K-1 & K-2 Visas (Fiancé(e)s and Their Children

 

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K-1 visas are for foreign nationals who are outside the United States, who are engaged to a U.S. citizen, and who seeks to enter U.S. solely with the intent of getting married with petitioner within 90 days after they arrive in the United States.

Couples who are already married are not eligible for fiance visas; they would file a relative petition and apply for an immigrant visa (green card) directly at the U.S. Consulate.

The U.S. citizen must file a petition with the U.S. Citizenship & Immigration Services on behalf of the fiance, along with all supporting documentation, to prove that there is a bona fide intention to marry within 90 days of finance’s entry and no legal impediments to marriage. The documentation must also prove the U.S. citizen and the alien fiance have previously met in person within the last 2 years of filing petition. USCIS, in limited cases, may waive the meeting in person requirement if it would cause extreme hardship to the U.S. petitioner or would violate strict and long established customs of the foreign fiance’s customs of his/her foreign culture or social practice.

Consular Visa Officers have complete discretion over reviewing the evidence and issuance of a K-1 visa.  In case of a K-1 Visa is denial at the U.S. Consulate, the U.S. citizen can always go to foreign fiance’s country, marry there, and then file a relative petition for his/her spouse.

After entry into the United States, the K-1 visa holder may marry only the original U.S. citizen K-1 petitioner. U.S. Immigration laws specifically precludes the K-1  from adjusting status with any U.S. citizen other than the original K-1 petitioner. If the marriage to the K-1 petitioner within 90 days after the entry doe not occur, the K-1 alien and minor children must leave the United States. It is not possible to extend the K-1 visa. Likewise, it is not possible to change to another nonimmigrant status.

Steps to Get a Fiance Visa:

1. U.S. Citizen Files  Visa Petition:
The petitioner must file properly completed visa petition with the USCIS. The petitioner and fiancee will need to file numerous other documentary proof with the USCIS to prove that the petitioner and fiancee qualify for the K-1 Fiancee Visa.

The waiting time for the USCIS to approve a K-1 visa vary greatly, anywhere from 2 months to seven or eight months, depending on the backlog in the USCIS Service Center. at the time of filing. More importantly, the case can be further delayed or denied by an error in the petition, or by not submitting the required documentation. An error in the petition will typically cause the USCIS to send the petitioner a Request For Additional Evidence (“RFE”). The USCIS sends out literally thousands of RFEs per year. Unfortunately, these cases are rarely as simple as they appear at first glance.  However, placing trust in an immigration lawyer is a smart decision in helping you to navigate the complex process. Attorney Gokhan Yazici at Yazici Law has extensive experience assisting  clients who came from all over the world with the K-1 petitions.

2. Foreign National Fiance Applies to U.S. Embassy/Consulate:

Once approval of the K-1 visa has been received, USCIS will forward the case to the National Visa Center, where government performs a background check on the foreign national fiance. Upon the completion of the background check the NVC then sends the approval to the U.S. Embassy or Consulate having jurisdiction over the fiancee’s place of residence.  Once the documents have been received by the Embassy, and the government’s background check on the fiancee has been concluded, the fiancee will be instructed to undergo a medical examination at a designated local clinic, to submit several new forms and numerous supporting documents, and to attend an interview with a Consular Official.

Providing all the forms and documentation are proper and correct, and everything goes well in the interview, the U.S. Embassy/Consulate will issue the K-1 Fiance Visa. The fiancee is then may travel to the United States. At the port of entry (s)he will present this visa to the U.S. Customs and Border Protection Officer.

3. The Marriage and Application for Permanent Residence in the United States:

The marriage must occur and an application for lawful permanent residence must be filed by the U.S. Citizenship & Immigration Services (CIS) within ninety (90) days after the fiance’s entry into the United States, but it is best not to wait until the last minute. There will be an interview at the local office of USCIS and if approved, lawful permanent residence will be issued at the interview. The “Green Card” will be mailed to the new permanent resident shortly after the interview.

K-1 Fiance Visa Frequently Asked Questions (FAQ):

Can I marry my fiance overseas and still bring her to the US on a K-1 visa?

No. K-1 fiancee visas are available only to persons who are planning to be married after the fiance arrives in the United States. After the marriage occurs, you will have to file an Application for Permanent Residence for your spouse. The one exception to this rule is that if the marriage was religious or social ceremony only, and the marriage was not registered with the local government, a K-1 visa may be issued. However, if you are already married, you can file a relative petition on  behalf of your foreign national souse.

My fiance is in the U.S. on the K-1 visa I obtained for her, but I am not sure I am
ready to get married. Can I extend my K-1 visa?

