All posts by Cheng, Cho, & Yee, Immigration Lawyers

How Does U.S. Law Define DACA?

To define DACA, it is an immigration program available to certain types of immigrants. The Deferred Action for Childhood Arrivals (DACA) program helps temporarily protect children who came to the U.S. without legal status from deportation.

Define DACA

The Deferred Action for Childhood Arrivals program, or DACA, helps children who came to the country illegally as children by enabling them to gain employment, obtain a social security number, and acquire a driver’s license. 

For DACA applicants to be eligible for this program, they need to meet certain criteria. Specifically, they must:

  • Have entered the country illegally before their 16th birthday
  • Have been under the age of 31 on June 15, 2012
  • Have lived as residents in the U.S. since June 15, 2007
  • Have been physically present in the country on June 12, 2012, and upon requesting permission to apply for the DACA program
  • Have a high school degree or GED, be in school, or have received honorable discharge from the U.S. military
  • Have been unlawful residents on June 15, 2012

In addition, applicants for DACA must not have a criminal conviction involving a serious misdemeanor or felony or three or more misdemeanors on their record. Any individuals whom the government deems a public safety or national security risk will also be ineligible.

How Do You Apply for Deferred Action?

After you understand how to define DACA, the process of applying begins with filing the right forms. One form you will need to complete is Form I-821D Consideration of Deferred Action for Childhood Arrivals. You must also file Form I-765 Application for Employment Authorization Document. Keep in mind that there are fees in place for submitting these forms.

The next step will be to schedule a biometrics appointment with U.S. Citizenship and Immigration Services (USCIS). During this appointment, USCIS officers will take your fingerprints and a photo. They will also ask you to sign your name. Officers then cross-check this data with the Department of Homeland Security (DHS) database of non-citizens and the Federal Bureau of Investigation (FBI) criminal database.

You will need to provide the right supporting documents to USCIS officers when applying for the DACA program. This documentation will include proof of identity, proof of residency, and more. If you need assistance with the application process and preparing all supporting documents, Chicago immigration legal services attorneys may be able to help you. 

How the DREAM Act of 2021 Works

Going beyond deferred action is the Development, Relief, and Education for Alien Minors (DREAM) Act. The immigrants who fall under the protection of this particular act are known as Dreamers. 

A Dreamer is any young undocumented immigrant who entered the U.S. as a child. Millions of Dreamers live in the U.S. and don’t benefit from the same legal rights and permissions as natural-born U.S. citizens. The U.S. government first proposed the DREAM Act in 2001, but to this day it is still undergoing voting to put it into law. 

While DACA eventually came along to give young immigrants the chance to avoid deportation and live and work legally in the U.S., the DREAM Act has yet to pass through Congress. If passed into law, the DREAM Act would go farther than DACA by providing even more protections for immigrants. It would help Dreamers become legal permanent residents and, eventually, citizens. Meanwhile, DACA provides immigrants with the opportunity to defer action while requiring individuals to renew periodically.

Eventually, the DREAM Act could become a valid piece of legislation that gives Dreamers more protection than DACA. With a green card obtained through the DREAM Act, Dreamers would never need to renew their status. Becoming citizens through this law would also help protect them from deportation for the rest of their lives. In addition, having a green card would allow Dreamers to sponsor their immigrant family members to help them obtain LPR status or get certain non-immigrant visas.

What the DREAM Act of 2021 could mean for you as an immigrant in the end is the chance to avoid the need for deferred action entirely as you gain LPR or citizen status. 

What Is the Immigration and Nationality Act?

The Immigration and Nationality Act (INA) is the body of law that dictates immigration policy in the U.S. It’s the Act that has enabled many immigrants to obtain visas across a range of categories and continues to do so. 

The evolution of the Immigration and Nationality Act has been long and met with controversy. While many politicians have fought for more rights for immigrants, others have worked to develop more restrictions and maintain existing ones. It has seen different versions over the years since the 19th century as more immigrants entered the U.S. and sought rights along with citizenship.

