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Christopher M. Pogue, Esq.
  
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K-1 Fiancé(e) Visa

 

Click here to read about common mistakes impacting couples... This article was written for the Canadian "Law Now" Magazine, but is widely applicable to couples from anywhere in the world.

In order to bring your fiancé(e) to the United States, you must follow strict U.S. Citizenship and Immigration Services (USCIS) guidelines. 

In order to file a fiancé(e) petition you must:

  • Be a US citizen.
  • Prove that you have met your fiancé(e) in person in the past two years, or demonstrate a valid reason why you are unable to arrange a meeting. A valid reason normally involves a disability or religious or cultural custom; not financial reasons.
  • Prove that you and your fiancé(e) are legally free to marry. It is not acceptable for you to just be separated from a previous spouse. If either of you were previously married you must have a finalized divorce.
  • Additionally, once the K-1 fiancé(e) visa is issued and your fiancé is admitted to the United States, you must marry your fiancé(e) within 90 days, or your fiancé(e) will be required to leave the country and have no chance to adjust their status to Legal Permanent Resident (green card).

The process to bring your fiancé(e) to the United States is two parts, and the burden is on you to prove to immigration officials that you are eligible for the K-1 visa.

To read more about the process, this article continues below. You can also contact us for a free consultation.



* Part I – “USCIS Approval”

USCIS normal processing time for Part I is 1-5 months, when applications are properly submitted and monitored by an attorney. Otherwise wait times can be significantly longer. 


The first part of a K-1 petition begins with filing an petition package with USCIS. This package will include evidence to establish that you have personally met your fiancé(e) in the past two years and that you are both legally able to marry. 

Importantly, the International Marriage Broker Regulation Act (signed into law January 5, 2006) provides that a petitioner for a fiancé(e) K-1 must submit with his or her application information on any criminal convictions for any of the following specified crimes: Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking, Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment OR Crimes relating to a controlled substance or alcohol where the petitioner has been convicted on at least three occasions and where such crimes did not arise from a single act. This can include Driving Under the Influence (DUI) and public intoxication.

The International Marriage Broker Act can complicate the K-1 fiancé visa petition process if you have been convicted of any of the listed crimes or have filed previous K-1 fiancé petitions in the past. You should discuss all past immigration petitions and any criminal convictions with your lawyer.


Once USCIS receives the petition and accompanying documentation, USCIS will issue a receipt on Form I-797 to both you and your attorney with a receipt number, which can be used to check your case status online.

If USCIS has no questions about the case, they will eventually approve the petition and send the petition to the National Visa Center and from there to the Consulate nearest to where your fiancé(e) resides.

If, however, USCIS has additional questions, they will issue a “Request for Evidence” or “RFE”. If an RFE is issued with questions about the petition we have only 30 days to respond. Should an RFE be issued in your case, your attorney will see to it that it is responded to fully and promptly with the requested information. All correspondence with USCIS is made by express mail. Failure to respond to an RFE in time or without the proper information will result in a denial of the petition.

* Part II – “National Visa Center & the Local U.S. Consulate”

Normal processing time is about 2-4 months, when documents and forms are properly submitted and monitored by your attorney. Otherwise wait times can last significantly longer.

Part II involves 'Consular Processing', when more forms and supporting documents will be provided to the U.S. Department of State. During this part the foreign national will be required to obtain a valid passport that is good for at least six months from his or her country. Additionally, they will be required to undergo a medical exam at a doctor designated by the local U.S. Consulate. Further, they will need to obtain a police certificate from the authorities in every country they have lived in for six months or more since reaching 16 years of age. Your attorney will assist you will all of these tasks and more.


Once these tasks are completed, the U.S. Consulate will notify the foreign national to appear at the Consulate for a 'fiancé visa' interview. The U.S. citizen fiancé(e) does not need to attend this interview, but can if he or she wants at the discretion of the Consulate. At the interview, the Consular Officer will closely scrutinize the visa application. The Immigration examiner tends to look for several things:

  • That there is a bona fide relationship
  • To confirm the information on the forms, or make changes, if necessary, for example, change of address or phone number
  • Whether the foreign national has violated U.S. Immigration laws
  • That the foreign national is not a criminal or terrorist
  • That the U.S. citizen Petitioner can 'financially support' the foreign national

It is very important to work closely with your attorney to prepare for this interview, to ensure that the visa is approved. This is where most cases develop issues if applicants are not fully prepared for what to expect.

At the end of the interview, the Consular Officer will render a decision on the case. If approved, the foreign national will receive a visa in his or her passport. Sometimes it can take a few weeks to obtain the actual visa. Therefore no travel arrangements should be made until the foreign national actually receives their passport and visa back from the U.S. Consulate. Upon receiving the fiancé visa, the foreign national may travel to the United States, and upon landing on U.S. soil, they will be admitted to the United States as a fiancé on the K-1 Visa.

Once your fiancé is admitted to the United States, you must marry your fiancé within 90 days or your fiancé will be required to leave the country, and have no chance to adjust their status. Employment may be authorized during this period by filing additional forms with USCIS.


Once you marry your fiancé within 90 days, your spouse may now file for their adjustment of status to legal permanent resident and get their green card. To learn more about this next part of the process, or to simply get started, contact us for a free consultation.
 

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This website and the information on it is not legal advice. Do not rely upon any information found on this website or through the links on this website.  You must contact our law firm AND enter into a written legal retainer agreement in order to obtain legal advice from our law firm for your situation. Contact us today so that we can provide you legal advice for your case.