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Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?

A foreign national who is living overseas and is in a relationship with a U.S. citizen has two main visa options to come to the U.S., get married, and apply for a green card: the B-2 visitor visa and the K-1 fiancé(e) visa. Each route has advantages and disadvantages.

WHAT YOU NEED TO KNOW ABOUT THE B-2 VISITOR VISA

The B-2 visitor visa is for temporary visits only. Entering the U.S. on a B-2 visa and then applying for a marriage-based green card carry benefits and risks.

Benefits of the B-2 to Green Card Route

1. B-2 visa applicant or visa holder does not need a sponsor

An invitation letter or Affidavit of Support from an American sponsor is not required for a B-2 visa. Unlike K-1  fiancé(e) visa applicants, B-2 visa applicants are not required to prove a bona fide relationship with a U.S. citizen significant other.

B-2 visa applicants must instead qualify on the basis of their own residence and ties abroad.  There is no medical exam to complete or immigration-related petition for a U.S. citizen relative to file. They just need to file the online nonimmigrant visa application and pay the application fee.

Legitimate purposes of the B-2 include tourism, vacation (holiday), and visits with friends or relatives. Getting married to a U.S. citizen (or permanent resident) during your visit is not prohibited – as long as you intend to leave the country before your authorized period expires.

2. General desire (and even preconceived intent) to immigrate  – in and of itself – does not prevent B-2 visa holder from adjusting status as the spouse of a U.S. citizen

The B-2 to green card route works best when the foreign national decides to get married to the U.S. citizen only after entering the country. The couple might be undecided about the future of their relationship until they spend more time together during the visit. If the U.S. citizen surprised the B-2 visitor with a marriage proposal after he or she entered the U.S., the visitor could show the original intent was truly a temporary visit.

A general desire to remain in the U.S ., when there is an opportunity to do so legally, is not a problem. Furthermore, a fixed intent to immigrate does not bar immediate relatives (e.g. spouses) of U.S. citizens from adjusting status — unless there are other adverse factors that allow USCIS to deny adjustment as a matter of discretion.

3. Concurrently filing the I-130 and I-485 application (one-step petition/application) is the most streamlined way to get a marriage-based green card

Under normal circumstances, a B-2 visitor who is physically present in the U.S., after lawfully entering the U.S., may file a Form I-485 adjustment of status application at the same time the U.S. citizen files the Form I-130 immigrant petition with U.S. Citizenship & Immigration Services (USCIS). The B-2 to green card route is commonly used by immediate relatives of U.S. citizens.

The one-step filing of the I-485 and I-130 is a much more streamlined process than applying for a K-1 fiancé(e) visa, K-3 nonimmigrant visa, or immigrant visa at the U.S. Consulate overseas, based on marriage to a U.S. citizen. You may also stay with your spouse in the U.S. while your green card application is pending, instead of being separated from each other.

Drawbacks of the B-2 to Green Card Route

1.  B-2 visa applicant or visa holder must show non-immigrant intent

To get the B-2 visa or to enter the U.S. as a visitor, the foreign national must have nonimmigrant intent. You need to prove you have strong ties to your home country that you will not abandon and you will leave the U.S. before your authorized stay expires.

The B-2 visa to green card route works best if you are not yet engaged to the U.S. citizen or did not make specific plans to immigrate to the U.S. after entering the U.S.

Entering the U.S. as a visitor simply to marry a U.S. citizen (or permanent resident) does not violate U.S. immigration law, as long as you leave before your authorized stay expires. While this purpose is legitimate, it still carries risks and may lead to your being denied a visitor visa or entry into the U.S. as a visitor.

If you are applying for a visitor visa, you will be asked on the nonimmigrant visa application, and possibly at the visa interview, whether you have any immediate relatives in the U.S. This includes a fiancé(e). If the consular officer learns you have a U.S. citizen fiancé(e) or believes you will marry the fiancé(e)  during your visit, you will likely be denied a visitor visa. This is because the consular officer might suspect you have no intent of leaving the U.S., but will overstay, get married, and apply for a green card to live permanently in the U.S. with your American spouse.