The most recent version of the Immigration and Nationality Act is the INA of 1965, also known as the Hart-Cellar Act. The biggest change seen with this iteration of the act was an increase in the number of people who could immigrate from countries outside of Western Europe. It significantly changed the future of immigration in the U.S. by enabling immigrants from all over the world to enter the country legally and obtain LPR status and citizenship.

The INA was instrumental in paving the way for immigrants in the future to live and work in the U.S. legally. The DREAM Act and DACA program has resulted in part from the passing of the INA and subsequent legislation.

The Future of Immigration Law in the U.S.

Although the DACA program gives young immigrants the chance to avoid deportation through certain protections, the DREAM Act would help even more immigrants who wish to enjoy life in America.

An immigration attorney may be able to help you learn more about what your options are if you wish to apply for DACA or other opportunities. A lawyer may also be able to provide some guidance during the application process to help ensure you submit all necessary forms and collect the appropriate supporting documents.

How to Stop Removal Proceedings

US flag and citizenship and immigration paperwork

Depending on your circumstances, there are several options for how to stop removal proceedings. Criminal charges, visa violations, and other factors may result in you facing deportation from the U.S. If you find yourself in such a situation, it benefits you to understand the situations that will stop removal proceedings, and how they may apply to your immigration case. 

US flag and citizenship and immigration paperwork

Can an Immigration Lawyer Help You Stop Removal Proceedings?

Deportation Defense Lawyer Bonita Cho

If you’re involved in removal proceedings, and you want to avoid deportation, you may be able to stop these proceedings with the help of a deportation defense attorney. 

The right immigration lawyer may be able to work with you to build a defense and present it to the judge in your case. For example, your attorney may be able to show that you are an American citizen because of a parent or grandparent who is a U.S. citizen. Your attorney could also argue that you qualify for asylum if you face persecution in your country of origin, or he or she may find another reason why you qualify for termination of the case.

The Deportation Process

Many immigrants in the U.S. face deportation for specific reasons. If the government decides to deport an immigrant, it will begin the deportation process, which involves removal proceedings that may eventually lead to the immigrant’s removal. 

There are several steps involved in the deportation process that you should understand if you’re at risk of removal.

The Decision to Deport

Immigrants face deportation for several possible reasons. One of the main reasons is entering the country illegally, either without documents authorizing their entry or with counterfeit documents.

In addition, immigrants may undergo removal for other reasons. These may include violations of their green card or visa, convictions of certain serious crimes, assistance with smuggling illegal aliens, and marriage fraud, among others.

Removal and Expedited Removal

If the government finds a reason to deport you, the removal process will begin. This could involve either traditional removal proceedings or expedited removal, depending on the nature of the deportation.

During removal proceedings, you may need to appear in court before deportation occurs. In court, you will have the chance to argue why you don’t qualify for removal, at which point an immigration attorney can help. A lawyer may be able to help build a defense and present evidence showing why you have the ability to avoid deportation.

However, under certain circumstances, immigrants may undergo expedited removal. In these cases, you won’t be able to go to court and provide a defense. Generally, expedited removal occurs when individuals attempt to enter the country illegally and don’t have proper documentation. Once an officer discovers illegal entry is taking place, the officer may require the immigrant to immediately return to his or her home country. 

If the government orders expedited removal, you will be unable to enter the U.S. again for a minimum of five years. On the other hand, you may be able to enter the country under specific conditions, such as when claiming legal status or seeking asylum, in which cases judges and officers may be able to review your case before initiating removal.

Who Is Eligible for Termination of Their Case?

Depending on your case and the circumstances involved, you may be able to avoid deportation with the dismissal or termination of the case. 

The following are some of the specific circumstances that may make you eligible to have your case terminated.

You Don’t Qualify for Removal

The U.S. government must be able to provide evidence explaining its decision to remove you. In some cases, you may be able to show that you don’t actually qualify for deportation with sufficient evidence.

For instance, you may not qualify for removal if you have U.S. citizenship, the Department of Homeland Security neglected to go through the proper process of deportation, or you committed crimes that don’t fall under the umbrella of crimes warranting deportation.

