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 petition your fiance(e) to the United States 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. However, if there are circumstances in which prevented you from getting married within the 90 days (medical issues, delay with prenuptial agreement, etc.), you can get married after the 90-day period and then would need to file Form I-130 (Petition for Alien Relative), in addition to Form I-485 (Application to Adjust Status). You and your fiance(e) are not required to marry if for whatever reason either of you decide not to get married. If you do not marry your fiance(e), you will not be precluded from filing future K-1 fiancee visa applications. However, you will be required to file an IMBRA waiver if you file your next K-1 visa petition within two year of your first USCIS approval or have previously filed two or more prior K-1 petitions. There are several factors which will determine whether an IMBRA waiver would be approved (reason for the failure of the prior relationship, criminal history of U.S. citizen, etc.). Your fiancee will not be precluded from receiving another visa in the future.
Permanent residents of the United States are not eligible to file the K-1 visa petition. Only United States citizens are eligible to file K-1 visa petitions.
Criteria for Approval
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; and
- You and your fiance(e) both have a serious intention to marry within 90 days of your fiance(e)’s arrival in America.
Meeting Requirement: 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.
U.S. Citizenship and Immigration Services (USCIS) Phase
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 Form I-129F and supporting documents to USCIS in order to prove that they qualify for the K1 Fiance(e) Visa. There are certain mandatory supporting documents such as proof of citizenship for the American citizen, proof of termination of all prior marriages for both fiance(e)s, proof of intent to marry, etc. There are non-mandatory documents that the couple may submit, such as proof of communication, love letters, etc. However, fiance(e)s should keep in mind that not all evidence is good evidence and certain evidence could be damaging to the case. The processing time for the USCIS to approve a K-1 visa petition is usually between 4 to 6 months. The case can be further delayed by an error in the petition, which typically can delay the case by weeks or months. An error in the petition will cause USCIS to send the petitioner a Request for Additional Evidence (“RFE”).
U.S. Embassy / Consulate Phase
After USCIS approval, the case is transferred to the Department of State’s National Visa Center (NVC) where a background check is performed on the foreign citizen fiance(e), which usually takes about a month. Then, the NVC forwards the case file to the U.S. Embassy or Consulate having jurisdiction over the fiance(e)’s petition. If most foreign countries, there is usually only one U.S. Embassy or Consulate which processes K-1 visas. After the Embassy or Consulate receives the case file, the Embassy or Consulate will contact the petitioner and/or beneficiary with further instructions. The foreign fiance(e) must undergo a medical examination at a designated local clinic, appear at the U.S. Embassy or Consulate with several new forms and numerous supporting documents and undergo an interview with an American consular officer. If the paperwork is complete and there are no issues in the interview, the visa is usually issued within two weeks. The visa has a printed expiration date and the foreign fiance(e) must enter the United States on or before the expiration date. The 90-day marriage period begins on the entry date.
Possible Issues and Red Flags
If processed and handled correctly, the K-1 fiance(e) visa is a highly reliable visa. Nonetheless, quite a few fiance(e)s fail to receive their visa approval on the day of interview and receive an ultimate denial. Once the Embassy or Consulate denies a visa and returns the case back to USCIS, the denial cannot be appealed. Couples have the option to refile the K-1 visa petition or get married and file the spouse visa petition
Some of the most common issues, alone or in combination with other problems, that can result in a denial/failure to issue are:
- Missing documents
- Incorrect paperwork
- Insufficient income/savings of the U.S. citizen sponsor
- Very large age difference between the couple
- Foreign fiance(e) cannot obtain written consent from the ex-partner or court order for their child to leave the country
- Poor English skills of Foreign fiance(e)
- Couple hasn’t spent enough time together in person
- Couple lacks sufficient evidence of continuous communication
- Fiance(e) interviews poorly and the consul doubts that there is a bona fide relationship with the U.S. citizen
- Fiance(e) has relatives or friends in the U.S. who seem to be taking too large a role in match-making
- Fiance(e) was previously in the U.S. and overstayed the visa
- 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
- Fiance(e) has a criminal record
- Fiance(e) has a serious, contagious illness
- Fiance(e) commits a misrepresentation during the interview (or so it seems to the interviewing officer)
- Petition includes a document or information that is deemed to be fraudulent
Issues 1 to 5 listed above will usually result in the Embassy holding the case to see if the petitioner and/or beneficiary can cure the problem with additional documentation within a certain period of time or through a second interview. If they fail to do so, the case is denied and the case is sent back to USCIS.
