USCIS relates to a conviction for a crime that is one of the specified offenses against a minor listed in 9 FAM 502.7-3(D)(2) paragraph a above. Provided that the petition reflects that there has been a no-risk determination by the Secretary of Homeland Security and you intend to approve the visa application, you should not forward the petition to USCIS based on the conviction in that instance, but instead consider it to have been properly filed under the Adam Walsh Act, while nonetheless informing the K visa applicant, during the interview, of any conviction listed in 9 FAM 502.7-5(D)(2) paragraph a above that has been reported by USCIS pursuant to IMBRA.
9 FAM 502.7-3(E) (U) Synopsis of USCIS Pamphlet for Applicants for K Nonimmigrant Visas and Family-Based Immigrant Visas
(U) Why are we providing the pamphlet?
The International Marriage Broker Regulation Act (IMBRA) requires that the United States government provide, to an immigrating fiancé(e) or spouse of a citizen or resident of the United States, an information pamphlet on legal rights and resources for immigrant victims of domestic violence. Immigrants are often afraid to report acts of domestic violence to the police or to seek other forms of assistance. Such fear causes many immigrants to remain in abusive relationships.
IMBRA also provides for the United States government to provide, to an immigrating fiancé(e) or spouse of a U.S. citizen who has a history of criminal or domestic violence, a copy of the citizen’s criminal background information.
One of IMBRA’s goals is to provide applicants with accurate information about the immigration process and how to access help if a relationship becomes abusive.
What is domestic violence?
The pamphlet provides detailed explanations of the term “domestic violence” and two related offenses, sexual assault and child abuse.
Domestic violence involving current or former partners is a pattern of behavior where one intimate partner or spouse threatens or abuses the other partner or spouse. Abuse may include physical harm, forced sexual relations, emotional manipulation (including isolation or intimidation), and economic and/or immigration-related threats.
Under all circumstances, domestic violence, sexual assault, and child abuse are illegal in the United States. All people in the United States are guaranteed protection from abuse under the law. Any victim of domestic violence can seek help. An immigrant victim of domestic violence may be eligible for immigration protections.
The pamphlet is intended to help you understand U.S. laws regarding domestic violence and how to get help if you need it.
What are the legal rights for victims of domestic violence in the United States?
All people in the United States, regardless of immigration or citizenship status, are guaranteed basic protections under both civil and criminal law. Laws governing families provide you with:
The right to obtain a protection order for you and your child(ren).
The right to legal separation or divorce without the consent of your spouse.
The right to share certain marital property. In cases of divorce, the court will divide any property or financial assets you and your spouse have together.
The right to ask for custody of your child(ren) and financial support. Parents of children under the age of 21 often are required to pay child support for any child not living with them.
What services are available to victims of domestic violence and sexual assault in the United States?
In the United States, victims of these crimes can access help provided by government or nongovernmental agencies, which may include counseling, interpreters, emergency housing, and even monetary assistance.
The telephone numbers or “hotlines” listed in the pamphlet have operators trained to help victims 24 hours a day free of charge. Interpreters are available, and these numbers can connect you with other free services for victims in your local area, including emergency housing, medical care, counseling, and legal advice. If you cannot afford to pay a lawyer, you may qualify for a free or low-cost legal aid program for immigrant crime or domestic violence victims.
What immigration options may be available to a victim of domestic violence, sexual assault, or other crime?
The pamphlet outlines three ways immigrants who become victims of domestic violence, sexual assault, and some other specific crimes may apply for legal immigration status for themselves and their child(ren): (1) self-petitions for legal status under the Violence Against Women Act (VAWA); (2) cancellation of removal under VAWA; or (3) U nonimmigrant status. Because a victim’s application is confidential, no one - including an abuser, crime perpetrator, or family member - will be told that the victim applied. A victim of domestic violence should consult an immigration lawyer who works with other victims to discuss immigration options that may be available.
How does the U.S. Government regulate “international marriage brokers”?
Under IMBRA, “international marriage brokers” are required to give the foreign national client background information on the U.S. client who wants to contact the foreign national client, including information contained in Federal and State sex offender public registries, and to get the foreign national client’s written permission before giving the U.S. client the foreign national client’s contact information. If you are a foreign national client, the agency is required to give you a copy of the pamphlet. It is prohibited from doing business with individuals who are under 18 years of age.
Can a K nonimmigrant visa applicant rely on criminal background information that USCIS has compiled on a U.S. citizen fiancé(e) or spouse?
