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 IMMIGRATION:
K-1 Fiancé(e) Visas
K-1 Visas are visas for foreign fiancé(e)s, also commonly called
a "Fiancé(e) Visa". K-1 visas are issued to foreign nationals
who are outside the USA, who become engaged to a U.S. citizen, and
who have the intent of being married within 90 days after they arrive
in the United States.
Fiancé(e) visas do not apply to people who are already married,
who would file a Relative Petition
and apply for a Permanent Residence Visa directly at the U.S. Consulate.
The U.S. citizen must file a petition with the U.S. Citizenship
& Immigration Services on behalf of the fiancé(e), allong with
all required documentation to prove the engagement is not a fraudulent
attempt to cirumvent U.S. immigtration laws. The documentation mus
prove the U.S. citizen and the alien fiancé(e) have personally met,
and that they have a sufficient personal relationship upon which
to base a proposal of marriage. Consular Visa Officers have wide
discretion in reviewing the evidence and deciding whether or not
to issue a K-1 visa. If a K-1 Visa is denied, the U.S. citizen can
always go to the country in which the fiancé(e) is residing, marry
there, and then file a Relative Petition.
After entry into the United States, the K-1 visa holder may
marry only the U.S. citizen who filed the petition on their behalf.
If the marriage does not take place, the K-1 alien must leave the
United States. It is not possible to extend the K-1 visa. It is
not possible to marry another U.S. citizen to stay in the United
States. It is not possible to change to another nonimmigrant status.
That is the law.
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The K-1 Fiancé/Fiancee Visa
Important K-1 Factors:
-
The K-1 Visa allows you to
invite your fiancée to America
for a period of 90 days, during which time your fiancee
must
either marry you or return to her home country.
There are no exceptions to this rule
-
No extensions of the time
period are permitted.
There are no exceptions to this rule
-
You and your fiancee are not
required to marry if things
don’t work out according to your expectations.
There are no exceptions to this rule.
-
If you do not marry your fiancee,
you will not be precluded
from making a future Fiancee Visa application (although
a
second fiancee petition will be more challenging) and your
fiancee will not be precluded from receiving another visa
in the future.
Visa Status:
A Fiancee Visa is a temporary nonimmigrant
visa, but one that can be readily converted to permanence(Green
Card) after the marriage occurs in the U.S..
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Criteria for K-1 Visa Approval:
In order to qualify for a Fiancee
Visa, you must meet
the following main requirements:
- You are a U.S. citizen (there is no comparable
visa for
permanent residents);
- You and your fiancee are both legally
free to marry;
- You and your fiancee both have a serious
intention to marry
within 90 days of your fiancee’s arrival in the United States
of America;
- You have been physically with your fiancé
within the previous two years.
Exceptions:
There is a provision in the law that
may exempt the petitioner from the meeting requirement "if it is
established that compliance would result in extreme hardship to
the petitioner or that compliance would violate strict and long-established
customs of the K-1 beneficiary's foreign culture or social practice,
as where marriages are traditionally arranged by the parents of
the contracting parties and the prospective bride and groom are
prohibited from meeting subsequent to the arrangement and prior
to the wedding day." (INA § 214.2(k)(2)).
Unfortunately, such waivers are very rarely granted
by the USCIS. The "extreme hardship" exception has been interpreted
by the USCIS to mean something very close to "impossible". It generally
is available only to people who are so disabled that they can't
fly at all. As for the second grounds for a waiver, very few people
qualify for this exception, and those that do often have a difficult
time proving it to the government's satisfaction.
The fiancé visa process
is in three phases:
1. U.S. Citizenship and Immigration Services (USCIS)
Phase:
The petitioner must first submit a
properly completed application to the USCIS. The
petitioner and fiancee will need to file numerous other documents
with the USCIS in order to prove that the petitioner and fiancee
qualify for the K-1 Fiancee Visa.
USCIS Processing Times:
The waiting time for the USCIS to approve a
K1 visa can be anywhere from thirty days to seven or eight months,
depending on the backlog of similar cases pending approval in
the USCIS Service Center. The case can be further delayed by an
error in the petition, or by not submitting the required documentation,
which typically doubles the normal waiting time for visa approval.