No, it cannot be extended. The K-1 nonimmigrant status can neither be extended nor changed. If you and your fiancee, who is here on a K-1 fiance, visa do not get married within 90 days of the K-1 status validity period, your fiance will have to leave the US.

My fiance was in the U.S. on a K-1 visa, but our relationships did not work out as we anticipated at the time and he/she went back to his/her home country. We have been in touch since then and now want to start the K-1 process again. Can I still petition for her?

Yes. However, the second visa will be more difficult to obtain. Your fiance needs to be well-prepared to explain at the interview why your relationship did not work out the first time and why you both think that it will lead to marriage the second time. In another words, you both need to show a particularly strong intention to marry.

My income level is too low to qualify as a sponsor under the government’s rules.
Is there any way to avoid this requirement?

You can not avoid the sponsorship requirements as you are the petitioner. However, if your income is not high enough, than it is possible to use an additional  joint-sponsor’s income and property to achieve the needed income.

When I marry my fiance while he or she is in the US on a K-1 visa, will she have to return home after the marriage in order to complete any other immigration papers?

No. Your spouse will not have to leave the U.S. (S)he may remain in the US on a permanent basis once the two of you have been married within 90 days of his or her arrival, and you have applied for a relative petition and your spouse has filed adjustment of status to permanent residence (green card).

I sponsored my ex-wife’s K-1 visa for the U.S. and she became a permanent resident thereafter.  Unfortunately, our marriage did not work out and we were divorced. I have recently met a lady outside the U.S. and would like to bring her to America on the K-1 fiance visa. Can I do this?

Yes, if more than 2 years has passed since the filing of your first K-1 visa petition for a fiance visa was approved. If  you cannot wait for 2 years, then, a waiver based on extreme hardship would be required.

My fiance has been denied a B-1/B-2 visitor visa for the U.S. before.  Will that affect our current K-1 visa petition?

Typically, no. If your fiance did not commit fraud or misrepresented any material fact during the B-1/B-2 visa interview, she will still be eligible for a K-1 Visa.

My fiance has a valid B-1/B-2 visitor visa for the US. Is she allowed to come to America while my K-1 visa petition for her is pending with the U.S. immigration authorities?

Yes. She may be allowed to enter, but she will face difficulty at the port-of-entry because she has to convince the immigration officials in the airport that she has no intentions to stay in the U.S. permanently.

My fiance was denied entry to the United States some time ago. An immigration officer at the port-of-entry said that the history of her previous visits showed that she had been spending the most of time in America rather than in her home country. Will that affect our pending K-1 visa petition?

No, it should not affect your current K-1 visa petition, as long as there are no other inadmissibility issues.

My fiance has overstayed her visa before. Is she eligible to come to the U.S. on a K-1 fiance visa?

It depends. If she overstayed her prior visa by less than six months this can often be overcome, if she overstayed over six months, she is barred from reentering the U.S. for either three years or ten years depending upon the overstayed time. An extreme hardship waiver may be possible depending on the circumstances of your individual case.

I have recently met someone online, but I am unable to travel to her/his country. Is there anything I can do to avoid the meeting in person requirement?

Probably not. USCIS, in limited cases, may waive the meeting in person requirement “if it is established that compliance would result in extreme hardship to the petitioner or that compliance would violate strict and long-established customs of the K-1 beneficiary’s foreign culture or social practice, as where marriages are traditionally arranged by the parents of the contracting parties and the prospective bride and groom are prohibited from meeting subsequent to the arrangement and prior to the wedding day.” In such situations, extreme hardship waivers are rarely granted by the USCIS. Financial hardship alone is usually insufficient.  In practice, it is available only to people who cannot fly at all due to their disability. As for the second grounds for a waiver,  people would often have a difficult time proving it to the USCIS’s satisfaction.

We can handle all your immigration matters

Immigration Law is one of the most confusing and complex areas of the law; hence K-1 fiance visa applications are complex in their requirements and documentation. Competent  and reliable legal counsel should be consulted before filing a K-1 Fiance Visa Application. At Yazici Law,  we understand that we are providing more than knowledgeable and skilled legal advice and highest caliber representation; we are helping  individuals and families to pursue their American dream and offer them practical solutions.

Yazici Law serves clients in all 50 states and abroad – we can help you where ever you are. We are here to help – no matter how complex your case is.

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Gokhan Yazici

Gokhan Yazici is an experienced attorney and counsellor practicing in the state of New York. He is specialized in U.S. Immigration Law, Corporate & Business Law, Business Transactions, Commercial Litigation, International Trade & U.S. Customs Law. Mr. Yazici holds an LL.B. degree from Istanbul University Law School and an LL.M. degree from Temple University James Beasley School of Law.