IMBRA requires the U.S. Government to share any criminal background information on a K nonimmigrant petitioner with the fiancé(e) or spouse who is applying for a K visa as the beneficiary of such a petition. The criminal background information compiled by USCIS comes from various public sources, as well as information provided by the U.S. citizen clients on immigration applications. USCIS does not have access to all criminal history databases in the United States. The U.S. citizen sponsor may not tell the truth in the sponsorship application. It is also possible the U.S. citizen has a history of abusive behavior but was never arrested or convicted. Therefore, the criminal background information an applicant receives may not be complete. The intent of the law is to provide available information and resources to immigrating fiancé(e)s and spouses. Ultimately, you are responsible for deciding whether you feel safe in the relationship.
Can foreign fiancé(e)s or spouses who are victims of domestic violence also be victims of human trafficking?
Other forms of exploitation, including human trafficking, can sometimes occur alongside domestic violence, when the exploitation involves compelled or coerced labor, services, or commercial sex acts. The pamphlet contains information on how to obtain help regarding human trafficking.
9 FAM 502.7-4 (U) Certain Parents and Children of ina 101(a)(27)(I) and (L) Special Immigrants (N Visas)
9 FAM 502.7-4(A) (U) Related Statutory and Regulatory Authorities
9 FAM 502.7-4(A)(1) (U) Immigration and Nationality Act
(U) INA 101(a)(15)(N) (8 U.S.C. 1101(a)(15)(N); INA 101(a)(27)(I) (8 U.S.C. 1101(a)(27)(I)); INA 101(a)(27)(L) (8 U.S.C. 1101(a)(27)(L)); INA 101(b)(1) (8 U.S.C. 1101(b)(1)).
9 FAM 502.7-4(A)(2) (U) Code of Federal Regulations
(U) 22 CFR 41.82; 8 CFR 214.2(n)(4).
9 FAM 502.7-4(B) (U) N Visa Provisions
a. (U) Classification Under INA 101(a)(15)(N): INA 101(a)(15)(N) creates a nonimmigrant classification to minimize any family separations caused by ineligibility for special immigrant status of certain parents and children of persons accorded status under INA 101(a)(27)(I) or INA 101(a)(27)(L). Nonimmigrant N status may be accorded to the following aliens:
(1) (U) The parent of an alien accorded status as a special immigrant under INA 101(a)(27)(I) or INA 101(a)(27)(L), as long as such alien remains a "child" (i.e., unmarried and under 21); and
(2) (U) A child of such parent or of an alien accorded status as a special immigrant under INA 101(a)(27)(I) or INA 101(a)(27)(L).
b. (U) Criteria to Establish Entitlement to Nonimmigrant Status Under INA 101(a)(15)(N): The N classification involves the applicant's relationship to a person who obtained permanent resident status through INA 101(a)(27)(I) or INA 101(a)(27)(L). You must verify that a qualifying relationship exists, and that the relationship is with an alien who obtained permanent resident status through INA 101(a)(27)(I) or INA 101(a)(27)(L).
(1) (U) Verifying Relationship to SK or SN Special Immigrant: The requisite relationship to the SK or SN special immigrant must be substantiated by the submission of verifiable civil documents (such as birth certificates) as appropriate.
(2) (U) Verifying SK Status of Relative:
(a) (U) If the relative in SK or SN status accompanies the N visa applicant to the visa interview, the relative's SK or SN status may be verified from his or her Form I-551, Permanent Resident Card, or passport bearing DHS endorsement reflecting lawful admission for permanent residence.
(b) (U) If the relative in SK or SN status does not accompany the N visa applicant, the applicant shall provide the relative's name, date and place of birth, and/or A-number. Check PCQS to verify the relative's SK or SN status. If you are unable to determine that the relative is in current SK or SN status, request assistance from the USICS liaison officer in VO/F. The verification request should explain that the alien has requested processing for a returning resident visa but lacks proof of LPR status.