An error in the petition will cause the USCIS
to send the petitioner a Request For Additional Evidence ("RFE").
The USCIS send out literally thousands of RFEs per year. Of course,
every petitioner who filed the incorrect petitions had read the
USCIS instructions and thought he had done everything correctly.
Unfortunately, these cases are rarely as simple as they appear
at first glance. Our firm uses our experience with having filed
many successful K-1 petitions.
2. U.S. Embassy/Consulate Phase:
Once approval of the K-1 visa has been received,
the case is transferred to the Department of State's National Visa
Center, where a background check is begun on the fiancee. The NVC
then forwards the case file to the U.S. Embassy or Consulate having
jurisdiction over the fiancee's petition. Once the documents have
been received by the Embassy, and the State Department’s background
check on the fiancee has been concluded, the fiancee will be instructed
to undergo a medical examination at a designated local clinic, and
to appear at the U.S. Embassy or Consulate for presentation of several
new forms and numerous supporting documents, and to undergo an interview
with a Consular Official.
If all the paperwork is all correct, and there
are no problems in the interview, the Finace Visa will be issued
on the same day as the interview or, in some embassies, in the week
or so following the interview. The fiancee is then free to travel
immediately and directly to the United States.
3. The Marriage and Application for Permanent
Residence in the United States:
The marriage must occur and an application for permanent residence
must be filed by the U.S. Citizenship & Immigration Services
(CIS) within ninety (90) days after the fiance's arrival in the
United States. There will be an interview at the local office of
CIS and if approved, permanent residence will be issued at the interview.
The "Green Card" will be mailed to the new permanent resident
shortly after the interview.
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K-1 Visa Frequently Asked Questions
(FAQ):
Question 1. Can I marry
my fiancée overseas and still bring her to the US on a K-1 visa?
Answer 1. No. K-1 visas
are available only to persons who are planning to be married after
the fiancee arrives in the United States. After the marriage occurs,
you will have to file an Application for Permanent Residence for
your spouse. The one exception to this rule is that if the marriage
was religious or social ceremony only, and the marriage wasn’t
registered with the local government, a K-1 visa may be issued.
However, if you are already married, you can file a Relative
Petition as the Spouse of a U.S. citizen. To speed the process,
you can also apply for a K-3 visa for
your sponse.
Question 2. My fiancée
is in the U.S. on the K-1 visa I obtained for her, but I’m not sure
I’m
ready to get married. Can I extend my fiancée’s K-1 visa?
Answer 2. No
- absolutely not. The K-1 nonimmigrant status can neither be extended
nor changed. If you don’t get married within 90 days of the K-1
status validity period, your fiancée will have to leave the US.
This is a very strict law in US immigration and there are no exceptions.
Question 3. My fiancée
was in the U.S. on the K-1 visa, but our relationships didn’t work
out
at the time and she went back to her home country. We have been
in touch since then and now
want to start the K-1 process again. Can I still petition for her?
Answer 3. Yes. The second
visa will be more difficult to obtain, though. Your fiancée must
be prepared to explain to an interviewing officer in the Consulate
why your relationship didn’t work out the first time and why you
both think that it will lead to marriage the second time. It must
not appear to the Embassy that you are using the K-1 visa as a
way simply to bring your girlfriend on trips to the US. So the
case to show “intention to marry” has to be particularly strong.
Question 4. My income level
is too low to qualify as a sponsor under the government’s rules.
Is there any way to avoid this requirement?
Answer 4. No. You can’t
avoid the sponsorship requirements. However, it’s possible to
use a joint-sponsor to help with you with this problem. The joint-sponsor
must be able to meet all the government’s financial requirements,
just as though they were the sole sponsor. The primary sponsor
must alsosubmit all support forms and documents as well, even
if they show a low level of income.
Question 5. When I marry
my fiancée while she’s in the US on the K-1 visa, will she have
to return home after the marriage in order to complete any immigration
papers?
Answer 5.
No. Your spouse will not have to leave the U.S. You will,
however, have to apply for a Relative Petition and adjustment
of status to permanent residence for your new spouse so that she
can lawfully remain in the US.
