FIANCE(E) VISAS (K-1 Visa)

Formerly Known As K-1 Visa

It used to be the case that if a foreign national and a U.S. citizen desired to marry, the best advice would be to have the foreign national travel to the U.S. on a tourist visa.

The couple could then wait a prescribed time period (60 days) to overcome the presumption of immigrant intent, marry, and proceed with an Alien Relative Petition and Adjustment of Status stateside.

As a practical matter, the fiancé(e) visa was relegated to nationals of countries that were rarely approved for nonimmigrant visas because of their high overstay rate, such as certain eastern European countries or some in South and Central America.

Because of the requirement that the couple have met in person within two years of filing the petition, a U.S. citizen intending to marry a foreign national who is unable to be approved for a tourist visa will travel to the fiancé(e)’s country to meet in person.

Recent policy changes and a renewed emphasis on immigration enforcement have rendered these visas more relevant. The Department of Homeland Security has begun issuing Notices to Appear in Removal Proceedings for foreign nationals married to U.S. citizens and who are in the process of adjusting status to lawful permanent resident.

The Service is taking the position that a foreign national who is in the adjustment process is removable if his or her authorized stay has expired (meaning they are out of status if they remained beyond their authorized stay).

As a practical matter, therefore, we have begun processing fiancée visas for nationals of countries that routinely issue tourist visas in order to ensure compliance with the letter of the law. While a foreign national who is married to a U.S. citizen may have strong defenses to a removal proceeding and will ultimately prevail on an adjustment before the immigration judge, it is expensive and time-consuming to go through the process.

Clients should be fully informed of the risks of proceeding straight to an I-130 and adjustment and decide if it is worth being subject to removal proceedings in lieu of the inconvenience and forced separation attendant to the fiancée visa.

The K-1 visa is available for same-sex unions.

This visa is for a foreign national who is the fiancé(e) of a U.S. citizen; who seeks to enter the U.S. solely to marry his or her U.S. citizen fiancé; does in fact marry within 90 days of entering the U.S. Minor children of the foreign national fiancée may accompany their parent.

The United States citizen fiancé must file form I-120F petition with the USCIS office with jurisdiction over his place of residence. Proof must be provided as follows:

• Both parties have a bona fide intention to marry within 90 days of the fiancé(e)’s entry
• There are no legal impediments to either party marrying. This element of proof will require evidence of legal termination of prior marriages of both parties (annulment, divorce decree, death certificate)
• The couple has met in person at least once during the two-year period preceding the filing of the I-129F
• If the petitioner has had any injunction against domestic violence or a restraining
  order or has been convicted of any domestic violence, sexual assault, child abuse
  and neglect, dating violence, elder abuse, stalking, or an attempt to commit such
  crime; or conviction for certain violent crimes or any crimes related to a
  controlled substance or alcohol where the petitioner has been convicted on at
  least 3 occasions not arising out of a single act.

Once the I-129F has been approved by USCIS, a DS-160 (nonimmigrant visa application) must be filed with the consulate having jurisdiction over the foreign national. A nonimmigrant “K-1” visa will be issued and the foreign national is free to travel to the U.S. He or she must marry within 90 days of entering the U.S. The visa remains valid for four months.

Once the couple have married stateside the foreign national simply files an application to adjust status as Lawful Permanent Resident.

1 This requirement may be waived if it would cause “extreme hardship” to the petitioner or if it would “violate strict and long-standing established customs of the beneficiary’s foreign culture or social practice.”