At the U.S. port of entry, the customs officer may deny your entry for the same reason, even if you present a valid visitor visa. If the U.S. Customs & Border Protection (CBP) finds that you cannot show nonimmigrant intent and therefore lack the proper travel documents, it has two choices. It will either (a) allow you to withdraw your application for admission (and likely revoke your visa) OR, (b) issue an expedited removal order, which bars you from returning to the U.S. for five years, unless you obtain a Form I-212 waiver. Either way, you will be instructed to return home on the next available flight.

In certain situations, the CBP might also find that you willfully misrepresented the purpose of your visit to gain entry into the U.S. as a visitor. It may then deny your entry and issue an expedited removal order on this additional ground. If you cannot convince CBP to refrain from issuing (or to vacate) a charge of willful misrepresentation, you face a lifetime bar to getting a green card or immigrant visa. You will then need to qualify for and obtain an I-601 [INA § 212(i)] waiver of inadmissibility.

I-601 waiver applicants must show  their qualifying relative (U.S. or permanent resident spouse or parent) will suffer “extreme hardship” if they are not admitted to the U.S. as an immigrant. This waiver is challenging to get.

2. Fraud or willful misrepresentation to gain immigration benefits prohibits B-2 visa holder from getting a green card

Lying about the purpose of your visit or about whether you have an American fiancé in the U.S. could be deemed to be fraud or willful misrepresentation to gain immigration benefits.

The U.S. Department of State adopted a 30/60 day rule when a foreign national violates his nonimmigrant status. When a B-2 visa holder marries a U.S. citizen or applies for permanent residence within 30 days of entry,  the DOS presumes that he misrepresented his intent in seeking a visitor visa or entry. If the marriage or green card application occurred between 30 and 60 days of entry, the DOS does not presume, but may content there was misrepresentation. If the marriage or green card application occurred after 60 days, the DOS does not consider such conduct to constitute fraud or willful misrepresentation to obtain immigration benefits.

[UPDATE: On August 1, 2017, the DOS replaced the 30/60 day rule with the 90-day rule, which establishes a presumption of willful misrepresentation “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry.” If such actions occur within 90 days of entry, a consular officer “may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”]

USCIS is a separate agency from the DOS and the Board of Immigration Appeals has held that immediate relatives are exempt from the 30/60 day rule. Nonetheless, USCIS may use it as a guide.

If USCIS finds you committed fraud or willful misrepresentation to get the B-2 visa or to enter the U.S. as a visitor, this presents a permanent bar to getting a green card. You may also be placed in removal proceedings before the Immigration Court.

You may challenge the finding by showing you did not engage in immigration fraud or willfully misrepresented material facts when you applied for the visa or when you sought entry into the U.S. If you are unable to overcome the finding, you will need to apply for and receive an I-601 waiver of inadmissibility.

3. Concurrent filing of the I-130 and I-485 (one-step petition/application) involves strict eligibility requirements

The visitor visa is often misused as a way to enter the U.S., get married, and then apply for adjustment of status (green card) to avoid the longer process of applying for a K-1, K-3 or immigrant visa at the U.S. Consulate.

USCIS officers will carefully scrutinize your marriage to confirm it’s bona fide, i.e. entered into with the intent of establishing a life together as spouses, and not to circumvent U.S. immigration laws. You need to present documentary evidence of your shared residence, commingling of financial resources and other factors showing you have a real marriage. You also have to testify consistently and credibly as to the nature of your relationship and courtship.

As the I-485 applicant, you must show you are not inadmissible due to criminal convictions, health-related reasons, immigration violations, or other factors. The USCIS officer may conduct a full review your records (including your visitor visa application) and ask you questions at the interview to verify you are admissible to the U.S. It may investigate your true intent when you applied for the visa or sought entry on the visa.