You Didn’t Receive a Notice to Appear

In some cases, you may not receive a notice to appear in court, which could also disqualify you from removal. Even if the government sent you a notice, you may not have received it directly, or it may have gone to the wrong address. 

You Want to Apply for Adjustment of Status

Certain situations may allow you to apply for adjustment of status to become a lawful permanent resident (LPR). This could be possible if you have a relative with a green card or U.S. citizenship. The court may then terminate the case so you may pursue this relief.

You Are a U-Visa Holder

Victims of physical or psychological abuse may qualify for a U-Visa if they cooperate with law enforcement to assist with making arrests or identifying criminal activity. If you agree to help law enforcement officers and qualify for a U-Visa, you may eventually be able to receive a green card. If you have a pending U visa, the court may agree to terminate your case.

You Agree to Voluntary Departure

If other options are unavailable to you, or you want to increase your chances of returning at a later time, you can apply for voluntary departure. This will prevent deportation from affecting your record, which will make it easier to re-enter the U.S. legally and reduce the penalties of illegal entry.

If you choose to leave the country voluntarily, the government will give you more time to prepare to leave than you would normally receive. Typically, immigrants who agree to voluntary departure have around 60 to 120 days to prepare all necessary paperwork and make arrangements with their home country.

A lawyer may be able to help you determine if these or other possible options exist for you to stop removal proceedings as you attempt to remain in the U.S.

When You Can Return to the U.S.

You may also wonder how long after deportation can you return to the U.S. The amount of time will differ depending on your specific case. Removal could be anywhere from five years to permanent. 

In some cases, immigrants will need to wait five years before they can return to the U.S. Others may need to wait for 10 years before re-entry if an immigration Judge ordered the person’s removal. 

If you attempt to re-enter illegally before the waiting period ends, this could warrant a 20-year waiting period before you’re allowed to re-enter legally. In extreme cases, you will be permanently unable to re-enter the U.S., with permanent bans resulting from serious criminal convictions and unlawful entry.

Stopping Removal Proceedings with the Help of an Attorney

When seeking to prevent deportation and removal, you may need some assistance. If your case is complex and the risk of deportation is high, an immigration attorney can help stop deportation in certain situations.

An attorney can let you know of your rights and help you identify ways to stop deportation based on the unique aspects of your case. He or she may also be able to represent you during removal proceedings and provide a strong defense in court with ample evidence to support your argument.

If you’re facing deportation and wonder how to stop removal proceedings, you may have options to stay in the U.S. 

Immigration Adjustment of Status: How Can I Adjust from Work-Based Immigration to Family-Based Immigration?

immigrant happy family lands at airport with baggage and passport looking to Adjust from Work-Based Immigration to Family-Based Immigration.

If you have a qualifying family member with permanent residence or U.S. citizenship, and you are wondering about immigration adjustment of status, you may be able to adjust from work-based immigration to family-based immigration. Knowing the processes involved and how they work may help you change your status without issue, and possibly avoid the employment-based green card backlog. 

immigrant happy family lands at airport with baggage and passport looking to Adjust from Work-Based Immigration to Family-Based Immigration.

What Is Family-Based Immigration?

Family immigration involves lawful permanent residents (LPRs) or U.S. citizens sponsoring immigrant family members to help them gain LPR status or citizenship. If you came to the U.S. on a work visa, it may be possible to adjust your status if you have a family member with authorization to help you make the adjustment.

Today, family-based immigration is behind the majority of green cards in the U.S. In 2020 alone, 45% of new immigrants were immediate relatives of American citizens, with 17% comprising immigrants whom another family member sponsored.

Who Is Eligible for a Family Visa?

