If you are a U.S. citizen engaged to a foreign citizen and you are considering marriage, the K-1 visa is most likely your best choice for bringing your fiance(e) to the U.S. to live permanently with you (in fact, it was created exactly for persons in your situation). The K-1 visa allows you to invite your fiance(e) to America for a period of 90 days, during which time your fiance(e) must either marry you or return to his/her home country. No extensions of the time period are permitted. You and your fiance(e) are not required to marry if things don’t work out according to your expectations. If you do not marry your fiance(e), you will not be precluded from making a future Fiancee Visa application (although you will have to file an IMBRA waiver if you want to file within two years of the first petition’s approval or have previously filed two or more prior K-1 petitions). Your fiancee will not be precluded from receiving another visa in the future.
Permanent residents of the United States are not eligible to file for a K-1 visa.
In order to qualify for a K-1 Fiance(e) Visa, you must meet the following main requirements:
- • You are a U.S. citizen
- • You have met your fiance(e) within the previous two years
- • You and your fiance(e) are both legally free to marry
- • You and your fiance(e) both have a serious intention to marry within 90 days of your fiance(e)’s arrival in America.
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.
To begin the K-1 Fiance(e) Visa process, the petitioner must first submit an application to the USCIS. The petitioner and beneficiary will need to file numerous forms and documents with the USCIS in order to prove that they qualify for the K1 Fiance(e) Visa. The waiting time for the USCIS to approve a K-1 visa can be anywhere from two weeks to seven months, depending on the backlog of similar cases pending approval in the USCIS Regional Center. The case can be further delayed by an error in the petition, 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”).
Once approval has been received, the case is transferred to the Department of State’s National Visa Center (NVC) where a background check is begun on the fiance(e). The NVC then forwards the case file to the U.S. Embassy or Consulate having jurisdiction over the fiance(e)’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 fiance(e) will be instructed to undergo a medical examination at a designated local clinic, and to appear at the U.S. Embassy for presentation of several new forms and numerous supporting documents and to undergo an interview with an Embassy Consular Official. If the paperwork is all correct, and there are no problems in the interview, the visa will usually be issued in the week following the interview. The fiance(e) is then free to travel immediately and directly to the United States.
The K-1 visa is a highly reliable visa if done correctly. Nonetheless, about half of fiance(e)s fail to receive their visa on the day of interview (our firm has a 97% success rate for first day issuance, and 100% eventual success). Failure to issue the visa on the day of the interview can lead to lengthy and grueling delays (we have to go through it every once in a while ourselves, and, believe us, it is not pleasant), and possible denial or return of the petition to the USCIS for “administrative review” and possible revocation. Some of the more common issues that can lead, alone or in combination with other problems, to a denial/failure to issue are:
- 1. Missing documents
- 2. Incorrect paperwork
- 3. Insufficient income/savings of the U.S. citizen sponsor
- 4. Very large age difference between the couple
- 5. Fiance(e) can not obtain written consent from the ex-spouse for their child to leave the country
- 6. Poor English skills of fiance(e)
- 7. Couple hasn’t spent enough time together in person
- 8. Couple lacks sufficient evidence of recent day-to-day contact
- 9. Fiance(e) interviews poorly and the consul doubts that there is a bona fide relationship with the U.S. citizen
- 10. Fiance(e) has relatives or friends in the U.S. who seem to be taking too large a role in match-making
- 11. Fiance(e) was previously in the U.S. and overstayed the visa
- 12. The U.S. citizen has previously sponsored a foreign national for a green card and the U.S. citizen can not prove that the foreign citizen maintained lawful status
- 13. Fiance(e) has a criminal record
- 14. Fiance(e) has a serious, contagious illness (such as AIDS, tuberculosis, etc.)
- 15. Fiance(e) commits a misrepresentation during the interview (or so it seems to the interviewing officer)
- 16. Petition includes a document that is deemed to be fraudulent
As a general question, the first five problems listed above will result in the Embassy holding the case to see if the petitioner and/or beneficiary can cure the problem with additional documentation or through a second interview. If they fail to do so, the case is sent back to the USCIS. Delays in such cases typically are measured in weeks rather than in months.
Problems 6 through 10 above, which controvert the genuineness of the relationship between the couple, are typically sent back to the USCIS for administrative review/revocation or are sent to the Embassy’s Anti-Fraud Unit, which will assign an investigator to go to the fiancee’s home town and interview friends and neighbors to get a better idea of whether the couple’s engagement is for real. Delays in such cases typically exceed six months.
