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K-1 Visa for Fiancés of U.S. Citizens

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Jan 31, 2019)

If you are a U.S. citizen, you may obtain a K-1 visa for your foreign-born fiancé, by filing a Petition for Alien Fiancé (Form I-129F) with the USCIS in the United States. Once that petition is approved, the USCIS will send the approved petition to the National Visa Center (NVC).  The NVC will collect the required documents and fees from you and will forward the file to a U.S. consulate for consular processing.

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Your fiancé will have an interview at the designated U.S. consulate. Assuming all is good, the U.S. consulate will issue a fiancé (K-1) visa. Thereafter, your fiancé will have to come to the United States within six months and will have to marry you within 90 days from the date of entry, in order to be eligible to apply for green card.

To receive permanent residence status (green card), your newly married spouse must file an Application for Adjustment of Status (Form I-485).  Initially your foreign-born spouse will receive the conditional permanent residence status. That condition must be removed in two years. See Removing Condition on Permanent Residence of a Spouse.

K-1 visa would be especially useful if you wish to marry a spouse of same sex and the local laws overseas do not recognize such a marriage.

What are the requirements for K-1 Visa?

You must be able to show that

  • You and your fiancé are legally free to marry and intend to marry each other within 30 days of the arrival of your fiancé in the United States.
  • You must show that you and your fiancé have met in person during the two years immediately before filing the petition, unless you establish that either (a) this requirement would violate strict and long-established custom or practice of your fiancé's foreign culture, and that all aspects of the traditional arrangements have been or will be met according to that custom or practice; or (b) meeting your fiancé in person would result in extreme hardship to you. In practice establishing this requirement would be challenging. In fact, it would be best to extensively document your prior contacts with your fiancé, by collecting such evidence as pictures (including pictures showing the two of you with friends and family members), trip documentations, phone call records, love letters, entries on social media, and engagement ring receipt.

To see the current USCIS fee for this petition, see USCIS Fee Schedule.

To see how long the USCIS would take to adjudicate the petition, see USCIS Processing Times.

What are the restrictions of K-1 visa?

  • If you and your fiancé were legally married overseas, you may not apply for fiancé (K-1) visa. You may, however, apply for an immigrant visa (green card) for your spouse. In addition, you may apply for a K-3 Visa for your spouse, so that your spouse may join you here while awaiting the adjudication of the immigrant petition.
  • An approved K-1 visa petition is valid for four months from the date of USCIS action.
  • If a consular officer finds that the parties remain free to marry each other and intend to marry each other within 90 days after the fiancé entry the United States, then the consular officer may revalidate the petition for an additional period of four months. An approved petition may be revalidated any number of times.  The longer this process drags on, it will be more likely for the consular officer to make an adverse finding about the intention of the parties. If the consular officer is not convinced that the parties continue to intend to marry, including where the parties have taken no action on the file for a year, the consular officer will return the approved petition to the USCIS with an explanatory memorandum.
  • Your fiancé will have six (6) months after the issuance of the visa to enter the United States.
  • Your fiancé status automatically expires 90 days after admission into the United Sates.  The fiancé status cannot be extended or converted into another status.  If you do not marry within the prescribed time, your fiancé must leave the United States.  Otherwise, your fiancé will be in violation of the immigration laws and will be subject to removal (deportation) proceedings. This may also adversely affect subsequent requests for immigration benefits on behalf of your fiancé. See Consequences of Overstaying.
  • Your fiancé will have 90 days from the date of entry to marry you and apply for adjustment of status.  If this happens later, you will have to file a Petition for Alien Relative (I-130), and start a new process as if you had married an alien in the United States.  In that case, your fiancé may file an Application for Adjustment of Status concurrently with your petition. See Adjustment of Status.
  • If your fiancé meets another person and decides to marry somebody else, your fiancé must leave the United States and start a new process.
  • If you have applied for two or more K-1 visas in the past or have received a K-1 visa approval within two years from your current filing, you would not be eligible to apply for a fiancé visa. However, you may seek a waiver of this restriction when you file your petition.

What level of financial support do I need to show to support the K-1 visa application of my fiancé?

When filing a petition for your fiancé (K-1) and the children of your fiancé (K-2), you need to file Form I-134 (Affidavit of Support) to show your financial ability to support your proposed family. Form I-134 must show that your income is at least 100 % of the Federal Poverty Guidelines. Note that you do not need to file Forms I-134 with your initial classification petition, which is filed with the USCIS. This form must be presented to the U.S. consulate during the consular processing.

Eventually, when you get married and your fiancé applies for adjustment of status, you would need to file Form I-864 (Affidavit of Support under Section 213A of the INA) to show that your income is at least 125 % of the Federal Poverty Guidelines.

Can I apply for immigration of the children of my fiancé under K-2 visa?

Your fiancé's children should be listed on the petition (Form I-129F).  The children, who are unmarried, under the age of 21, and otherwise admissible to the United States, will be derivative beneficiaries of the petition, and they can receive K-2 visas. They must be unmarried and under 21 at the time they actually enter the United States and at the time they adjust their status (see below regarding the children's adjustment of status), and they can only stay in K-2 status up to 90 days.

