K1 Visas and I-601 Waivers: Is Waiver Approval Binding at Adjustment?

The K-1 Fiancee Visa was promulgated by the US Congress in an effort to provide a legal method whereby alien fiancees could travel to the USA in order to meet their American loved one. The main advantage of this type of family visa is the fast processing time compared to American marriage visas. However, this type of travel document requires the foreign fiancee to adjust status once lawfully present in the USA. The adjustment process usually takes anywhere from 3 to 6 months.

An I-601 waiver was created for those who have previously been found inadmissible to the United States due to one of the legal grounds of inadmissibility found in the relevant provisions of the American Immigration and Nationality Act. In Thailand, two of the most common grounds of inadmissibility are the result of a factual finding that the alien fiance (or fiancee) engaged in prostitution within 10 years prior to the application's submission or a finding that the alien fiance (or fiancee) overstayed in the United States and accrued unlawful presence while in the US on a prior visa.

Many inquire: should a foreign fiancee be approved for one of the above noted waivers of inadmissibility, then she should not need to revisit that issue again? The short answer: no. After an I-601 waiver application is approved the decision is binding and should be respected by subsequent USCIS officers and adjudicators. Therefore, if the local Office of the United States Citizenship and Immigration Service (USCIS) in Bangkok approves an I-601 waiver application, then that holding, based upon those unique and specific facts, will be respected by other USCIS offices adjudicating later applications that are connected to the alien's presence in the United States of America.

A common example of how this could transpire: a Thai fiancee is issued a denial by a Consular Officer at the US Embassy in Bangkok for a K-1 visa based upon a finding that a legal ground of inadmissibility exists. Pursuant to notice that a waiver will be sought, the file is then sent to the USCIS Bangkok office. Should the I-601 waiver application receive approval, then the case file will be placed back with the Consulate at the American Embassy. The American Consulate should then issue the K-1 visa, and the applicant will travel to the United States, gain lawful admission, marry the American Citizen fiance, and submit an adjustment of status application.

In this situation, the waiver that was adjudicated previously ought to be upheld during the adjustment of status process and thus the matter will likely not be re-opened. An often overlooked advantage of seeking a waiver abroad is that this method can provide insight regarding future phases of the process and might also be a boon because sensitive waiver issues are dealt with in a jurisdiction other than the one in which the American Citizen maintains a domicile.
Ben Hart

Benjamin W. Hart is a licensed attorney from the United States of America and Member of the American Immigration Lawyers Association. He currently acts as Managing Director of Integrity Legal (Thailand) Co. Ltd. Contact them at: 1-877-231-7533, +66 (0)2-266-3698, or info@integrity-legal.com. For more information please see: K1 visa requirements or Fiance visa.

Source: ArticlesBase.com