Problems 11 through 16 above involve issues that render the beneficiary excludible from the U.S. as a matter of law. In some cases, however, the Embassy will entertain an argument on the facts that the beneficiary is not excludible (we have done this, for example, with clients that had a criminal conviction that we were able to convince the Embassy was not a crime of “moral turpitude” as defined by the U.S. Immigration and Nationality Act). If the Embassy decides that the beneficiary is excludible, an “extreme hardship” waiver is usually available, although such waivers can be difficult to obtain. The typical I-601 Application for an “extreme hardship” waiver takes four to six months to process.
A Fiance(e) Visa is a temporary visa, but one that can be readily converted to a permanent visa after the marriage occurs in the U.S. Once married, the U.S. citizen can obtain conditional permanent residence status for his/her new spouse by filing an I-485 petition with the U.S. government. Several months later (the length of the wait varies considerably on where you live in the country) the couple is called into the local USCIS office for an interview, and a two year “conditional” permanent residence card is issued shortly thereafter. One year and nine months after the conditional permanent residence card was issued by the USCIS, the couple may apply to remove the condition and receive a 10 year permanent residence card. Three years after the foreign born spouse received her first green card, she is eligible for citizenship.
1. Can I marry my fiancee overseas and still bring her on a K-1 visa?
No. K-1 visas are available only to persons who are planning to be married in the U.S. after receiving the K-1 visa. If the marriage occurs, you will have to file an I-130 Relative Visa petition 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.
2. My fiancee 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 fiancee’s K-1 visa?
No. The K-1 non-immigrant status can neither be extended nor changed. If you don’t get married within 90 days of the K-1 status validity period, your fiancee will have to leave the US. This is a very strict law in US immigration and there are no exceptions.
3. My fiancee 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?
Yes, but if you want to apply again within two years of the first petition’s approval, you will have to file for a waiver of the provisions of the International Marriage Broker Regulation Act of 2005 (IMBRA). Your fiancee must also be prepared to explain to a consular officer why your relationship didn’t work out the first time and why you both are certain 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 U.S. So the case to show “intention to marry” has to be particularly strong.
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?
No. You can’t avoid the sponsorship requirements. However, it’s possible to find a co-sponsor to help with you with this problem. The co-sponsor must be able to meet all the government’s financial and document requirements just as though he or she were the sole sponsor. You must submit all your forms and documents as well, even if they show a low level of income.
5. When I marry my fiancee while she’s in the U.S. on the K-1 visa, will she have to return home after the marriage?
No. Your wife will not have to leave the U.S. You will, however, have to apply for adjustment of status to permanent residency for your new wife so that she can lawfully remain in the US.
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 fiancee visa. Can I do this?
Perhaps. Congress passed new rules effective March 6, 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 fiancee. 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. You also must provide documentary proof that your ex-wife either left the U.S. or lawfully adjusted her status to permanent residence.
7. My fiancee has been denied a B1/B2 visitor visa for the U.S. before. Will that affect our current K-1 visa petition?
In most cases, no. If your fiancee did not misrepresent any material fact during the B1/B2 visa interview, she will still be eligible for a K-1 Visa.
8. My fiancee has a valid B1/B2 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?
Yes. She is allowed to enter, but she may face difficulties entering 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 to show “dual intent” – to stay for a short period on the current B1/B2 visa even though she intends to eventually stay permanently in the US on the K-1 visa. It’s a tricky situation – especially since many immigration officers falsely assume that the pending K-1 visa prevents B1/B2 entry – but we have helped many people get through this situation successfully.
9. My fiancee 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?
No, it should not. If an officer’s decision was based solely on the fact that your fiancee had used her visa to spend the most of her time in the US, then it won’t substantially impact your K-1 petition.
10. My fiancee has been to the U.S. as an exchange J-1 student before and is a subject of 2 years home residency requirement. Is there any chance to bring her to the U.S. on a K-1 fiancee visa without waiting until the above requirement is fulfilled?
Yes. However, the chances are very slim indeed as this type of waiver is very difficult to obtain.
11. My fiancee has overstayed her visa before. Is she eligible to come to the U.S. on the K-1 fiancee visa?
It depends. If she overstayed her prior visa by over a year, she is barred from re-entering 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 re-entering the U.S. for three years (again, an “extreme hardship” waiver is possible). Shorter overstays will cause less severe problems, and can often be overcome.
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?
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.” 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.