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ResourcesVisa & Immigration LawUS Immigration LawNew Factors for Adjustment of Status From a K-1 Fiancée Visa

New Factors for Adjustment of Status From a K-1 Fiancée Visa

Transcript of the above video:

As the title of this video suggests, we are discussing K-1 Fiancé Visas and adjustment of status and possible new protocols associated with adjusting status; new protocols from a policy standpoint. 

So first of all, for those who are unaware, those who enter the United States with a K-1 Visa are only allowed to temporarily remain in the United States without taking further action. So if they go ahead and marry their fiancée and file for adjustment of status then presumably if they are approved for adjustment of status and that is the process whereby somebody goes from a K-1 Visa over to an I-551 stamp or lawful permanent residence sometimes referred to as a Green Card, that is how that person makes that transition from K-1 fiancé, get married and then become a green card holder based upon their marriage. The adjustment of status process is the process for doing that. 

In a recent policy alert from USCIS dated November 17th, 2020, the following was noted under background, well first of all purpose. Let's start at the beginning. "Subject: the use of discretion for adjustment of status. Purpose: US Citizenship and Immigration Services is updating existing policy guidance in the USCIS policy manual regarding the discretionary factors to consider in adjudications of adjustment of status applications." Quoting further: "For adjustment of status, the applicant has the burden of demonstrating eligibility including that a favorable exercise of discretion is warranted. If the applicant otherwise establishes eligibility and USCIS finds the positive discretionary factors in a particular case outweigh the negative," that is important, this balancing act, "the officer should exercise favorable discretion and approve the adjustment application. Conversely," always a catch, quoting further: "if the negative factors outweigh the positive factors, an exercise of discretion to deny is appropriate. USCIS considers the totality of circumstances which may include factors such as an applicant's conduct, character, family or other lawful ties to the United States, Immigration status and history or any other humanitarian concerns to determine whether the applicant warrants a favorable exercise of discretion." I always get a little nervous anytime they create a balancing analysis. So for example, we see this in the analysis of what is called section 214b of the Immigration Nationality Act as it pertains to Tourist Visa applications. You have to show strong ties to your home country and weak ties to the United States. 

What I don't like in this new guideline is the notion of the negative factors somehow outweighing the positive factors especially in the context of something as elusive as conduct, character, family. Again what that exactly means in practice remains to be seen but it sounds rather ominous to me in the context of somebody looking to adjust their status in that you are looking at very sort of amorphous concepts for making determinations about approving someone's application to adjust. 

So again we will make further videos on this channel as the situation progresses but I think this is a major development especially for those who are looking to adjust status from a K-1 Visa in the United States.