If you want to adjust your E-1 visa or other employment-based status and qualify for family-based immigration to the U.S., you’ll need to fall into one of two main categories of immigrants. These include:

Family Preference Categories

These are individuals who may be:

  • Unmarried children of American citizens who are 21 and over, also known as first preference (F1)
  • Unmarried children of LPRs who are under 21 and LPRs’ spouses, i.e. second preference (F2A)
  • Unmarried children of LPRs who are 21 and over, who also fall under second preference (F2B)
  • Married children of U.S. citizens who fall under third preference (F3)
  • Siblings of U.S. citizens, providing the citizen is 21 years of age or older, also known as fourth preference (F4)

Immediate Relatives

Certain immediate relatives could qualify for a family-based visa. These include spouses of American citizens or the children of American citizens who are unmarried and under the age of 21. Others may include orphans adopted outside the U.S. and those to undergo adoption in the country, along with the parents of citizens who are 21 or older.

What Is an Immigration Adjustment of Status?

Immigrants who want to become LPRs in the U.S. will need to adjust their status. If you successfully complete this process, you will be able to obtain a green card without the need to go back to your country of origin and undergo visa processing. To qualify for adjustment of status, you will need to meet certain requirements. In some cases, another process such as consular processing may be necessary to help you become an LPR or a U.S. citizen.

Criteria for Adjustment of Status and Exceptions

If you want to undergo adjustment of status to become a permanent resident, there are certain criteria you must meet beforehand.

Generally, you will be able to adjust your status if you live and work in the U.S. legally, but there are specific requirements to consider. The criteria for applying for adjustment of status (AOS) are as follows:

A Physical Presence in the U.S.

Immigrants who want to apply for AOS need to be physically present in the U.S. Otherwise, they’ll need to go through processing with their local consulate in their home country.

An Approved Immigrant Petition

When filing through family-based immigration, applications will need to have an approved immigrant petition. If you are the immediate relative of someone who has U.S. citizenship, you may be able to file this petition and an AOS application at the same time through this relative. 

Legal Entry into the U.S.

All AOS applicants must have undergone inspection and gain entry into the U.S. legally. Keep in mind that inspection takes place when officers with U.S. Citizenship and Immigration Services (USCIS) greet you at your port of entry, at which point they will determine whether you are legally permitted to enter the U.S.

Consistent Circumstances

If certain circumstances change involving family relations, work, or other aspects of your life, it could impact your ability to apply for AOS.

For example, if an immediate relative such as a parent is sponsoring you, and the relative dies, you will no longer be able to have sponsorship under this person. Another example could involve an 18-year-old unmarried child of an LPR who then gets married. At that time, the child would no longer qualify for sponsorship due to his or her change in marital status while under the age of 21.

Work could also impact your employment-based immigration and ability to apply for adjustment of status. For instance, an employer may withdraw a particular position while an applicant awaits the approval of his or her petition for permanent residence status via employment-based immigration status. This would prevent the immigrant from changing status due to the fact that an EB-2 visa, EB-3 visa, or EB-4 visa requires a valid job offer.

Potential Exceptions to AOS Guidelines and Criteria

Depending on the specific case, exceptions may apply if a person would ordinarily not qualify for AOS. For instance, you may be able to bypass the need to be a legally admitted and inspected resident in the U.S. if you are seeking asylum in the country.

In any case, you will need to provide sufficient evidence that supports your application.

The Different Types of Family-Based Adjustment of Status

If you want to adjust from work-based immigration to family-based immigration, it’s important to know how family-based immigration works and what you’ll need to prepare for each type of family immigration.

Fiancé Petitions

If you are not yet married, you may be able to apply for AOS if you intend on getting married to a U.S. citizen who can petition for a K visa. To qualify for this visa, you will need to show that your relationship and upcoming marriage are valid and in good faith. 

In these instances, beneficiaries will need to enter the U.S. within six months of visa approval, get married within 90 days, and begin the process of filing for AOS.

Marriage-Based Immigration

If you are already married to a U.S. citizen or LPR, you may be able to apply for AOS through your spouse. Like fiancé visas, marriage-based visas require applicants to be in a valid marriage and relationship, with evidence showing that you got married for personal reasons that didn’t pertain to gaining permanent residence or citizenship.

Different types of legal marriages are acceptable when applying for this type of visa. These can include conventional marriages along with arranged and same-sex marriages. 

