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The ABC’S Of Immigration: The K-1 Visa for Fiancé(e)s of U.S. Citizens

The K-1 visa has made the process of marrying a foreign national in the US easier than ever before.   This visa 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 would then have to wait abroad for the application to be processed.

 

 

What is a K-1 visa?

 

The K-1 visa enables US Citizens to bring their foreign fiancé(e)s to the United States in order to get married and pursue permanent residency.

 

 

What is the first step I must take in order to bring my fiancé(e) to the US to get married with a K-1 Visa?

 

Provided you are a US Citizen, you begin by filing an I-129F, petition for fiancé(e) visa with the regional service center of US Citizenship and Immigration Services (USCIS) that covers the state where you live. Approval is required before the fiancé(e) may apply for the K-1 visa. Approval timelines vary among the service centers and range anywhere from one to eight months. After the I-129F has been approved, the fiancé(e) has 4 months from the time the I-129F was approved to obtain the K-1 Visa at the US Consulate in the foreign country.  If required, a consular officer this time period can be extended. The visa application process is generally similar in all countries, although each Consulate will vary a bit in their requirements.

 

What is required in order to obtain a K-1 visa?

 

There are three basic requirements to receive a K-1 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

 

What if I didn't meet my fiancé(e) within the past two years?

 

As originally adopted, the K-1 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, the application must show 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 re-file the petition, and the new application will not suffer because of the denial of the first. 

 

How can I document proof of a relationship with my fiancé(e)?

 

While there is no minimum, using as many of these items as possible will make it less likely that you will receive a Request for Evidence (RFE) from an USCIS Service Center. 

 

  • Copies of all airline-boarding passes, train passes, itineraries, hotel receipts, passport stamps (make sure you can read the dates on the stamps), and other documentary evidence that you have met your fiancé(e) within the last two years. You may want to highlight the relevant dates and locations on the copies (to make the adjudication easier) for the person reviewing your file.
  • Color photos of you and your fiancé(e). Make sure you write your names, date, and location on the back of every photo. Place photos in a plastic bag or photo sheet and label the sheet. Note that you may not receive originals of photo's back. A good alternative is to make color photocopies of the photos and then put the relevant information underneath the pictures.
  • Copies of phone bills, cell phone bills, emails (you can edit personal info with a marker), letters (edit personal info also), stamps on the letters (to document the date they were sent), and other written documentary proof. Provide a reasonable amount; two to four of each type. Pick a range of dates up to and including the present.

 

 

Who determines whether or not the petition is approved?

 

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.

 

For how long is the petition valid?

 

Once approved, the petition remains valid for four months.  In the event that the alien does not enter the US in that period, the petition 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. 

 

How does the State Department determine whether or not my fiancé(e) will receive a K-1 visa?

 

In determining whether to issue the K-1 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-1 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 age sixteen
  • Medical exam
  • Evidence that they will not become a public charge
  • Evidence of termination of previous marriages, if not submitted with the petition application

 

Remember that if any of these documents are in any other language, they must first be translated into English.

 

What happens after the State Department receives the required documents?

 

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.  The beneficiary is given a copy of their petition and additional entry paperwork 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.

 

For how long is the K-1 visa valid?

 

The visa is given along with a sealed envelope of documents, which must be given to the USCIS (INS) officer when entering the US. The visa is good for 6 months. The fiancé(e) is allowed to enter the US once with the visa, with the purpose of getting married. The fiancé(e) is not allowed to travel freely into and out of the US with the visa, it is good for one entry only. If there is a K2 visa involved, the K2 may enter up to a year after the K-1.

 

Once the fiancé(e) arrives in the US, how long do we have until we must marry?

 

Once in the United States, you have 90 days to get married. 

 

What if the marriage does not occur?

 

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.

 

What steps must be taken after the marriage occurs?

 

Immediately after marriage, you must apply for an Adjustment of Status, Form I-485, to become a permanent resident. You will also apply for an Employment Authorization Document (EAD), and advance parole in case you want to travel outside the United States and re-enter before getting your green card.  After that, you may wait a year or more to be interviewed for "Conditional" Permanent Resident status (green card). After two more years, you apply to have the "Conditional" status removed.  Only after all these steps can you apply to become an American citizen (naturalization).

 

If the couple does not marry, can the immigrant remain in the U.S.?

 

It is EXTREMELY difficult for a person to remain in the US if the marriage does not take place. And the marriage must be to the K-1 petitioner and not to another US citizen. K-1 visa holders who fail to follow through with marrying the K-1 petitioner and getting permanent residency through that marriage should plan on leaving the US and reentering on a new visa if they seek to stay in the US.

 

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