What is the K-1 visa?

The K-1 is a nonimmigrant visa that permits a foreign national fiancé of a U.S. citizen to travel to the United States to marry the petitioning U.S. citizen within 90 days of arrival to the U.S.

Once the couple marries, the foreign citizen can adjust status to become a lawful permanent resident of the United States (Green Card holder). Although a K-1 visa is legally classified as a nonimmigrant visa, it usually leads to immigration benefits and is, therefore, processed by the Immigrant Visa section of U.S. embassies and consulates worldwide.

 

Who is Eligible to File?

  • the non-immigrating half of the couple (the ˝Petitioner˝) must be a U.S. citizen (not a permanent resident or Green Card holder);
  • both members of the couple must be free to legally marry according to the laws of the state where the marriage will take place (i.e. single and of legal age). Same-sex couples can qualify for a K-1 visa, if same-sex marriage is legal in that particular state;
  • the immigrant (the ˝Beneficiary˝) has a genuine intention of marrying the Petitioner after arriving in the US;
  • the Petitoner and the Beneficiary have met in person within the last two years.

 

This visa is not appropriate for couples who are merely thinking about getting married. The couple will need to prove their intention to get married; such as letters to each other discussing future marriage/wedding plans and announcements sent to friends. The most convincing types of evidence of intentions are documents showing that the couple has set a date for the wedding and has made some arrangements, like renting a space and hiring a photographer. However, it is best to be flexible with dates, as one cannot count on getting a visa in time for the specific date, and it would be terrible to have to cancel and lose deposits.

The process:

Step 1: Personal Meeting Requirement

Prior to filing the K-1 visa petition, the Petitioner and the Beneficiary are required to have physically met within the last two years. If a couple has never met and only spoke by phone or on-line, they have to arrange to meet prior to applying for a K-1 visa. The meeting can take place anywhere. In most cases the Petitioner will visit the Beneficiary in their home country, or the couple will meet at a neutral country. There are, however, certain exceptions for cases of religious tradition or in the event of an extreme hardship to the U.S. citizen.

Documentary Proof of Meeting and an Ongoing Relationship:

1.

Copies of all airline boarding passes, train passes, itineraries, hotel receipts, passport stamps (copies of the stamps must be clearly visible), and other documentary evidence that the couple has met within the last two years. Highlighting or placing post-it notes indicating the dates and locations on the submitted copies is recommended to make the adjudication easier for the reviewer.

2.

Color photos of the Petitioner and Beneficiary together. The back of the photos can be noted with the names, dates and locations. Two to five photos are recommended. Digital photos can be printed on any color printer. Place photos in a plastic bag or photo sheet and label the sheet. Please note that if original photos are submitted, they will likely not be returned.

3.

The following items will typically not be enough to prove that the couple has met in the last two years, however, they will demonstrate an ongoing relationship: copies of landline and cell phone bills, appropriate letters and emails, stamps on letters (to document the date they were sent), and other written documentary proof. Provide a reasonable amount; two to four documents of each type is enough.

4.

While optional, many couples include a copy of the engagement ring receipt.

Step Two: U.S. Citizen Petitioner Files a Visa Petition

To begin the process of oftaining a K-1 visa, the U.S. Citizen Petitioner must file a visa petition with United States Citizenship and Immigration Services (USCIS).

This is done by mail, using USCIS Form I-129F, Petition for Alien Fiance.

The Petitioner must submit documentary proof of U.S. citizenship (such as a copy of a birth certificate or passport), as well as evidence of the courtship and intended marriage, a personal statement from each on the same topic, proof that the couple has met within the last two years, evidence of commission of any violent or domestic crimes (as detailed on the Form I-129F instructions -- in this situation one should absolutely consult with an attorney), and a passport-style color photo of Petitioner and Beneficiary, taken within the 30 days before submitting the petition. If there are any issues that might prevent a legal marriage from taking place -- for example, if one party has been married before -- the party will need to submit evidence to overcome that, such as divorce or death certificates for the previous spouse.

The Petitioner must pay a nonrefundable fee to USCIS in the amount of $535, when filing the fiancé petition.

Once the petition is submitted, USCIS will review it for completeness and send, within a few weeks, a Form I-797 Notice of Action acknowledging receipt.

If and when the petition is approved, USCIS will send the Petitioner another Notice of Action advising of petition approval. USCIS will then forward the petition to the National Visa Center (NVC). The NVC issues a case number and transfers the petition to the U.S. embassy or consulate having jurisdiction over the fiancé’s place of residence.