Issues 6 to 10 listed above, which relate to the genuineness of the relationship, will usually result in visa denial and the case is sent back to USCIS.
Issues 11 to 16 listed above involve issues that render the beneficiary inadmissible from the United States, as a matter of law. In some cases, however, the Embassy or Consulate will entertain an argument on the facts that the beneficiary is not inadmissible. If the Embassy or Consulate decides that the beneficiary is inadmissible, the beneficiary may be eligible to file an “extreme hardship” waiver.
Visa Status in the USA
The K-1 fiance(e) visa is technically a non-immigrant visa. However, because it has most characteristics of an immigrant visa, it is pretty much treated like an immigrant visa and handled by the Immigrant Visa Unit of the Embassy or Consulate. Since the the K-1 fiance(e) visa is a non-immigrant visa, the foreign fiance(e) must apply for resident status by filing for adjustment of status (Form I-485) after getting married in the United States. Prior to May 15, 2018, the majority of K-1 visa applicants filing for adjustment of status were not required to attend an interview prior to receiving their green cards. As of May 15, 2018, USCIS requires all K-1 visa applicants filing for adjustment of status to attend an interview with their American spouses. The wait time for an adjustment of status interview can be 3 to 4 months in some USCIS offices, but can also be over a year in other USCIS offices. In 2018, U.S. Immigration and Customs Enforcement (ICE) has been contacting K-1 visa applicants by telephone and making home visits to confirm that the couple did get married within 90 days and did file for adjustment of status. By the time of the adjustment of status interview, most couple have been married for less than 2 years and the adjustment of status applicant will receive a 2-year conditional permanent resident card (also known as green card). Within 90 days prior to the expiration of the 2-year conditional card, the couple must apply for removal of conditions (Form I-751) to obtain the 10-year green card. Permanent residents who are married to American citizens, have been a legal permanent resident for three years and meets the other requirement are eligible to apply for citizenship (also known as naturalization).
1. Can I marry my fiancee overseas and still bring her on a K-1 visa?
No. K-1 visas are available only to fiance(e)s who are planning to be married in the U.S. after entering on the K-1 visa. If the marriage occurs, you will have to file an I-130 (Petition for Alien Relative) petition for your spouse. The one exception to this rule is that if the marriage was a non-legal marriage in the foreign country. In some foreign countries, a religious or social ceremony can constitute as a legal marriage. Also, although the ceremony may not constitute as a legal marriage, if the U.S. Embassy or Consulate becomes aware of the ceremony, you and your fiance(e) may be asked to provide proof that the ceremony was in-fact a non-legal marriage.
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 and uncertain why you will be ready to get married because of doubts in the relationship, your fiancee is required to leave the United States. However, if you and your fiancee did intend to get married within the 90 days, still want to get married, but there are circumstances in which prevented you from getting married within the 90 days (medical issues, delay with prenuptial agreement, etc.), you can get married after the 90-day period and then would need to file Form I-130 (Petition for Alien Relative), in addition to Form I-485 (Application to Adjust Status).
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 USCIS approval date, 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. You and your fiancee’s “intent to marry” have 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 (joint sponsor) to help with you with this problem. The co-sponsor must be a U.S. citizen or legal permanent resident and be able to meet all the government’s financial and document requirements just as though he or she was the sole sponsor. Even with a co-sponsor, you must also submit your Affidavit of Support and financial documents as well.
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. and should not leave the U.S. until she has received travel authorization (advance parole). If your wife leaves the U.S. before she receives travel authorization, her application for adjustment of status will be terminated, she will need to apply for a spouse visa and may possibly be subject to certain bars to the United States. When your wife apply for her adjustment of status application, she should also apply for employment authorization and travel authorization (advance parole). The processing time for the combo Employment Authorization and Travel Authorization Card usually takes about 4 to 6 months. The Employment Authorization and Travel Authorization Card is valid for 1 years and applicants use the combo card before receiving their green cards.
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, you must file a waiver. If a petitioner doesn’t have a record of violent criminal offenses, then the waiver is likely to be granted. Nonetheless, you have to convince the Embassy that your previous marriage was not a “sham” marriage. You should have 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 and did not submit any fraudulent document 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 at 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. She can apply for a waiver, but waivers can be time consuming and 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.