Immigration Through Marriage

K-1  Fiancé Visa

The K-1 visa, also referred to as the K 1 Visa, is the most efficient method for bringing a foreign national fiancé to the United States. A U.S. citizen may bring their fiancé to the U.S. by filing the appropriate petition with USCIS. When the fiancé arrives in the U. S. he/she is allowed to remain in the country for ninety (90) days, and is granted immediate employment authorization. Within this ninety (90) day period, the foreign national MUST marry the U.S. citizen petitioner. Once married, the U.S. citizen spouse can file an adjustment of status application to make his/her spouse, a Lawful Permanent Resident (“Green Card.”) By entering on a K-1 visa, the foreign national is ineligible for an extension of stay or change of non-immigrant status.

Obtaining a K  1  Fiancé Visa

There are two important requirements in order to obtain a K 1 visa:

1. The U.S. citizen and foreign national fiancé must have met in person within two years of filing for the K 1 visa. (A waiver may be obtained to overcome the two year meeting requirement when cultural or religious customs forbid dating in advance of marriage; however, waivers are extremely difficult to obtain and carefully reviewed.)

2. Both parties must be legally able to marry, meaning all divorces must be finalized prior to filing a K-1 visa petition.

Eligibility for a K-1 Fiancee Visa

The K 1 visa is a two step process. First, the U.S. citizen, also known as “petitioner” files the K-1 visa petition on behalf of his/her fiancé, the “Beneficiary,” with the appropriate USCIS Regional Service Center. Once approved, the foreign national fiancé must undergo a visa interview at the American Consulate of his/her foreign residence.

The K 1 visa petition is filed using form I-129F, Petition for Alien Fiancé. The petition must be accompanied by the correct filing fee and the following supporting documents:

  • Evidence of the Petitioner’s U.S. citizenship
  • Evidence of the termination of the Petitioner’s and Beneficiary’s prior marriage(s) (i.e., divorce decree, death certificate)
  • Evidence that the petitioner and the beneficiary have met in person within the two years prior to the filing of the petition
  • Evidence to show the validity of the relationship. The more evidence the better, as USCIS will analyze the relationship to ensure that it is bona fide and has not been fraudulently entered into solely for the purpose of immigration benefits

K-1 Visa Issuance

Usually a K-1 visa is valid for a single entry. The foreign national must enter the U.S. within six months or the visa expires. The actual stay in the U.S. will only be for ninety days. The Petitioner and Beneficiary must marry within the ninety (90) day period. Once married, the U.S. citizen spouse files an adjustment of status application with the USCIS to make his /her spouse a Lawful Permanent Resident (“Green Card”) wherein the permitted stay is extended and permanent resident status is granted without leaving the U.S. Since there is no extension of K-1 status and a K-1 visa holder may not change to another non-immigrant visa status, the only way to maintain a lawful immigration status is to marry within the ninety day period and file an application for adjustment of status (with exception of special circumstances waivers).

The K-3 & K-4 Visa for Spouses and Children

The legal immigration Family Equity Act and its amendments, also known as the “LIFE Act” established a new non-immigrant category to permit the spouse or child of a U.S. citizen to be admitted to the U.S. in a non-immigrant category while waiting for a pending immigrant relative petition to be approved. This category is the direct result of tremendous backlogs in the processing of immigrant relative petitions. These backlogs had the result of keeping families separated for long periods of time. The K-3 visa is used for spouses and the K-4 visa is used for children. Those admitted on the K-3 visa will be granted employment authorization while waiting for their immigrant relative petition to be approved.

K-3 Eligibility

A foreign national spouse may qualify for a K-3 visa provided:

  • There exists a valid marriage with a U.S. citizen
  • The foreign national spouse seeks to enter the U.S. to await final approval of the immigrant relative petition and apply for Lawful permanent Resident status
  • The foreign national spouse has had an approved Petition for Alien Fiancé forwarded to the American consulate abroad, where the foreign national will apply for the K-3 / K-4 visa
  • The foreign national child may receive a K-4 visa, if that child is under twenty-one (21) years of age and is the unmarried child of the foreign national spouse eligible to be given a K-3 visa
  • U.S. citizens bringing in their spouses, minor unmarried children and parents, qualify as “Immediate Relatives” and always have a  visa immediately available to them. However there is no guarantee of being admissible for a “Green Card” and they must still meet other stringent requirements.

To talk to a lawyer about any personal or business immigration concern, call our offices in New York City at 212-401-4040 or Toll-Free in the U.S. at 800-244-5266. You can also contact us online.

 

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