Assembling the I-129F Package: Checklist (https://www.uscis.gov/system/files_force/files/form/m-1151.pdf?download=1)

Forms and Documents

(All supporting documents must be in English or be translated)

  1. Payment as required by USCIS. Use of a personal check is recommended as a best way to track payment. Money Orders are also accepted. Refer to the Guide to Paying USCIS Immigration Fees.
  2. Cover Letter. A cover letter should include a description of what the petition is for (I-129F) and a table of contents (list of everything in the packet). If additional space is needed to explain the case, attach a separate sheet and list the attachment on the cover sheet. Make sure to sign and date the cover sheet.
  3. Form I-129F: Petition for Alien Fiance.
  4. Original statements (from both the U.S. Citizen and the foreign fiancé), certifying an intent to marry within 90 days of entering the U.S. on a valid K-1 visa.
  5. Proof of having met in past two years. To organize this information, create a single typed page with the following elements:

           1) Title the page 'Evidence of In-Person Meeting in the last 2 years';

           2) A description of how the couple met (same as stated in Part 2 Question 53-54 of I-129F);

           3) A list of provided evidence.

  1. One passport-type photo of the U.S. Citizen. Write the full name of the US citizen on the back. Place in a plastic bag and label the bag "Photo of <Insert US Citizen's Name>". Attach the bag to a sheet of paper.
  2. One passport-type photo of the foreign fiancé. Write the full name of the foreign fiancé on the back. Place in a plastic bag and label the bag "Photo of (insert foreign fiancé name) ". Attach the bag to a sheet of paper.
  3. Copy of the Birth certificate (front and back) for the U.S. Citizen or a copy of ALL pages of the U.S. Citizen's passport issued with a validity of at least 5 years, or a copy of the U.S. Citizen's naturalization certificate. Any of these can be used to establish U.S. citizenship.
  4. Copy of final Divorce Decree(s) or Certificate(s) for the U.S. Citizen and/or foreign fiancé if either has been previously married. If the previous marriage of the U.S. Citizen and/or foreign fiancé ended due to the death of their spouse, then include a Copy of Death Certificate(s) documenting that fact.
  5. Proof of Legal Name Change if either the U.S. Citizen and/or foreign fiance is using a name other than that shown on the relevant documents. Provide copies of the legal documents that made the change, such as a marriage certificate, adoption decree or court order.
  6. In regards to Part 3 of the I-129F, if applicable, provide certified copies of all court and police records showing the charges and dispositions for any specified conviction(s) (in accordance with the IMBRA). See Part 3 of the I-129F instructions for more information.

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Petition Approval

The USCIS will notify the Petitioner when, and if, it has approved the petition. Approval times vary but generally are from four to six months. The USCIS then sends the petition to the State Department, which performs a background check, and then forwards it to the correct embassy and consulate for final processing. The petition will be valid for four months, but it can be extended if a visa cannot be issued during that period.

Step Three: Foreign-Born Fiance Applies to U.S. Embassy or Consulate

The embassy or consulate will inform the fiancé about its requirements for forms, a medical examinations, and documents. Some of these may be country-specific.

The fiancé will have to appear before a consular officer for a scheduled interview. Besides a valid passport, the fiancé must typically submit all of the following at the time of the interview:

  • birth certificate (future spouse and any dependent children);
  • divorce or death certificate of any previous spouse for both the applicant and the petitioner;
  • police certificate from all places lived since age 16 (future spouse or any dependent children);
  • medical examination, including evidence of vaccinations ;
  • evidence of financial support (a Form I-134, Affidavit of Support may be requested, to be prepared and signed by the petitioner);
  • two Nonimmigrant Visa Applications, Form DS-156 (A Form DS-156, prepared in duplicate);
  • nonimmigrant Fiancé(e) Visa Application, on State Department Form DS-156K;
  • Application for Immigrant Visa and Alien Registration, on State Department Form DS-230, Part I  (but not Part II);
  • two photos, passport style;
  • evidence of a fiancé relationship;
  • passport (for the future spouse and any dependent children) valid for travel to the US, with an expiration date at least six months beyond the date one would have to leave the US after entering on a fiance visa;
  • visa fees.

After considering the application and evidence, the consular officer should approve the person for a K-1 fiancé visa to the United States. If the case is denied, there is, for all practical purposes, no right of appeal. But if the underlying problem can be corrected, one may re-apply.

Note: The consular officer may ask for additional information, such as photographs and other proof that the relationship with the U.S. citizen fiancé is genuine.

