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Category Archives: K-1 / K-2

Do Fiancé’s of U.S. Citizens Have to Apply for an Employment Card?

A Fiancé of a U.S. Citizen can obtain permission to enter the U.S. through a K-1 visa. Their children can enter the U.S. through a K-2 visa. Upon entry, most people that enter through a K-1 visa, otherwise known as Fiancée visa, want to immediately start working as soon as they find employment.

The question that I receive from many of my K-1 applicants or their spouse is whether they can start working upon their entry into the U.S. My answer is that they must first apply for an employment card. They can apply for an employment card, also known as EAD card, with USCIS. It takes anywhere from 30-90 days for that application to be approved and for the applicant to receive the employment card in the mail.

It is true that the USCIS regulations allow K-1’s to engage in employment pursuant to their status of a K-1 visa. However, according to a recent Customs and Border Patrol (CBP) liaison meeting on or about November 09, 2011, CBP made it clear that, “a K1 must apply …for an EAD.”

In the past, CBP officers would write on the I-94 card that work was authorized, and this was often used by K-1’s when they applied for work in the U.S. However, it appears that CBP has stopped this practice.

The bottom line is that K-1’s must apply for an employment card and wait for the approval of that employment card before they start working in the U.S. Of course, once the K-1 marries the U.S. citizen and files his or her green card application, the employment card can be filed as a part of that application.

Good News for Children of Fiancé Visa Holders (K-2)

The Board of Immigration Appeals, also called BIA, recently issued a favorable decision on June 23, 2011 regarding the “children” of fiancé visa holders who turn 21 years old after their entry into the U.S. as a K-2. Children that are under 21 years old can enter the U.S. with their mother, or sometimes their father, as a K-2 and the parent enters as a K-1, fiancé of a U.S. citizen. However, questions arise when that child turns 21 years old.

The BIA has provided a clear cut rule that states that if the child enters the U.S. while he or she was under 21 years of age, then that “child” may still adjust status by being petitioned by the U.S. citizen step-parent, even if he or she turns 21 years of age before the green card is issued.

This is a very good rule for K-2 visa holders, since for other step-child petitions, there is a general rule that the marriage between the biological parent and the step-parent should have occurred before the child was 18 years old. However, the BIA has changed this rule for applicants that enter with their parent under K-1 / K-2 visas.

In the case of Matter of Le, BIA 2011, the applicant entered the U.S. at the age of 19 along with his mom. His mom entered the U.S. as a K-1, fiancé of a U.S. citizen, and he entered as a derivative child, K-2. He entered as a minor child who was accompanying, or following to join, his mother. The mom of the applicant married the U.S. citizen when the child was already over the age of 18 years old. The USCIS Denied the applicant’s green card, stating that he no longer qualifies as a step-child, since he was not under 18 years when the marriage took place. He was placed in removal proceedings, and the Immigration Judge then ordered him removed, i.e. deported, from the U.S. because at that time he was also over the age of 21 years old and no longer met the definition of “child.”

The BIA disagreed with both USCIS and with the Immigration Judge, because they held that it is the age of the child at the time of entry into the U.S. that controls, and not the age of the applicant when the marriage of the mother and step-parent took place or age of the applicant at the time that his green card is adjudicated, that matters, if the applicant entered as a K-2 visa holder.

The BIA remanded the case back to the Immigration Judge with instructions for the Immigration judge to grant the applicant’s adjustment of status petition even though the applicant was already over the age of 21 years and even though the marriage of his biological mother to his step-father occurred after he had already turned 18 years old. These special provisions apply strictly to children that enter the U.S. as a k-2 visa holder, which is a child of a K-, fiancé of a U.S. citizen.