K-1 Visa / Fiancé Visa
K-1 Visa: What is it And Who Is Eligible
K-1 visa is a non-immigrant visa, commonly known as a Fiancé/Fiancée Visa.
You are eligible for a K-1 visa as a Fiancé/Fiancée of U.S. Citizen if you are:
- Legally eligible to marry under the law of both countries;
- You will marry within 90 days after your arrival to the U.S.;
- You entering for the purpose of marriage.
Note that you are not allowed to change to any other nonimmigrant status while in the U.S.
Remember that you are not allowed to apply for a K-1 fiancée visa while your fiancée is in the U.S. Thus, K1 Status is available to the fiancé of U.S. Citizen’s outside of the U.S. to enter and marry U.S. Citizen.
Your marriage must take place within 90 days after your entry, no extensions available.
Fiancé Visa / K-1 Visa: The Obtaining Process
The process of obtaining a non-immigrant fiancé visa starts when U.S. citizen fiancé files a petition with USCIS. The petitioner must swear that each party intends to marry within 90 days after the foreign national fiancé’s entry into the U.S. The petition must contain evidence showing the legal capacity and the intention to marry. Furthermore, the couple must have met in person within two years before the filing of the fiancé petition. However, there is an exemption from the requirement that petitioner and K-1 beneficiary have met within two years immediately preceding the filing of the petition. According to 8 CFR §214.2(k)(2), and as a matter of discretion, the petitioner may be exempt from this requirement only if:
1) it is established that compliance would result in extreme hardship to the petitioner
or
2) 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. In addition to establishing that the required meeting would be a violation of custom or practice, the petitioner must also establish that any and all other aspects of the traditional arrangements have been or will be met in accordance with the custom or practice.
If the petitioner fails to prove that the petitioner and K-1 fiance-beneficiary have met within the required period or failed to provide evidence that the requirement should be waived, the petition shall be denied. Such denial shall be without prejudice to the filing of a new petition once the petitioner and K-1 beneficiary have met in person.
If the petition is approved, a foreign national fiancé would need to attend his/her interview at the appropriate consular office.
It is important to submit a significant amount of evidence in support of the K-1 visa.
The consular officer will interview a foreigner national fiancé, a fiancé will need to have fully completed security clearances and all necessary documents. If the consular officer finds that the fiancé is admissible and eligible for a fiancé visa, the consulate will issue a K-1 visa for a foreign national fiancé. As mentioned, an alien fiancé must marry the U.S. citizen within 90 days of entry into the U.S. or lose his/her lawful status and be subject to removal from the U.S.
If the parties married beyond the 90 day period, the foreign national would have to go through consular processing abroad.
If an alien fiancé and U.S. citizen marry within 90 days, the alien must file for adjustment of status. If the adjustment completes within two years of marriage, an alien will be subject to the two-year conditional residence requirement. If an adjustment of status takes more than two years, the alien will receive a permanent resident status.
According to Matter of Sesay, 25 I&N Dec. 431( BIA 2011) with respect to a fiancé adjustment process, the decision was that the applicant was not subject to the provisions of section 216 of the Immigration and Nationality Act (INA) because his marriage was more than 2 years old when his adjustment application was adjudicated and thus he was entitled to receive a permanent and not conditional residency.
If you need assistance with a fiancé visa, please contact us.