(3) (U) Visa Applicant Deriving Status from an N Principal Alien: If the N visa applicant derives status from an N principal alien, the principal alien's N status shall be verified through routine procedures; for example:
(a) (U) Issuance of the principal alien's N visa may be verified with the issuing post;
(b) (U) The principal N alien may accompany the applicant; or
(c) (U) The applicant may present a copy of the principal alien's passport and N visa.
c. (U) Validity for N Visas: Validity for N-8 and N-9 visas is the same as the validity for G-4 visas specified in the appropriate reciprocity schedule. Relationship and age factors may limit the period of validity.
d. (U) Special Requirements for Admission, Extension, and Maintenance of Status: A nonimmigrant granted N status may be admitted for a period not to exceed three years, with extensions in increments up to but not exceeding three years. N nonimmigrant status terminates on the date the child (either the special immigrant on whom the parent's N status is based or the child accorded N status on the basis of the parent's special immigrant status) no longer qualifies as a "child" as defined in INA 101(b)(1).
e. (U) Employment Authorization for N Nonimmigrants: DHS regulations at 8 CFR 214.2(n)(4) state that a nonimmigrant admitted in or granted N status is authorized employment incident to N status without restrictions as to location or type of employment and need not request such authorization.
9 FAM 502.7-5 (U) Private Immigration Bills
9 FAM 502.7-5(A) (U) Related Statutory and Regulatory Authorities
(U) INA 101(b)(1)(F) (8 U.S.C. 1101(b)(1)(F)); INA 101(b)(1)(G) (8 U.S.C. 1101(b)(1)(G)); INA 201(b)(2) (8 U.S.C. 1151(b)(2)).
9 FAM 502.7-5(B) (U) General Information on Private Bills
a. (U) General Background:
(1) (U) Private immigration legislation is an effort to provide extraordinary relief after all administrative remedies under the INA have been exhausted. Based on the information submitted, the Congressional Committees must decide whether such circumstances merit passage of a private law, which, in effect, would exempt the beneficiary from a provision of the law applicable to all other visa applicants or would confer a benefit to which the alien would not otherwise be entitled. It is the Department's experience that Members of Congress, when making an exception to the general immigration laws, examine each private bill very carefully to determine whether there is sufficient equity in the merits of the case. A fully documented background investigation, documented in a post’s private bill report, would not only alert these Members to any relevant facts which might otherwise surface subsequent to the bill proceedings being completed but could also substantiate the necessity of passing the private bill. Since most beneficiaries of private bills are in the United States, and frequently have been for some time, it is rare that posts will be asked to provide a bill report. Instructions are being provided, however, in case a post is asked to prepare one (see 9 FAM 502.7-5(C)(2) below). This section also provides information on processing cases based on private immigration legislation which has passed (see 9 FAM 502.7-5(D) below).
(2) (U) For further information on Congress’ expectations for and receptions to private bills, see the U.S. House of Representatives Judiciary Committee’s “Rules of Procedure and Statement of Policy for Private Immigration Bills” provided below in 9 FAM 502.7-5(E) below.
b. (U) Children: See also 9 FAM 102.8-2 definition of “child” for information on private legislation granting immigrant status as a child under INA 201(b)(2).
9 FAM 502.7-5(C) (U) Private Bill Reports
9 FAM 502.7-5(C)(1) (U) Processing Private Bill Report Requests
a. (U) Purpose of Private Bill Report, General Content Guidelines: A report from the post concerning a private bill case should provide the Chair of the Senate and House Judiciary Committees with relevant information relating to the beneficiary of the private legislation. The report should not only verify the legal basis for which a visa was denied (or could otherwise not be issued) in an individual case, but should also touch on matters that relate to the merits of the case and should contain any other pertinent information which may be of help to the Committees in weighing the equities of the private bill. However, while the chairs of the Committees expect the report to provide detailed facts relevant to their final determination on the private legislation, you should make no recommendation or observation on the merits of the private bill as such. If the files contain information of which the Committees should be made aware, but which does not belong in the official report, you should forward such information in a separate communication to CA/P. Information related to the issuance or refusal of visas is confidential pursuant to INA 222(f) and may only be released to the chairs of the relevant committees, following an official request. If you have questions about release of information and INA 222(f), contact L/CA.
b. (U) Quick Turn-Around Required: When the Department is requested by the chair of a congressional committee to provide a private bill report, it is generally on very short notice. Often the bill is coming before the Committee in the next day or two. Thus, when a Departmental request for a private bill report is received, you must promptly determine whether the visa files contain the necessary information to prepare a report as outlined in this section. In some cases, it will be necessary to interview the beneficiary of the private bill to obtain the pertinent data. If the alien's address is not available, you must so inform the Department for follow-up through the sponsor of the bill in obtaining the information. When preparing the report, reexamine the validity of any previous visa refusal to determine whether subsequently enacted legislation would provide the same relief as passage of the private bill.
c. (U) Full, Interim Responses: Prompt submission of private bill reports is important, as the period during which the Congress is in session and in which it can complete action on private legislation is very limited. A response to the Department’s request must be made immediately. If a full report cannot be made, you must advise CA/P of the reason(s) for the delay and when a full report might be expected.
d. (U) Transmission of Report: Transmit the private bill report promptly to CA/P with a cc to CA/VO/F/OI (the Outreach and Inquiries Division) by e-mail.