An immigrant visa must also be available to the I-485 applicant.  If your spouse is a permanent resident, he or she may file an I-130 petition for you, but you may not file for a green card right away due to the backlog in the F2A (spouse of permanent resident) category.

When you are not in the immediate relative (e.g. spouse of U.S. citizen) category, you must be in lawful nonimmigrant status when you file an I-485. You will need to extend or change status to remain lawfully in the U.S. during the wait. Or you might have to wait until your permanent resident spouse becomes a naturalized U.S. citizen. Because adjusting status as the spouse of a permanent resident carries many obstacles, you likely will have to timely depart the U.S. and apply for an immigrant visa at the U.S. Consulate when one becomes available.

WHAT YOU NEED TO KNOW ABOUT THE K-1 FIANCE(E) VISA

The K-1 fiancé(e) visa is for the specific purpose of entering the U.S. to get married to a U.S. citizen and filing for adjustment of status. Entering the U.S. on a K-1 visa and then applying for a marriage-based green card carry benefits and risks.

Benefits of the K-1 to Green Card Route

1. K-1 visa applicant is not required to show nonimmigrant intent

When you apply for a K-1 visa, you are declaring immigrant intent. Getting married to a U.S. citizen and applying for permanent residence are expected. Unlike B-2 visa applicants, K-1 applicants are not required to present evidence of nonimmigrant intent or strong ties to their home country.

2. K-1 visa is the most appropriate visa for marrying a U.S. citizen in the U.S. and applying for a marriage-based green card

As a K-1 entrant, you bear no risk of being found to have committed visa fraud if you marry the U.S. citizen petitioner and apply for a green card, as you indicated you would.  Because you are required to marry the U.S. citizen within 90 days, the Department of State’s 30/60 day rule does not apply at all.

The K-1 to green card route is the most direct path to obtaining a marriage-based green card when you are engaged to a U.S. citizen.

3. Adjustment of status process for the K-1 entrant is generally simpler

A K-1 visa holder who completed the medical exam within the past year to get the visa is not required to do a medical exam for the I-485 application. You just need to submit the vaccination supplement, and not the entire medical report.

The U.S. citizen also does not have to file an I-130 immigrant petition after the marriage occurs. You simply file the I-485 application based on the approved Form I-129F petition, as long as the marriage occurred within 90 days of arrival in the U.S.

USCIS also has discretion to waive adjustment interviews for K-1 and K-2 entrants, i.e. fiancé(e) of U.S. citizen and children of fiancé(e). If the National Benefits Center (NBC) determines that the I-485 application qualifies for an interview waiver, and the Service Center agrees, the K-1 entrant may be granted a green card without an interview at the USCIS Field Office. This is never the case with the B-2 entrant, who must complete a marriage-based green card interview.

Drawbacks of the K-1 to Green Card Route

1. K-1 visa applicant must prove bona fide relationship with U.S. citizen

The K-1 visa option is available only if you are engaged to a U.S. citizen. It is not available if you are not committed to getting married (or you are already married), or if your fiancé(e) is just a permanent resident.

To get the K-1 visa, you must prove you have a real relationship with the U.S. citizen, communicate with each other often, and intend to marry within 90 days of your arrival in the U.S. Documentary evidence includes written correspondences, telephone records, and airline tickets and travel stamps showing the U.S. citizen has visited the K-1 visa applicant.

2. K-1 visa involves strict eligibility requirements

In the wake of the San Bernardino shooting on December 2, in which 14 people were killed after married couple Syed Rizwan Farook and Tashfeen Malik opened fire at a holiday party, Congress began to review the K-1 visa application process. Virginia Rep. Bob Goodlatte Goodlatte, chair of the House Judiciary Committee, opined that USCIS “sloppily approved” Farook’s K-1 visa petition for Malik.  Goodlatte noted that USCIS failed to verify whether the Pakistani national had met her U.S. citizen husband in person before applying for the K-1 visa.

The K-1 visa process requires the couple to meet in person at least once during the two years before the U.S. citizen files the Form I-129F petition for the fiancé(e). Waiver of the in-person meeting requirement is very hard to get.

