Terminated Employee’s Ability to Petition Fiancée05 January 2012
Dear Atty. Lou,
My cousin is a United States citizen and he wants to get married this year. He wants to petition his fiancée. His problem is that he filed his income tax return this year for 2010 but for 2011 he would be filing “no income” because he was laid of from work for a year. But, this month of January he would be starting his new job. His concern is, would it affect his petition to his wife if his financial documents or Income Tax Returns (ITRs) are not somewhat perfect (no income in his latest income tax return). Can he still petition her fiancée? Or does he need to have 2 more years to file and have better ITRs? Are there other documents he can submit to be able to petition her? And also, can his family help him in the petition of his fiancée? His brother can help and is supportive of him since he has a business. Can the brother or his family submit an affidavit of support to fulfill the financial requirements of the petitioner?
Fiance visa or the K1 visa is a nonimmigrant visa that is issued to fiancé of U.S. citizens. It is only granted for a period of 90 days. Within that period of time, the fiancé is expected to marry the U.S. citizen and thereafter an immigrant visa or green card visa application may be filed.
For the K1 visa, both the Department of Homeland Security and the Department of State have explicitly stated that an Affidavit of Support is not a mandatory requirement. In a June 2006 regulatory publication 71 FR 35732, the U.S. Citizenship and Immigration Services clarified that Section 213A of the Immigration and Nationality Act requiring an I-864 Affidavit of Support does not apply to fiancé visa applicants.
The Department of State expresses clearly that the I-864 Affidavit of Support required from immigrant visa applicants is not applicable to fiancé visas and may not be required by the consular officers. But it is important to note that while the I-864 Affidavit of Support is not required, another form known as the I-134 which is also an old version of an Affidavit of Support may be requested when it is deemed useful. This means that while the mandatory 213(A) affidavit of support for immigrants may not be required, the applicants are still subject to 212(a)(4) that the fiancé will not become a public charge.
If the consular officer requires the I-134 Affidavit of Support, the petitioner’s letter from the employer, latest pay stub and other evidence that fiancé may be self supporting will suffice.
In response to your specific queries, your cousin may still petition his fiancé. He does not have to submit income tax returns but must support his fiancé applications with proof that he is now currently employed.
As soon as the fiancé arrives and immigrant visa application is filed, then he needs to submit an I-864 Affidavit of Support and if the income does not meet the support guidelines, his brother may submit an additional Affidavit of Support as a co-sponsor.
I hope this information is helpful.
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808 or at 1 888 930 0808, email at firstname.lastname@example.org. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to email@example.com).