< back
 
 
THE ABC’S OF IMMIGRATION – K VISAS FOR FIANCES AND FIANCEES
The K visa, given to fiancés and fiancées of US citizens to come to the US to marry is a surprisingly recent development, appearing only in 1970.  Before then, there were only two options for a US citizen to marry a foreign national.  The foreign national could try to get a visitor visa, often a very difficult proposition because the pending marriage made it impossible to prove nonimmigrant intent.  The second option was for the marriage to occur in the foreign country and for the US citizen to file an immigrant visa petition for their spouse, who must wait abroad for it to be processed.  The K visa has made the process of marrying a foreign national in the US much easier. 
There are three basic requirements to receive a K visa: 
The parties must have met in person within the past two years (in some cases this requirement can be waived) 
They must have a good faith intention to marry 
They must be legally able and willing to get married within 90 days of the alien’s arrival in the US 
As originally adopted, the K visa had no personal meeting requirement.  It was added in 1986 as part of the Immigration Marriage Fraud Amendments.  The requirement can be waived in some cases.  To obtain a waiver it must be shown that complying with the requirement would result in extreme hardship to the US citizen, or that complying would violate traditional customs in the alien’s home country.  This second method of obtaining a waiver will be strictly scrutinized to ensure there is no attempt to avoid application of immigration laws.  In the event an application is denied because of failure to satisfy the personal meeting requirement, the parties are free to meet and refile, and the new application will not suffer because of the denial of the first.  
The application is filed at the INS Service Center with jurisdiction over the place where the US citizen lives.  The alien’s minor children should be included on the application, since they will be given derivative status and allowed to enter the US with their parent.  The application must include proof of the petitioner’s US citizenship and proof that each party is legally able to marry (e.g divorce decrees).  It is also wise to submit evidence of marriage plans. 
Once approved, the petition remains valid for four months.  In the event that the alien does not enter the US in that period, in can be revalidated by either an INS district officer or a State Department consular officer for another four-month period, so long as the parties are still free to marry and intend to marry.  
In determining whether to issue the K visa, the State Department approaches the applicant like they are applying for an immigrant visa.  They must pass a medical exam and not be subject to any grounds of inadmissibility.  For example, people who have had a J visa and are subject to the two-year home residency requirement are not eligible for a K visa until serving the residency requirement or having it waived.  Also, the State Department requires the following documents to be submitted: 
A valid passport 
Birth certificate 
Police certificates from each place the alien has lived since 16 
Medical exam 
Evidence that they will not become a public charge 
Evidence of termination of previous marriages, if not submitted with the petition application 
After it receives these documents, the Consulate will conduct a background investigation and then schedule an interview.  If the interview is successful, the beneficiary will be issued a visa on the spot at no charge.  The beneficiary is given a copy of their petition in a sealed envelope to present at the port of entry.  The alien will be admitted for 90 days, during which time they are authorized to accept employment in the US.  Aliens admitted in K-1 status are not allowed to seek an extension of status, or to change to any other nonimmigrant classification.  During the 90-day period of admission, the alien must marry the US citizen petitioner.  After the marriage, the US citizen spouse may file an application for adjustment of status for the alien spouse.  One note of caution – if one does not marry quickly and apply for adjustment of status, there may be a gap between the work authorization received at entry and the work authorization granted after applying for adjustment of status. 
If the marriage does not occur, the alien must leave the US within their 90-day period of authorized admission.  If they fail to leave within this time, they become subject to deportation.