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Fiancé(e) (K-1) Visa Background
In almost every case, the best visa for a U.S. citizen considering marriage to a foreigner is the "K-1" Fiancé(e) Visa. The K-1 Visa allows you to invite your fiancé(e) to America for a period of 90 days, during which time your fiancé(e) must either marry you or return to her home country. No extensions of the time period are permitted. You and your fiancé(e) are not required to marry if things don't work out according to your expectations. If you do not marry your fiancé(e), you will not be precluded from making a future Fiancée Visa application (although a second fiancé petition will be a more challenging proposition). Your fiancé(e) similarly will not be precluded from receiving another visa in the future. Visa Status
A Fiancé(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. The fiancé(e) obtains conditional permanent residence status by filing an I-485 petition with the U.S. government. In a few months to two years, depending on the backlog of I-485 applications in the local USCIS office, 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 government, the fiancé(e) may apply for the condition to be removed. Approximately a year later, the fiancé(e) is eligible for citizenship.
Criteria for Approval
In order to qualify for a Fiancé(e) Visa, you must meet the following main requirements:
- You are a U.S. citizen (there is no comparable visa for permanent residents)
- You have met your fiancé(e) within the previous two years
- You and your fiancé(e) are both legally free to marry
- You and your fiancé(e) both have a serious intention to marry within 90 days of your fiancé(e)'s arrival in America
- You must meet the requirements of the International Marriage Broker Regulation Act of 2005 ("IMBRA").
IMBRA--International Marriage Broker Regulation Act of 2005
If you met your fiancé(e) through the services of an international marriage broker, you must notify USCIS of that fact (on the USCIS Forms). The term "international marriage broker" means any business, individual or other entity that charges fees for providing dating, matrimonial, matchmaking services, or social referrals between U.S. citizens/nationals/lawful permanent residents and foreign national clients by providing personal contact information or otherwise facilitating communication between individuals. Further, if you have been convicted of certain crimes you must also submit certified copies of all court and police records showing the charges and disposition for every such conviction. [Even if your records were sealed or otherwise cleared or if anyone told you, you no longer had a record.] If your petition is approved, the information you submit will be provided to the beneficiary of your petition.
In addition, IMBRA imposes limitations on the number of petitions you may file or have approved without seeking a waiver of the limitation. If you have filed two or more K-1 visa petitions at any time in the past or had a K-1 visa petition approved in the last two years prior to the filing of a new petition, you must apply for a waiver. Waivers are available generally only in certain circumstances, e.g., proof of death of prior of a prior beneficiary, or your prior offense occurred at the time you were being battered of subjected to extreme cruelty by your spouse, parent or adult child or you were not the primary perpetrator of the violence and you acted in self-defense.
Meeting 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 Fiancé(e) Visa process, the petitioner must first submit an application to the USCIS. The petitioner and fiancé(e) will need to file numerous forms and documents with the USCIS in order to prove that the petitioner and fiancé(e) qualify for the K-1 Fiancé(e) Visa. The waiting time for the USCIS to approve a K-1 visa can be anywhere from eight 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"). USCIS delay in processing the petition can also lead to RFE's for more recent photographs or new Affidavits. The USCIS send out literally thousands of RFEs per year. Of course, every one of the petitioners 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 thousands of K-1 petitions to reduce the risk of an RFE to nearly zero (our RFE rate is less than 1%).
U.S. Embassy Phase
Once approval has been received, the case is transferred to the Department of State's National Visa Center where a background check is begun on the fiancé(e). The NVC then forwards the case file to the U.S. Embassy or Consulate having jurisdiction over thefiancé(e)'s petition. Once the documents have been received by the Embassy, and the State Department's background check on the fiancé(e) has been concluded, the fiancé(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 be issued on the same day as the interview or, in some embassies, in the week following the interview. The fiancé(e) is then free to travel immediately and directly to the United States
K-1 Visa Frequently Asked Questions (FAQ)
1. Can I marry my fiancé(e) overseas and still bring him/her on a K-1 visa.
A: No. K-1 visas are available only to persons who are planning to be married. 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 fiancé(e) is in the U.S. on the K-1 visa I obtained for him/her, but I'm not sure I'm ready to get married. Can I extend my fiancé(e)'s K-1 visa?
A: No. The K-1 nonimmigrant status can neither be extended nor changed. If you don't get married within 90 days of the K-1 status validity period, your fiancée will have to leave the U.S. . This is a very strict law in US immigration and there are no exceptions.
3. My fiancé(e) was in the U.S. on the K visa, but our relationships didn't work out at the time and s/he 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 him/her?
A: Yes. The second visa will be more difficult to obtain, though. Your fiancé(e) 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 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?
A: No. You can't avoid the sponsorship requirements. However, it is possible to find a joint sponsor to help with you with this problem. The joint sponsor must be able to meet all the government's financial and document requirements just as though s/he 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 fiancé(e) while s/he is in the U.S. on the K-1 visa, will s/he have to return home after the marriage?
A: No. Your spouse will not have to leave the U.S. You will, however, have to apply for adjustment of status to permanent residency for your new spouse so that s/he can lawfully remain in the U.S.
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 fiancée visa. Can I do this?
A: 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 fiancée. 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 and that your ex-wife did not reside illegally in the U.S.
7. My fiancé(e) has been denied a B1/B2 visitor visa for the U.S. before. Will that affect our current K-1 visa petition?
A: Typically, no. If your fiancé(e) did not misrepresent any material fact during the B1/B2 visa interview, s/he will still be eligible for a K-1 Visa
8. My fiancé(e) has a valid B1/B2 visitor visa for the U.S. . Is she allowed to come to America while my K-1 visa petition for him/her is pending with the U.S. immigration authorities?
A: Yes. S/he is allowed to enter, but s/he may face difficulty because she has to convince the immigration officials in the airport that s/he has no intentions to stay in the U.S. permanently. S/he has to show s/he has "dual intent" to stay for a short period on the current B1/B2 visa and s/he intends to eventually stay permanently in the U.S. 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, many people get through this situation successfully.
9. My fiancé(e) was denied entry to the U.S. some time ago. An immigration officer at the port-of-entry said that the history of his/her previous visits showed that s/he had been spending the most of time in America rather than in her home country. Will that affect our pending K-1 visa petition?
A: No, it should not. If an officer's decision was based solely on the fact that your fiancé(e) had used his/her visa to spend the most of his/her time in the U.S., then it won't affect your current K-1 visa petition.
10. My fiancé(e) has been to the U.S. as an exchange J-1 student before and is a subject of 2 year home residency requirement. Is there any chance to bring him/her to the U.S. on a K-1 fiancé(e) visa without waiting until the above requirement is fulfilled?
A: Yes. However, the chances are very slim indeed as this type of waiver is very difficult to obtain.
11. My fiancé(e) has overstayed his/her visa before. Is s/he eligible to come to the U.S. on the K-1 fiancé(e) visa?
A: It depends. If s/he overstayed his/her prior visa by over a year, s/he is barred from re-entering the U.S. for ten years (although an "extreme hardship" waiver is possible). If s/he overstayed her/his prior visa by six months to a year, s/he is barred from re-entering the U.S. for three years. 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?
A: 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. | 
