The following is in no way intended to be legal advice. It is intended for informational purposes only. If you have questions about any of this information, please don’t hesitate to call us. And keep in mind that the information here is general in nature; there may be special circumstances or issues in your case that would create a different outcome, which is why we always advise talking to an attorney before doing anything.
K-1 Fiancé(e) Visa
Coming to work and live in the United States is not the easiest of feats. A Foreign National (FN) who wants to do so can’t just choose to make it happen. They generally must have a special reason and special circumstances. This could be, for instance, relation to a United States Citizen (USC), or perhaps a foreign company that needs to send an employee to work in the US office, or maybe a student from another country that wants to study at a local college or university. Whatever the situation, it needs to fit some particular circumstances deemed acceptable by US immigration law.
Once such special circumstance is when a USC wants to bring a FN fiancé(e) to the US to get married. Like others, this requires a very specific set of circumstances, but one that is fairly common. You don’t need a special level of education, you don’t need to invest heavily in the US economy or have a specific job or task ready to be performed. You simply need to be getting married for an appropriate reason (discussed below) and be able to prove a bona fide relationship (also discussed below).
What are the qualifications for a K-1 Fiancé Visa?
Like most qualifying criteria in immigration, the K-1 qualifications are fairly straightforward at first blush. But upon closer inspection, fulfilling the requirements is a little more complicated. Fortunately, there aren’t nearly as many hoops to jump through with K-1 qualification as there are with some other visas.
To qualify, the FN must:
Be the fiancé(e) of a USC;
Seek entry into the United States only (sort of) for the purpose of entering into a valid marriage; and
Enter into marriage within 90 days of entry into the US.
Also the FN must be entering into a Bona Fide Relationship or Bona Fide Marriage; we’ll get to that in a moment. But let’s first look at these three main qualifications separately.
Be the fiancé(e) of a United States Citizen
The petitioner in a K-1 case is the USC, and the beneficiary is the FN. The petitioner can have obtained citizenship by any valid means, including birth in the US, naturalization, act of Congress, and so forth. The petitioner and beneficiary must be engaged. Easy, right? Well, as in many areas of law, the FACT of something is easy, but PROVING the fact can sometimes be difficult.
Keep in mind that the burden is always on the petitioner and beneficiary to prove that they meet the qualifications for the visa. In fact, the United States Citizenship and Immigration Service (USCIS) is required to presume that you don’t meet the qualifications until proven otherwise. In law this is called a “legal presumption” and it shifts the “burden of proof,” another legal term, to the petitioner and beneficiary.
Proving citizenship is fairly straightforward. This is done with a valid birth certificate, passport, Certificate of Naturalization, or other means.
Seek entry into the United States only (sort of) for the purpose of entering into a valid marriage
Generally there are two broad categories of visas: immigrant and non-immigrant. Intent is the main element that distinguishes these categories. An immigrant visa is for those seeking entry into the US with the intent to live here. A non-immigrant visa is for those seeking entry into the US with the intent not to live here long term. This might be for the purposes of study or fulfilling a short-term project or visit.
K-1 visas are one of the few that allow both immigrant and non-immigrant intent. While technically still a non-immigrant visa, USCIS allows individuals to enter the US on the K-1 to get married, and then go through the process of adjusting status to that of permanent residence, also known as getting a green card.
So the true purpose of entering must be to get married, but it’s okay if the long-term plan is to live in the US permanently. This is why I say that entry on a K-1 visa is “sort of” for the purpose of entering into a valid marriage; the FN can also have the purpose of applying for a green card.
However, keep in mind that the ability to live and work in the US is not part of the K-1 visa. It must be applied for separately after the marriage is complete. We’ll discuss this more shortly.
Enter into marriage within 90 days of entry into the US.
This is pretty straight forward as the beneficiary must be married within 90 days of entry into the US on the K-1 visa. The process and timing is a little more complicated than that, as we’ll discuss next.
What is a Bona Fide Relationship (BFR) and what are considered proper reasons for marriage?
Simply put, a bona fide relationship (BFR) is a real relationship where, in this case, the intent of the parties is to marry. One major requirement in a K-1 case is that the parties must have met in person within the previous two years of filing the petition. This can be here in the US, abroad, wherever, as long as it was in person.
This requirement may sound a little obvious to those who have never had a relationship with someone overseas. However, this requirement aims to prevent potential fraud. In fact, marriage fraud is one of the biggest fraud concerns of USCIS, and for good reason. Without this in-person requirement, it would be relatively easy to bring individuals into the US through an online or mail service whereby couples are matched up, without any intention to have a true relationship between the parties. Such action would fly in the face of the intent of the K-1 classification, which is to provide a mechanism by which individuals in BFRs can get married in the US should they wish to do so.
But being in a BFR is more than simply having met in-person. It’s generally advisable to provide additional proof of the relationship. This can be done through evidence that you would normally expect a couple to have, almost as a by-product of their relationship. Photos, for instance, are great evidence of a BFR. Whether posed, spontaneous, selfies, or other types, photos of the two parties in a variety of regular, every day, or special activities are very helpful. Do you go to the beach? Take pictures! Have you been to Medieval Times or Disney Land together? Grab that phone and take selfie or two. Spend time together on the holidays? Photos of the couple, with and without family and friends, are common and make for great evidence.
Additional BFR evidence might include the following:
Statements from joint accounts (bank, insurance, etc.)