9 FAM 502.7-5(C)(2) (U) Information to Include in Private Bill Reports
a. (U) General Guidelines for Content of Private Bill Reports: Provide as much information about the beneficiary and any visa application the beneficiary has made. The report should include:
(1) (U) The private bill (Senate or House of Representative) number;
(2) (U) Biographical data regarding the beneficiary (see paragraph b below);
(3) (U) Any known relationship to a U.S. citizen or Lawful Permanent Resident (LPR), in the United States or abroad;
(4) (U) A complete report regarding any nonimmigrant or immigrant visa application made by the beneficiary, including previous actions taken on the application, claimed purposes of entry into the United States and intended stay, and any circumstances which led to refusal of a visa (see paragraph c below);
(5) (U) Results of clearance requests, including local police and other agencies' name checks, whether negative or not (see paragraph d below);
(6) (U) Any known grounds of ineligibility applicable to the beneficiary, including their general health conditions, and the date and results of their medical examination (see paragraph e below);
(7) (U) Any relief that might be available to the beneficiary that would permit the issuance of a visa, either now or in the future; and
(8) (U) Any information regarding possible hardships for the beneficiary, should the private legislation not be passed.
(9) (U) See also paragraph f below for instructions related to adoption cases.
b. (U) Biographical Data: Biographical data concerning a beneficiary of a private bill should contain:
(1) (U) The beneficiary's name (including aliases, maiden, professional, or religious name, or variant spellings);
(2) (U) Date and place of birth;
(3) (U) Place of residence;
(4) (U) Marital status and, if divorced, duration of marriage or previous marriage(s);
(5) (U) Children, if any, and their date(s) and place(s) of birth and present residence; and
(6) (U) Background data (including, but not limited to, schooling, professional or vocational training or experience, military service, standing in the community).
c. (U) Previous Visa Applications:
(1) (U) General Information on Previous Applications: The private bill report should include actions taken on any previous visa application, including, as applicable, any ground(s) for refusal and the circumstances related to any ineligibilities (see also paragraph e below on reporting on ineligibilities).
(2) (U) NIV Applications: In most instances, the beneficiary of a private bill is in the United States. In cases where the beneficiary entered the United States in a nonimmigrant status, the report must provide the purpose of entry, length of stay, and any statement as to the necessity to return abroad after a visit to the United States as these appear on the visa application. The members of the Senate and House Judiciary Committees place great importance on this information in determining whether the beneficiary had intended all along to obtain immigrant status by circumventing standard immigrant visa procedures.
d. (U) Clearance Checks: Clearance procedures for private bill cases are identical to those for any immigrant visa case and must include checks with other posts, as appropriate.
(1) (U) Whether or not a record of the beneficiary exists in the post's file, you must conduct a check of the local police and clearance sources and submit the results, negative or not, to the Department in the private bill report.
(2) (U) If additional time is required to complete clearance procedures, and to avoid delay in submitting a report because of an incomplete investigation, an interim report should be sent, including a statement to the effect that the results of the investigation will be forwarded at a later date. When the investigation is completed, forward the report by e-mail to CA/P with a cc to CA/VO/F/OI to transmit to the chair of the appropriate Committee.
e. (U) Ineligibility Reviews: When a private bill provides relief from a ground of ineligibility, the private bill report should state whether the pending private bill would remedy all known disqualifications for which the beneficiary might be refused a visa and, if not, the other grounds for which ineligibility exists. In this connection, you must make every effort to ascertain whether other grounds of ineligibility may exist. It is important to avoid embarrassment that could result if additional grounds of ineligibility were to come to light after enactment of the bill.
(1) (U) Drug or Criminal Convictions:
(a) (U) When submitting a report on a bill waiving a drug or criminal conviction, you must furnish:
(i) (U) Complete transcripts of the conviction's related court proceedings;
(ii) (U) Any other record relating to the offense(s), including state and local police records;
(iii) (U) An affidavit from the beneficiary describing any criminal record in full; and
(iv) (U) Any other information available at the post.