For USCIS to approve the Form I-129F petition and for the U.S. Consulate to grant the visa, both the U.S. citizen petitioner and foreign national beneficiary must meet other strict eligibility requirements.

For example, a U.S. citizen who has filed two or more K-1 petitions at any time in the past or had any K-1 petition approved within the prior two years may not file a new K-1 petition unless USCIS grants a waiver of these limitations as a matter of discretion. No waiver will be given to a petitioner with a history of violent offenses except in limited circumstances.

3. K-1 to green card route involves a longer, three-step process

You cannot live with your U.S. citizen fiancé(e) in the U.S. until you get the K-1 visa to enter the U.S. The first step of filing the Form I-129F petition and getting it approved usually takes at least 4 to 6 months. The U.S. citizen has to submit a filing fee with the petition.

After USCIS approves the petition, the K-1 applicant must then submit the online nonimmigrant visa application, pay a visa application fee, complete a medical exam, and attend the visa interview.

The U.S. Consulate usually takes several months to schedule a K-1 visa interview. At the visa interview, the U.S. Consulate may require additional documents to confirm the applicant is still in a bona fide relationship with the U.S. citizen. Administrative processing and background checks by the U.S. Consulate can add several more months to the process.

After you enter the U.S. on a K-1 visa, you must marry the U.S. citizen within 90 days of your arrival. Then you must file your I-485 application and pay the filing fee to complete the green card process. If you fail to marry within 90 days, the U.S. citizen spouse will need to file a Form I-130 petition, following marriage outside the 90 days, so you may file a Form I-485 application. If you do not marry at all, you become removable from the U.S. and you cannot adjust through marriage to another U.S. citizen or through any other means.

Although USCIS may waive the adjustment of status interviews for K-1 entrants, it usually does not. Following the San Bernardino shooting, USCIS is expected to waive even fewer interviews. At the interview before USCIS, the couple must prove they have a bona fide marriage and the I-485 applicant must show he or she is admissible to the U.S.

Want to hear about this topic? Check out this video:

WHICH IS BETTER: B-2 or K-1? 

Whether to use the B-2 or K-1 to join your significant other in the U.S. depends on your situation. You need to weigh the advantages and disadvantages of each route when deciding which to take.

Consult an experienced immigration attorney to help you determine whether the B-2 or K-1 is more appropriate for you. Although both can lead to a marriage-based green card, each carries benefits and drawbacks.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Dennis Skley

From K-1 Fiancé(e) Visa to Green Card

engaged 5-1-2015When a foreign national is engaged to marry a U.S. citizen, he or she may travel to the U.S. on a K-1 fiancé(e) visa to get married and eventually become a permanent resident (green card holder).

The K-1 visa is not just for modern-day “mail-order brides” who met their American fiancé(e) through international matchmaking services or international marriage brokers.

The K-1 is also for couples who met each other through mutual friends and family members, chance encounters, or online dating sites that do not charge fees for international matchmaking services. K-1 cases can involve couples who were born in the same countries, attended the same college, or grew up in the same neighborhood. The K-1 visa is available to both opposite-sex couples and same-sex couples.

The immigration process starts with the filing of the K-1 visa petition, continues with the K-1 visa application, and ends with the filing of the Form I-485 application for adjustment to lawful permanent residence after the couple marries.

The general process is as follows: 

STEP #1 – FILING THE K-1 VISA PETITION

U.S. Citizen Files the Form I-129F Petition

To start the process, the U.S. citizen must file a Form I-129F petition, including filing fee and supporting documents, with the USCIS office that processes these case.

If the fiancé(e) has accompanying children younger than 21, the U.S. citizen must include their names on the Form I-129F to allow them to apply for a derivative K-2 visa.

Basic Requirements

The U.S. citizen must present evidence showing the eligibility requirements are met, such as a birth certificate showing U.S. citizenship, a written statement of intent to marry within 90 days of the fiancé(e)’s arrival in the U.S., and photographs of the couple together and airline tickets showing they met during the two years prior to filing the petition.