Itineraries of travel to visit one another (flight, hotel rooms, receipts, etc.)
Affidavits and letters from friends and family attesting to the BFR
One major component of a BFR is the intention to marry, and the reason behind that intention. This may seem a little weird, but you don’t need to marry for love. USCIS is actually prevented from requiring proof of love between the parties. [CITE CASE LAW?] You can marry for just about any reason; money, pre-arrangement, family, kids, whatever. In reality, the only real reason you can’t marry for is immigration benefits; that is, marrying solely to bring someone to the US or to come to the US is prohibited.
Again, the reason for this is that marriage fraud is a major problem in immigration. Imagine you are a USC and you decide to try an online dating site. A person you match with seems great and you seem to have a lot in common, but they are overseas. You two decide you are in love and want to get married, and you want to bring them over to the US to live. No problem so far, right?
But then they say, “I’ll pay you $1,000 plus all costs to marry me and bring me to the US to live.” Now we have a problem. Regardless of whether this is a bona fide relationship, regardless of whether you intend to spend the rest of your lives together in true love, the $1,000 payment now makes the whole thing look like the marriage is simply for immigration benefits.
Worse yet, now imagine people are not truly getting married for appropriate purposes. There are individuals in the world seeking to take advantage of unwitting participants to get married simply for the immigration benefits. This is not permitted, and can cause all sorts of criminal problems as it’s a felony with stiff fines and prison time.
What is the process for applying for a K-1 visa, and how long will it take?
There are multiple steps to obtaining a K-1 visa, and even more for then obtaining a green card. As a reminder, the petitioner is the USC, and the beneficiary is the FN.
First, the petitioner files form I-129F, Petition for Alien Fiancé(e) with USCIS. Unfortunately, the processing times for this portion can be lengthy. Currently they are around 5 to 7 months, but this can change. Nothing else can be done in terms of the K-1 or green card until the I-129F is approved. Lengthy delays is one reason it is always important in immigration law to start making plans right away; nothing seems to move very quickly. The K-1 petition will be valid for four months after approval, and can be revalidated in four-month increments thereafter.
Second, once the I-129F petition is approved, the National Visa Center (NVC) will send notice and instructions to the beneficiary detailing how to apply for the actual visa, which is the document that goes into the FN’s passport. Applying for the visa has several parts. For instance, the FN must complete Form DS-160, Nonimmigrant Visa Application, and gather required documentation. These documents include, the passport, divorce certificates (if applicable), photographs, and evidence of the relationship to the petitioner, among other things. Further, the FN will take a medical examination and provide the sealed results to the consulate. Finally, the FN will need to attend an interview at the consulate. Once all these are done, approval and the visa, if appropriate, are granted at the interview.
Once the visa is approved, it will usually be valid for six months. While the visa could be revalidated if it expires, there is no guarantee that it will be done. Practically, the FN will want to enter US within that six month window. To avoid any issues with overstaying the visa, being out of status, and incurring unlawful presence, the marriage and application for the green card should take place within that same six month window. Then the marriage needs to take place within 90 days after entry into the US on the K-1 visa.
After getting married, the petitioner and beneficiary can file the green card application. This process includes filing the appropriate paperwork and going to another interview, among other things. There is too much involved with this process to detail it in this post. But there are a few key points to bear in mind.
What are the key points to remember regarding the K-1 and the green card?
If a FN is entering the US and getting married, it usually means they intend on living and possibly working in the US. But having a K-1 provides neither of those options in and of itself. Getting a K-1 is not the same as getting a green card. The K-1 is for the very limited purpose of entering the US to get married. Beyond that, there is no other immigration status. Further, the K-1 has no option for changing status, such as to another non-immigrant status.
Since the goal is usually to live in the US, the FN will need to take the additional steps of applying for a green card. This is called filing for Adjustment of Status; that is, the FN is here adjusting their status from a K-1 visa holder (temporary) to that of a lawful permanent resident (green card). And if the FN wishes to work or travel abroad while the green card application is pending approval, they will need to apply for those documents as well.
This is crucial to bear in mind: the K-1 alone does not provide permanent residence, citizenship, work authorization, travel authorization, or valid status in the US beyond the purpose of marriage. This is why applying for the green card is usually the next step following marriage, and should be done as soon as possible. This can provide a number of things.
First, while the green card application is pending, the FN is allowed to remain in the US once the K-1 visa has expired. This prevents the FN from accruing unlawful presence, which can cause major problems including a bar to re-entering the US if they leave at some point.
Second, with some narrow exceptions, the FN is not permitted to work in, nor travel out of and back into, the US while the green card application is pending unless granted permission by USCIS. This permission is in the form of work authorization and advance parole. The applications for these are filed at the same time as the green card application. Once approved, the FN is free to work and travel as desired (with some limitations). Since the green card application can take a long time, years in some cases, these documents will likely need to be renewed.
Finally, obtaining a green card is generally a necessary step toward becoming a USC. A FN may wish to remain a permanent resident indefinitely, but it is usually advised to seek citizenship for a number of reasons, including the right to vote. Further, a permanent resident will usually need to have their green card for three to five years before being eligible to apply for citizenship.
Again, the K-1 provides none of these things, but can be a great first step when seeking to start a life with a spouse in the US, with an eye to later becoming a permanent resident and then a citizen.
If you have questions about any of this, we enjoy giving out information, so give us a call at (404) 884-8315.