Petitions for Immediate Relatives

In addition to spouses and fiancés, U.S. citizens may be able to petition for parents, siblings, or children who count as immediate relatives. Normally, these individuals wouldn’t need to wait to receive a visa or be subject to the green card waiting time by country. However, there are circumstances when they may need to go through a waiting period. As discussed, the waiting time will depend on the preference category that family members fall under.

Steps for Adjustment of Status

US map with the steps listed within the boundries: 1. Determine Eligibility 2. File a Petition or Have Someone File on Your Behalf 3. Check Availability if Needed 4. File Form I-485 5. Record Biometrics with the Application Support Center 6. Attend an Interview if Required 7. Provide Additional Evidence as Necessary 8. Check the Status and Await a Decision

If you would like to adjust from work-based immigration to family-based immigration and believe you meet the criteria for AOS, there are specific steps you will need to take as disclosed by USCIS.

These steps entail the following:

1. Determine Eligibility

The very first step you’ll need to take is to find out whether you’re eligible for adjustment of status. The requirements in place will depend on the type of visa you want to apply for and the nature of your relationship with your family member.

2. File a Petition or Have Someone File on Your Behalf

In most family-based immigration cases, AOS applications will need to have a family member who is an LPR or U.S. citizen file a petition for them. In some cases, you may be able to file on your own. For instance, widowers or widows of American citizens may be able to file for themselves.

Not all categories require approved petitions, but most make this a requirement before immigrants can file Form I-485, Application to Register Permanent Residence or Adjustment of Status. Depending on the circumstances and category, you may be able to file this form when you or your family member files the petition.

3. Check Availability if Needed

Before filing Form I-485, you may need to wait until you can obtain a visa in your designated category. The preference category you’re under will determine how long you must wait until your visa is available. 

You can check the priority date of your visa by looking at Form I-797, which will come with the petition that your family member files. Generally, the amount of time you need to wait for your visa to become available will depend on the following key factors:

  • Visa limits per country
  • The demand and supply of visas
  • The number of visas available per category

In the case of family-based immigration, the priority date will be the same date that USCIS receives and accepts Form I-130 or Form I-160.

4. File Form I-485

Once your visa is available, and you meet the criteria for adjusting status, you can proceed by filing Form I-485. USCIS provides instructions about for completing this form and filing it. 

5. Record Biometrics with the Application Support Center

The next step requires you to submit biometrics data to your nearest Application Support Center. USCIS will notify you of your scheduled appointment after approving Form I-485. You’ll need to attend your scheduled appointment at a designated center. If you can’t make the appointment and need to reschedule, you should notify USCIS as soon as possible. If you fail to make a scheduled appointment without prior notification, USCIS may reject Form I-485.

At your appointment, staff will then request a photograph, fingerprints, a signature, or two or more of these items. The purpose of collecting biometrics data is to enable employers and others to conduct security and background checks. Your data will go into a national database with other LPRs and U.S. citizens.

You should ensure that all the data you submit at your appointment is valid. USCIS will verify this during the appointment.

6. Attend an Interview if Required

Following your appointment with your local Application Support Center, USCIS will decide whether you need to attend an additional interview to provide more information about yourself and your application. If officials determine that you must undergo an interview, USCIS will send you a notification that includes the details about the interview, including the office you’ll need to visit and when the interview will take place.

Be sure to bring plenty of documentation to support your application, including travel documentation and passports.

7. Provide Additional Evidence as Necessary

USCIS will also let you know if you need to submit any additional supporting documentation. For example, if your information becomes invalid and outdated, you may need to provide more evidence to correct it. 

8. Check the Status and Await a Decision

Once you’ve taken all previous steps, you will need to wait for USCIS to make a decision. During this time, you can check the status of your application online. If USCIS denies your application for adjustment of status, you may have the chance to appeal the decision.

Take the Proper Steps to Adjust from Work-Based Immigration to Family-Based Immigration

By going through the process properly, you can adjust from work-based immigration to family-based immigration with little or no issues along the way. Knowing how to go through this process and taking the right steps toward obtaining permanent residence or citizenship will help with adapting as an American immigrant.

