The USCIS has promised to review the K-1 visa
procedures after the San
Bernardino attacks since one of the attackers entered on this visa. The K-1
visa is commonly used by a fiancé of a US citizen spouse to enter the United
States, and one of the conditions (with some exception) is that the parties
must have met within the past two years prior to filing the application. Once
the fiancé enters the United States, he or she must get married to the US
citizen within 90 days, and then apply for the green card.
While it is unfortunate
that a foreign terrorist used the K-1 visa, this does not mean that the K-1
visa should be restricted for all fiancés. The K-1 visa provides the only
access for a fiancé to enter the US. While one can enter the United States as a
visitor to get married, one cannot also enter with the intention of adjusting
to permanent residence status in the United States. Curtailing the K-1 visa
will also limit the ability of US citizens to seek foreign spouses. Moreover,
the K-1 visa procedure already has in built rigorous screening, and this author
has known of delays due to security clearance of K-1 applicants even prior to
the California terrorist attacks that left 14 people dead.
As an alternative to the
K-1 visa, a US citizen can marry a foreign spouse and directly petition for an
immigrant visa. There is only a marginal difference in the time it takes under
both the processes. From the point of view of not waiting to celebrate
the marriage, it is quicker. However, in terms of processing time, it takes
about the same amount of time for a K1 visa or marriage based I-130 petition to
get approved, and the same amount of time for the scheduling of the interview
at the US consulate. Once the K-1 visa is issued, the parties have to get
married in the United States within 90 days prior to filing the green card
application (if they get married after 90 days, the I-130 petition must be
filed). Thus, there is an additional extra step before the applicant can
receive the green card when compared to a beneficiary of a spousal I-130 visa
petition who is admitted into the United States as a permanent residence.
Even if the K-1 visa is
not curtailed by Congress (and hopefully that will not be the case), there is
bound to be more scrutiny after the shootings. To be eligible for the K-1 visa,
it is important that there be no legally valid marriage as the applicant must
remain a fiancé. Even religious marriages that are legally recognized as
marriages may disqualify the applicant. The authorities will try to ferret
out cases if they discover that the parties got married prior to the issuance
of the K-1 visa. In traditional cultures, a marriage is
generally preferred, and if an applicant is not permitted to be with the
prospective US citizen spouse without a marriage, one should not file the K-1
visa and directly file for a spousal immigrant visa. In fiscal year 2014, only
4 K-1 visas were issued in Saudi Arabia as compared to 7, 228 K-1 visas in the
Philippines. Still, even if there is no marriage, the authorities will
look more closely after the San Bernardino shootings to see whether this is a
bona fide relationship, which is harder to prove when there is no marriage.
There will also be more security checks and delays relating to the K-1 visa,
although even in the past, delays as a result of security checks were extremely
frequent.
The essential point that
must be made is that terrorism is separate from immigration. While additional
screenings for K-1 visa applicants will be inevitable, they must not in effect
nullify the K-1 visa. By the same token, beneficiaries of marriage-based I-130
petitions should also not get excessively delayed as a result of additional
scrutiny. Both the K-1 and I-130 procedures take upward of six months, and
fiancés as well as spouses from countries with predominant Islamic populations
have in any event been impacted since 9/11. It has also been revealed that the
shooter who received the K-1 visa also talked openly on social media about
violent jihad. Those social media comments were not subject to the security
checks that she underwent, and in the future, the authorities are more likely
to pry into one’s comments on social media. While comments relating to causing
violence should be taken seriously in the visa application process, it is hoped
that harmless comments made in the exercise of free speech in opposition to US
policy or events, such as feeling disgust about Donald Trump’s statements
regarding banning Muslims or criticizing US drone policy, should not be used as
a basis to play “gotcha” during the security screening of a visa
applicant.
US citizens must be free
to marry foreign spouses of their choosing. Imagine if Trump’s desire to ban
Muslims from being admitted become reality. Americans will not be able to bring
in fiancés or spouses who are Muslims. Note that this has de facto been the
case, exemplified in the Supreme Court case of Kerry v. Din, where the
plurality of the court upheld the limited power of courts to review adverse
consular decisions. In Kerry v. Din, the foreign national
spouse in Afghanistan was denied an immigrant visa by citing the terrorism
ground of inadmissibility, INA 212(a)(3)(B), without any further
explanation.
US immigration law is already very complicated, made further convoluted with security checks since 9/11. There is no need for Congress to curtail the K-1 visa, which in turn will make it harder for Americans to marry foreign spouses abroad. It is hard for an employer to sponsor a foreign national employee for a green card as the employer must certify that it was not able to find an available and willing US worker before being able to sponsor a foreign employee for a green card. The reason for this is that there is a countervailing policy interest in protecting American jobs. It would be absurd to similarly restrict an American’s ability to marry and sponsor a foreign spouse as a result of countervailing security concerns. One unfortunate misuse of the K-1 visa, which has otherwise worked very well, should not be the reason to make it harder for Americans to marry foreign spouses overseas.
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