Question 6. I sponsored
my ex-wife’s K-1 visa for the U.S. and she eventually became a permanent
resident. Unfortunately, our marriage didn’t work out and we were
divorced. I have recently met a lady outside the U.S. and would
like to bring her to America on the K-1 fiancée visa. Can I do this?
Answer 6. Perhaps. Congress
passed new rules effective March 5, 2006 that state that a petitioner
must wait two years from the filing of a prior K-1 visa until
a K-1 visa may be issued to a second fiancée. If you can’t wait,
a waiver based “extreme hardship” may be possible, although not
if a petitioner has a record of violent criminal offenses. If
you get by these hurdles, you will nonetheless have to convince
the Embassy that your previous marriage was not a “sham” marriage
and that your ex-wife did not reside illegally in the U.S.
Question 7. My fiancée
has been denied a B-1/B-2 visitor visa for the U.S. before.
Will that affect our current K-1 visa petition?
Answer 7. Typically,
no. If your fiancée did not misrepresent any material fact during
the B-1/B-2 visa interview, she will still be eligible for a K-1
Visa.
Question 8. My fiancée
has a valid B-1/B-2 visitor visa for the US. Is she allowed to come
to
America while my K-1 visa petition for her is pending with the U.S.
immigration authorities?
Answer 8. Yes. She is
allowed to enter, but she may face difficulty because she has
to convince the immigration officials in the airport that she
has no intentions to stay in the
U.S. permanently. She has a “dual intent” problem - that is to
stay for a short period on
the current B-1/B-2 visa even though she intends to eventually
stay permanently in the
US on the K-1 visa. It’s a trick
situation – especially since many immigration officers
erroneously assume that the pending K-1 visa prevents B-1/B-2
entry.
Question 9. My fiancée
was denied entry to the United States some time ago. An immigration
officer at the port-of-entry said that the history of her previous
visits showed that she had been spending the most of time in America
rather than in her home country. Will that affect our pending K-1
visa petition?
Answer 9. No, it should
not. If an officer’s decision was based solely on the fact that
your fiancée had used her visa to spend the most of her time in
the US, then it won’t affect your current K-1 visa petition.
Question 10. My fiancée
has been to the U.S. as an exchange J-1 student before and is a
subject
of the 2-year home residency requirement. Is there any chance to
bring her to the U.S. on a K-1 fiancée visa without waiting until
the above requirement is fulfilled?
Answer 10. Yes, she can
apply for a waiver, however, the chances are very slim because
this type of waiver is very difficult to obtain.
Question 11. My fiancée
has overstayed her visa before. Is she eligible to come to the U.S.
on the
K-1 fiancée visa?
Answer 11. It depends.
If she overstayed her prior visa by over a year, she is barred
from reentering the U.S. for ten years (although an “extreme hardship”
waiver is possible). If she overstayed her prior visa by six months
to a year, she is barred from reentering the U.S. for three years.
Shorter overstays will cause less severe problems, and can often
be overcome.
Question 12. I have recently
met a lady online, but am unable to travel to her country. Is there
anything I can do to avoid this requirement?
Answer 12. Probably not.
There is a provision in the law that may exempt you from the meeting
requirement "if it is established that compliance would result
in extreme hardship to the petitioner or that compliance would
violate strict and long-established customs of the K-1 beneficiary's
foreign culture or social practice, as where marriages are traditionally
arranged by the parents of the contracting parties and the prospective
bride and groom are prohibited from meeting subsequent to the
arrangement and prior to the wedding day." Such waivers are very
rarely granted by the USCIS because the "extreme hardship" exception
has been interpreted by the USCIS to mean something very close
to "impossible". It generally is available only to people who
are so disabled that they can't fly at all. As for the second
grounds for a waiver, very few people qualify for this exception,
and those that do often have a difficult time proving it to the
government's satisfaction.
K-1 fiancé(e) visa applications are complex in
their requirements and documentation. Competent legal counsel should
be consulted before filing a K-1 Visa Application.
Please see our Contact
Page for our email address.
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