If you’re not sure how to approach the process to adjust from work-based immigration to family-based immigration or want to ensure you have all documentation prepared, a family immigration attorney may be able to provide some guidance and assist with filing. You’ll gain a better understanding of the process and what it will involve.

By retaining the right immigration lawyer and determining whether you qualify for family-based immigration, you will increase your chances of successfully applying for adjustment of status with USCIS. You’ll then be on your way to becoming an LPR or U.S. citizen with the help of your family members.

What Do the Priority Dates Mean for Employment-Based Immigration?

close up shot of a clock over a calendar illustrating priority dates for employment-based immigration.

If seeking immigration status through your job, you will want to know, “what do the priority dates mean for employment-based immigration?” Priority dates establish an immigrant’s place in line when attempting to receive a green card. They apply to employment-based immigration along with family-based immigration. It’s important to understand what your priority date is to figure out when you’ll be able to receive your green card. 

close up shot of a clock over a calendar illustrating priority dates for employment-based immigration.

What Is a Priority Date for Immigration?

During the employment-based immigration process, you will receive a priority date. For immigrants in the U.S. for work, the priority date is typically the date when the U.S. Department of Labor (DOL) obtains the labor certification application that the immigrant’s employer submitted. The priority date also applies to family-based immigrants who need a family member to file the appropriate form.

Once they have reached their priority date, immigrants may be able to proceed with the application process. 

What Determines Who Needs a Priority Date?

Some immigrants won’t need to wait for a priority date to continue with the immigration process. If they are immediate relatives, or their visa numbers are current, individuals may not need to wait at all.

However, you will need to wait under certain circumstances. Specifically, if you are immigrating to the U.S. on an employment or family basis, a priority date will apply if you are in a preference category that is not current. Because the annual number of visas issued is limited in certain categories, individuals may have to wait for their turn in line to obtain a visa. 

What Influences the Priority Date?

A few key factors will determine what kind of priority date you have as an immigrant. The waiting time will depend on:

  • The number of visas in your specific category
  • The limits of visas for each country
  • The supply and demand for visas

How to Determine Your Priority Date for Immigration Purposes

If you’re in the country to work under an employer, the priority date will differ depending on the specific category you’re in, such as:

Workers Requiring DOL Labor Certification

Your priority date will be the date when DOL receives your employer’s labor certification application, which will enable you to move forward. To facilitate this, employers need to file Form I-140 Immigrant Petition for Alien Worker within 180 days of the specific labor certification’s approval date. The labor certification will expire if the petitioner fails to meet this time constraint.

Preference Categories That Don’t Need Labor Certification

If the DOL doesn’t need to accept a labor certification application, U.S. Citizenship and Immigration Services (USCIS) will be the next department to set the priority date. In these instances, the priority date will fall on the date when USCIS receives Form I-140. At this point, USCIS can determine whether the immigrant worker falls under the designated category.

Fourth-Preference Special Immigrants

Special immigrants in this category include religious workers. If you fall under this particular category, your priority date will be when USCIS receives Form I-360.

Fifth-Preference Investors

Individuals who are fifth-preference investors will also go through USCIS. The priority date will be when the government receives Form I-526.

Where to Find Your Priority Date

You can find the priority date for employment-based immigration on the Visa Bulletin. 

The government’s Visa Bulletin updates every month. Whenever it updates, you’ll be able to view your priority date based on which green card applications can proceed. You’ll also be able to determine the length of time you need to wait before you qualify for a green card based on the progression of the waiting period. After your employer files Form I-140, you’ll be able to view your progress until the date finally arrives.

Checking the Progress of Your Priority Date

As mentioned, the Visa Bulletin will display your priority date and allow you to track it. You’ll see a complete list of priority dates according to different categories. If you’re wondering how to read the bulletin and understand your specific date, consider when viewing the board, if a visa is available for your country and in your category, you’ll see this reflected in the bulletin. Specifically, if this is the case, the Visa Bulletin will list your corresponding country and category as “C” for “current” upon reaching the priority date. At this point, you will be able to proceed with the application process once the National Visa Center (NVC) gets in touch with you about your application. 