(b) (U) In the case of a bill that would provide relief from grounds of a drug conviction, you must also submit the court transcript indicating the exact amount of drug possession at the time of arrest. If such information is not available to you because the beneficiary is not residing abroad or because the courts will not disclose such information, the report must include a statement to that effect and indicate whether the documents may be made available through direct request from the beneficiary. You must submit a certified copy of all documents and their translation to the Department (if available).
(c) (U) In cases in which the beneficiary of a private bill has been convicted of a criminal offense, you must submit a copy of the conviction, with translation if necessary, together with the charges brought against the alien, the applicable provisions of the law, and the judgment of the court.
(2) (U) Health-Related Considerations, Medical Examination:
(a) (U) A beneficiary of a private bill is required to undergo a medical examination. If the beneficiary refuses to comply, you must indicate this fact in the report.
(b) (U) Submitting copies of negative medical findings is not necessary, but the report must include a statement to the effect that no diseases or defects were disclosed.
(c) (U) Submit a copy of the medical report, and its translation if in a language other than English, only if the report shows a medical ground of ineligibility. In such a case, the report by the examining physician must include:
(i) (U) Whether the condition affects the alien's employability;
(ii) (U) Type(s) and results of treatments, if applicable;
(iii) (U) How the alien gets along with others; and
(iv) (U) Any other observations that have a bearing on the prognosis of the particular condition.
(d) (U) In cases involving mental grounds of ineligibility, the report must also include the date of the last known attack or other manifestation of mental affliction and a statement of the prognosis of the case.
(e) (U) In cases where the beneficiary's medical condition would prevent the alien from earning a living, you must provide information as to whether arrangements have been made by relatives to provide for the beneficiary's room, board, adequate medical insurance, and any other necessities in connection with the medical impairment after arrival in the United States, and whether the relatives have provided for the alien in the past in the form of monetary contributions, etc.
(f) (U) If it appears that arrangements for the medical examination will delay submission of the report, you must submit a preliminary report covering all other aspects of the case, with a statement that the results of the examination will be transmitted at a later date.
f. (U) Adoption Cases:
(1) (U) When a private bill would accord the beneficiary the status of “child” based on an adoption, the report should also include:
(a) (U) A specific statement regarding the adoption proceedings (instituted, pending, or completed);
(b) (U) The applicable adoption law in the beneficiary's country; and
(c) (U) Whether the adoptive parent(s) and the child have met and the two-year period of legal custody and residence with adoptive parent(s) has been fulfilled (see INA 101(b)(1)(E)), or, alternately, whether the requirements of INA 101(b)(1)(F) or INA 101(b)(1)(G) (orphan and Convention adoptee cases, respectively), whichever applies, have been met. (See 9 FAM 502.3-3 and 9 FAM 502.3-4(B).)
(2) (U) Three certified copies of the foreign adoption decree and translation, if applicable and available, must be furnished. Evidence of support for the beneficiary, in the form of canceled checks, letters, and clothing, if any, should also be noted as it could favorably affect Congressional determination.
(3) (U) Furthermore, in cases where the results of the medical examination show an affliction or disability, the report must indicate that all pertinent details relating to the affliction or disability have been provided to the adoptive parents and that they have elected to pursue the processing of the visa application to completion.
9 FAM 502.7-5(D) (U) Processing Beneficiaries of Private Legislation
a. (U) The Department’s notification to post of enactment of a private bill permitting issuance of a visa should form the basis for issuing the visa, provided a confirmation of a petition approval (unless such requirement has been waived by the private legislation) has also been received from DHS.
b. (U) Upon receipt of the notification, you must immediately request the beneficiary to appear at the consular office for final interview and issuance of the visa. Unless the bill provides otherwise, the beneficiary must apply for and be issued a visa within two years from enactment of the bill or lose the relief provided by the private law. You must ensure that the beneficiary is aware of this requirement at the time of the scheduling of the visa interview.
c. (U) You must inform CA/P, via email, that the visa has been issued and clearly indicate the number of the private bill or law and the name of the beneficiary. Copy CA/VO/F/OI on that email. CA/P will then inform the applicable chairs of Congressional committees.
9 FAM 502.7-5(E) (U) House of Representative Rules of Procedure and Statement of Policy for Private Immigration Bills
(U) Every Congressional session the Subcommittee on Immigration and Border Security of the Committee on the Judiciary publishes Rules of Procedure and Statement of Policy for Private Immigration Bills. The Rules of Procedure and Statement of Policy for Private Immigration Bills summarizes the legislative intent, rules of procedures, and policy statement of the U.S. Congress in considering private immigration bills.