Ensure that you list all children of your fiancé on Form I-129F and other forms seeking biographical information, even if the children do not plan to immigrate to the United States. A variety of complications may arise in the future, if you fail to do so.

Children of your fiancé are not yet your stepchildren. They come to the United States as derivative beneficiaries of a K-1 visa holder, and under the Immigration and Nationality Act (INA) §101(b)(1)(A), they need to be unmarried and under 21. By contrast, when the children come to the United States as derivative beneficiaries of a K-3 visa holder (or as a child your spouse who is the beneficiary of an immediate relative petition), they are deemed your stepchildren under INA §101(b)(1)(B), which requires them to have been less than 18 years of age at the time of your marriage to their foreign-born parent. In either case, the children must be unmarried.

There are differing views on the age of the children at the time you and their foreign-born parent marry.  The Department of State's web site states that the “the child's stepchild relationship with [the citizen] spouse must be created before the child reaches the age of 18.” See Nonimmigrant Visa for a Fiancé(e) (K-1).  However, a USCIS memorandum correctly advises the officers to avoid this approach.

The purpose of this memorandum is to remind officers that K-2 aliens seeking to adjust status are NOT required to demonstrate a step-parent/step-child relationship with the petitioner.  A K-2 alien who is over 18 years of age may adjust status provided they satisfy the requirements for adjustment of status under Section 245 of the Immigration and Nationality Act (INA). Officers should follow the regulations at 8 CFR 214.2(k)(6)(ii) regarding adjustment of status for K-2 aliens.

See USCIS Interoffice Memo. on Adjustment of Status for K-2 Aliens (March 15, 2007).  You may wish to print a copy of this memorandum and take it with you to any interviews at the consulate or with the USCIS officers. Further, to avoid unnecessary complications, you must consult an attorney to address any change in laws or the USCIS practices and choose the best course of action.

The children do not need to travel with your foreign-born fiancé to the United States.  Their K-2 visas would be good for one year after the K-1 visa was issued to your fiancé. The children can travel to the United States on their K-2 visas even if you and your fiancé marry and your fiancé adjusts his or her status.

Once your fiancé's children are in the United States and after your marry their foreign-born parent, they will need to request adjustment of status to receive conditional permanent residence status (green card). Each child must file his or her own application for adjustment of status and must apply for and receive adjustment of status before his or her 21st birthday.  Child Status Protection Act (CSPA) benefits are not available to K-2 visa holders.

If you make a notation on the child's application for adjustment of status that the child is in danger of “aging out” (i.e., reaching 21 before the adjustment application may be adjudicated), the USCIS may expedite processing of the child's application. There is no guarantee that the USCIS may do so or, if they do, the process would complete in time. Unfortunately, premium processing is not available for adjustment of status applications.

Alternatively, in appropriate circumstances, the USCIS may accept a Petition for Alien Relative (Form I-130) by you based on your parent-child relationship with the K-2 child. In that case, the child will be considered your stepchild and can benefit from the protections of Child Status Protection Act (CSPA).  The child's age will freeze at the time of your filing. This will allow the child to adjust status even if the child reaches the age of 21.  To proceed using this method, you must meet the following requirements:

  • You and the child must have a parent-child relationship,
  • The child must not had been over 18 years of age at the time the marriage creating the status of stepchild-stepparent relationship occurred,
  • You must file the Petition for Alien Relative (Form I-130) before the child's 21st birthday, and
  • You must submit all required documentation and pay the required fees for Forms I-130 and I-485.

Can my fiancé work in the United States while on K-1 visa?

The K-1 visa by itself does not entitle your fiancé to work in the United States.  However, upon admission to the United States, your fiancé may apply for Employment Authorization Document (EAD), using Form I-765. Any work authorization issued pursuant to that request will be good for 90 days. After the marriage, your fiancé may file a request for employment for authorization together with the Application for Adjustment of Status, to receive an extended authorization to accept employment. The same rules also apply to the children of K-1 visa holder, who are in K-2 status.

Can my fiancé travel outside of the United States while on K-1 visa?

K-1 visa is good for only one entry into the United States. Therefore, if your fiancé leaves the United States, he or she may not be readmitted into the United States.  There are some exceptions for brief travels to Canada and Mexico. However, you should consult your attorney before taking such a trip.

When you and your fiancé are married, and your fiancé (now your spouse) files for adjustment of status, he or she may also apply for advance parole, in order to be able to leave and come back to the United States.  This means that you are well advised to plan any honeymoon plans inside of the United States unless you are willing to wait until you receive the USCIS' approval on your spouse's application for advance parole. The same rules also apply to the children of K-1 visa holder, who are in K-2 status.

Under some circumstances, an individual returning from a trip to U.S. territories or possessions (such as Guam, Puerto Rico, U.S. Virgin Islands, American Samoa, Swains Island and the Commonwealth of the Northern Mariana Islands) is considered to have left the United States and to be making a new entry into the country. If your new spouse and former fiancé plans to travel to such destinations without an advance parole, please consult an attorney in advance.  See the USCIS and the U.S. Customs and Border Patrol statements regarding traveling outside of 50 states of the United States.

Related Topics:

Removing Condition on Residence Based on Marriage

Citizenship after Marriage to U.S. Citizen

Waiver for Battered/Abused Spouses, Children, & Parents

 

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