In other words, the priority date won’t apply, and you’ll likely be able to proceed with your application. In some cases, the bulletin may show a specific date for your category and country in place of a “C” status. If this date is later than your priority date, this indicates that you will soon be able to continue the application process. 

When an Immigration Lawyer May Help

Immigration Attorney Bonita Cho

The immigration process can be confusing for many, especially when there are so many elements and steps involved. An immigration lawyer may be able to help you better understand whether a priority date applies to your case and help you determine when you’re likely to be able to continue forward.

Even if you’re unsure what to ask an immigration lawyer when it comes to your priority date, an experienced attorney can still help explain what the priority dates mean for employment-based immigration and guide you through the process. A reliable attorney will be able to sit down with you to discuss your case in a free consultation.

If you want to see an attorney about employment-based immigration, there are some key documents to bring an attorney. Financial documents, court records, copies of your application, and other information can go a long way in helping lawyers paint a picture of your case.

Once your priority date becomes current, you will be able to continue obtaining your employment-based visa and eventually complete the immigration process.

What if I Don’t Meet the Income Requirements for a Fiancée Visa?

gold dollar signs on a field of blue, indicating the need to meet the income requirements for a fiancee visa.

If you don’t meet the income requirements for a fiancée visa, you should explore other options with the help of an immigration lawyer. Sponsors on a fiancée, or K-1, visa need to meet certain requirements. Doing so indicates to United States Citizenship and Immigration Services (USCIS) they can support themselves and their fiancées financially. If you meet these requirements, you may successfully apply for the K-1 visa and be able to sponsor a fiancée who is currently unable to enter and work in the US.

meet the income requirements for a fiancee visa


Understanding the K-1 Fiancée Income Visa Requirements

Before applying for a K-1 visa, you will need to make sure you meet the requirements in place. Generally, fiancées of US citizens facing fewer barriers to entering the United States will still be unable to gain lawful entry into the US and marry. If they can take the appropriate steps to obtain this visa with their fiancé’s sponsorship, they’ll be able to gain entry and employment.

USCIS has established these requirements as follows:

Stable Gross Earnings Exceeding 100 Percent of the Federal Poverty Guidelines

One of the main requirements for a K-1 visa is for sponsors to have “stable” gross earnings that are more than 100 percent of the federal poverty guidelines after business deductions. However, this amount will increase to 125 percent following marriage and when the fiancée aims to gain permanent residence in the US.

Based on these percentages, as of 2022, you would need to earn at least $17,420 to provide for both you and your fiancée before marriage. After marriage, this minimum would increase to $21,775. 

Additionally, you will need to file Form I-134, Declaration of Financial Support. If you plan to support more than your fiancée, you must file a form for each individual.

You would also need to disclose tax returns to further show that you’re making sufficient taxable income. 

What Counts as Income?

When qualifying for a K-1 visa, you will need to earn gross income that the government considers stable. 

By USCIS standards, steady income includes that which you earn in or through the US, except for temporary or seasonal earnings. Earnings could include income from your job along with other income sources. For instance, these may include benefits through retirement, social security, Veterans Affairs (VA), and disability. Unemployment benefits don’t count as stable earnings unless the sponsor has gained employment with another job.

Stable income may also include earnings that apply to tax forms from the Internal Revenue Service (IRS), including interest income. Such income must be likely to provide consistent income in the long term. Otherwise, USCIS may doubt whether the sponsor is able to earn a living. 

Keep in mind that welfare benefits are not a form of stable income. In fact, if you receive welfare, you may not qualify for the K-1 visa. 

Earnings Come from US-Based Sources

To qualify for the K-1 visa, you must be able to show that all of your income comes from the US. If you’re employed in another country and earning income from the nation’s government, this won’t count as stable earnings, according to USCIS. You may be able to qualify for the K-1 visa if you are earning money overseas via the US. For example, if you are a freelancer who lives abroad and receive income through an American company, this could count as stable income.