After the K-1 Fiancé Visa is Approved:

Upon entering the U.S. on a K-1 Visa, the visa holder must get married to the Petitioner within 90 days. If the marriage does not take place within 90 days or the K-1 Visa holder marries someone other than the original Petitioner, the K-1 Visa holder will be required to leave the United States. A K-1 Visa holder cannot obtain an extension of the 90-day time limit.

If the K-1 Visa holder intends to live and work permanently in the United States they should apply to become a permanent resident after the marriage. Please note, a K-1 Visa holder will receive a "Green Card" and conditional permanent residence status for two years. Conditional permanent residency is granted when the marriage is less than two years old at the time the Adjustment of Status application is processed.

Note:

A K-1 Visa holder can enter the United States only one time with this visa. Upon entry, the K-1 visa is cancelled, and an Electronic I-94 is issued upon entry and becomes the controlling document. If the K-1 entrant leaves the US before marriage to the original petitioner, re-entry into the U.S. will likely not be allowed without a new visa. Also, if the K-1 entrant has applied for and is awaiting approval of an Adjustment of Status petition, the K-1 entrant should not leave the U.S. without also having applied for and received approved Advance Parole. Departing the U.S. without Advance Parole, could result in the inability to re-enter the U.S.. Additionally, it implies the abandonment of the petition for Adjustment of Status. (Note that even approved Advance Parole does not guarantee re-entry into the U.S.)

Step Four: Enter the United States

The immigrating fiancé will need to present the K-1 visa at a U.S. border, airport, or other point of entry. Admission at this point is not guaranteed. If the officer of Customs and Border Protection (CBP) finds evidence that the fiancé were not, in fact, eligible for the visa, or are otherwise inadmissible, or have any other intent but to marry the Petitioner, entry may be denied.

Step Five: Get Married

If the fiancé intends to apply for a Green Card, it is best to marry as soon as possible after entrance to the U.S.. Prior to applying for a Green Card an official marriage certificate is required. A copy of it needs to be submitted with the Green Card application. The requirements, like time of processing, for obtaining a marriage certificate vary from state to state. Please note, that while it is required to marry the Petitioner within 90 days of arrival, it is not a requirement to apply for a Green Card during this time period.

Step Six: Apply for Adjustment of Status

This is optional. If one doesn't want to remain in the U.S. and obtain a Green Card, one may simply leave within the 90-day expiration date of the fiancé visa, otherwise, it is recommended to adjust the status to that of a permanent resident.

K Visa Eligibility for Fiancé's Children

When the fiancé gets a K-1 visa, any of the fiancé unmarried children under the age of 21 can be issued K-2 visas. This will enable them to accompany the fiancé to the U.S.. The children will, too, be able to apply for Green Cards once the parent gets married and applied for a Green Card.

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To qualify for a K2 visa, one must be:

  • Less than 21 years old
  • The unmarried child of a K-1 applicant

Several facts about the K-2 Visa

With a K-2 visa, one may:

  • Reside in the U.S. with the family while waiting for the marriage of the K-1 parent
  • Apply for Employment Authorization, using USCIS Form I-765
  • Study in the U.S.
  • Apply for permanent residence once the parent does
  • Children of K-1 may stay in the U.S. on a K-2 visa for a maximum period of 90 days from the date of entry. If the K-1 parent visa holder and U.S. citizen do not marry within 90 days, the K-2 child must depart the U.S. within 30 days
  • there are no extensions of stay with a K-2 visa
  • Generally an interview is required at the American Consulate. Some consulates do not require the child to attend if the child is below the age of 14. Other consulates require the child to attend even if the child will not occompany the K-1 parent, but will follow later. The K-2 holder may enter the U.S. up to one year after the K-1 parent

On K-2 visa, one may not:

  • Change to any other nonimmigrant status
  • Enter into the U.S. if one has been temporarily barred for previous violation of US immigration laws

The documents required for K-2 visa are:

  • Valid passport
  • Form DS-160, Nonimmigrant Visa Application, completed online, with recent color photograph on a white background (photo must be electronically uploaded to DS-160).
  • Copy of official birth certificate issued by the Registrar of Births
  • Completed Form I-134, Affidavit of Support, and supporting documents from the sponsor
  • Complete medical examination report from one of the Embassy's panel physicians
  • Bank draft for visa fee

 

An immigration attorney may be able to assist in choosing the right visa strategy. Family-based immigration is a lengthy, sometimes complex, and ever-changing process.  It is common for immigration cases to be delayed and the couple kept apart if specific procedures are not carefully followed each step of the way, or if incomplete information or documentation is submitted. Love and marriage are too important to leave the immigration process to chance.