IMMIGRATION: K-1 Fiancé(e) Visas

K-1 Visas are visas for foreign fiance(e)s, also commonly called a "Fiance(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.

Fiance(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 fiance(e), allong with all required documentation to prove the engagement is not a fraudulent attempt to circumvent U.S. immigtration laws. The documentation mus prove the U.S. citizen and the alien fiance(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:

      1. 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

      2. No extensions of the time period are permitted.
        There are no exceptions to this rule.

      3. 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.

      4. 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:

      1. You are a U.S. citizen (there is no comparable visa for
        permanent residents);
      2. You and your fiancee are both legally free to marry;
      3. 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;
      4. 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 am not sure I am
ready to get married. Can I extend my K-1 visa?

Answer 2. No - absolutely not. The K-1 nonimmigrant status can neither be extended nor changed. If you do not get married within 90 days of the K-1 status validity period, your fiance(e) 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 did not work out
at the time and he/she went back to his/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 not avoid the sponsorship requirements. However, it is 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 fiancĂ©e while he or she is 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 did not 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 fiance(e) 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 fiance(e). If you cannot wait, a waiver based on 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 shammarriage and that your ex-wife did not reside illegally in the U.S.

Question 7. My fiance(e) 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 fiance(e) 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 intentť 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 is a tricky situation, especially since many immigration officers
erroneously assume that the pending K-1 visa prevents B-1/B-2 entry.

Question 9. My fiance(e)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 fiance(e) 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 fiance(e) 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 fiance(e) 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 fiance(e) has overstayed her visa before. Is she eligible to come to the U.S. on the K-1 fiance(e) 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 fiance(e) visa applications are complex in their requirements and documentation. Competent legal counsel should be consulted before filing a K-1 Visa Application.


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