Joint Sponsorship

In some cases, you may be able to apply for a joint sponsorship if you are cannot meet the income requirement on your own. To do this, you would need to have someone else with stable income sponsor your fiancée with you. You may get help from one immediate family member who has sufficient income.

Tax Returns

The most important form of documentation to prove that you have stable income is a tax return. Specifically, you will need to be able to prove income using tax returns from recent years. USCIS may ask for tax returns from up to the previous three years. 

When sending your tax returns to USCIS through an embassy or consulate, the relevant form to use is Form 1040. You will need to send this form toward the end of processing before completion and approval of your K-1 visa application.

Assets That Replace Earnings

If you’re unable to meet the income requirements for a fiancée visa or apply for a joint sponsorship, you may wonder whether assets could qualify as earnings. You can use assets in place of earnings once you’ve married your fiancée and begin to sponsor permanent residence for him or her. Keep in mind, though, that you cannot do so when applying for the K-1 visa.

What Happens if You Don’t Meet the Income Requirements for a Fiancée Visa?

In general, it’s best for you to meet the income requirements that USCIS has in place when trying to obtain a K-1 visa. Even if you qualify for a joint sponsorship, you may want to explore other options. If you don’t qualify, you may have some alternatives available to help sponsor your fiancée.

If you need some help determining which action to take when sponsoring a fiancée, fiancée visa attorneys could provide some guidance. One potential alternative that might work in some cases is a marriage-based immigrant visa.

Consular Processing

For individuals who don’t qualify for the K-1 visa and want to get married prior to entering the US, it may be possible to obtain a marriage-based visa via consular processing. Consular processing may enable your spouse to avoid the temporary visa process and get a green card from a U.S. consulate in another country. 

While this might be a suitable alternative, the process will take considerably longer than the process experienced with K-1 visas. Typically, the process takes up to one year. The processing period may differ depending on the specific circumstances involved.

The wait may be worth it based on what it can achieve for your spouse. With the help of consular processing, your spouse would be able to live and work in the U.S. as a legal permanent resident. The spouse wouldn’t even need an employment authorization document (EAD) to gain employment. Also, your spouse will have the ability to travel across the globe with a green card, without any need for advance parole. 

If you opt for consular processing instead of the K-1 visa, you would need to start by filing Form I-130, which is the Petition for Alien Relative. The next steps will involve filing either form DS-260 or DS-230, which will go to the US Department of State. You will then comply with requests from the National Visa Center (NVC), most of which will entail supplying the agency with sufficient documentation. This documentation will need to prove a legitimate relationship with your spouse. It could include marriage certificates, passports and passport photos, and an affidavit of support, among other pertinent documents.

You and your spouse will also need to undergo a visa interview, be up-to-date on your vaccinations, and your spouse will require a proper medical exam from a qualifying doctor. 

Obtaining a K-1 Visa Upon Qualification

If applicants do qualify for a fiancée visa, they can take the following steps to complete the application process:

File Form I-219F

The first step of the process involves filing Form I-129F. This form will include proof that the sponsor is an American citizen. It also asks for proof of your relationship with your fiancée through different documents. You will also need to pay a filing fee.

File Form DS-160

The next step in the process, once the case goes to the National Visa Center, entails filing Form DS-160. You will do this upon receiving notice from the NVC. Such notices typically go out to applicants within around 30 days of the USCIS’s approval of Form I-129F. The NVC notice will detail the location and date of your interview. You will file Form DS-160 through the Department of State to apply for the actual visa.

Attend the Interview

The penultimate step is to go through the interview. Prepare beforehand and ensure you have all necessary documentation to support your fiancée’s application. A consular officer will conduct the interview and likely make a decision regarding your visa on the same day.

Enter the US

The final step is to enter the country and get married. You have a limited amount of time to get married, making it important to take the necessary steps to get an immigrant fiancée to the wedding on time.

If you don’t meet the income requirements for a fiancée visa, there are other options available in many cases.