(USCIS may waive the two-year meeting requirement if it receives evidence showing this would result in extreme hardship to the U.S. citizen or would violate traditional marriage customs of either party. But this waiver is very difficult to get.)

Additional Requirements

The International Marriage Broker Regulation Act (IMBRA) imposes additional requirements and limitations. The Form I-129F instructions provide detailed information about IMBRA.

An international marriage broker (IMB) is a business that charges fees for dating, matrimonial or matchmaking services or social referrals for U.S. citizens (or permanent residents) and their foreign national clients. An example is Foreign Affair, the largest online international matchmaking service that features thousands of purportedly single women on its website, LoveMe.com.

Petitioners who met their fiancé(e) through an IMB must state this on the Form I-129F. They must also provide a signed, written consent form that the IMB obtained from the foreign national authorizing the release of personal contact information to them.

A U.S. citizen who previously filed K-1 petitions for two or more beneficiaries (at any time) or who received K-1 approvals within the two years prior to filing the current K-1 must apply for a waiver. The petitioner may submit with the Form I-129F an affidavit explaining the reasons for requesting the waiver.

The Adam Walsh Act Child Protection and Safety Act also prevents a U.S. citizen who has been convicted of a “specified offense against a minor” from filing a Form I-129F petition, unless he proves he would pose no threat to the foreign citizen fiancé(e) or accompanying children.

If applicable, USCIS must provide to the U.S. Consulate the petitioner’s criminal records and information related to certain crimes, such as domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse and stalking.

USCIS conducts a background check for national security, criminal records, and other information on both the petitioner and beneficiary, which can lead to significant delays in the Form I-129F processing.

USCIS Processes Petition and, If Approved, Forwards it to NVC

Upon receiving the Form I-129 petition, filing fee, and supporting documents, USCIS will issue a receipt notice to the petitioner.

During the processing, USCIS may issue a request for additional evidence and will normally give the petitioner 87 days to respond. If the petitioner does not respond, USCIS may issue a decision (likely a denial) based on the evidence in the record.

If USCIS denies the petition, the decision can be appealed to the Administrative Appeals within 33 days or the U.S. citizen may file a new petition with additional evidence.

If USCIS approves the petition, it then forwards it with an approval notification to the National Visa Center (NVC). An approved Form I-129F petition is valid for four months from the date USCIS issues the decision. The petition must continue to be valid at the time the K-1 visa is issued.

If the K-1 visa is not issued before the validity date expires, the U.S. Consulate may revalidate the petition in four-month increments as long as it is convinced the parties are still legally free to marry and intend to marry within 90 days of the foreign national’s arrival in the United States.

NVC Processes the Case and Forwards it to the U.S. Consulate

After processing the case, the NVC will forward it to the U.S. Consulate that has jurisdiction over where the fiancé(e) lives. The NVC will send a letter to the petitioner, indicating the case number and stating that it forwarded the petition to the U.S. Consulate.

STEP #2 – FILING THE K-1 VISA APPLICATION

After receiving the approved petition, the U.S. Consulate will send instructions to the foreign national to apply for a K-1 visa.

Foreign National Applies for K-1 Visa

The applicant must bring the following forms and documents to the visa interview:

Completed Form DS-160, Online Nonimmigrant Visa Application. The foreign national applying for the K-1 and any eligible children applying for K-2 visas must: (1) complete Form DS-160 online and (2) print the DS-160 confirmation page to bring to the interview.

An unexpired passport that is valid at least six months beyond the intended period of stay in the U.S. (unless there are country-specific exemptions).

Divorce or death certificate(s) of any previous spouse(s) for both the U.S. citizen petitioner and visa applicant.

Police certificates from  present country of residence and all countries where the applicant has lived for six months or more since age 16. (Police certificates are also required for accompanying children age 16 or older.)

Medical examination, preferably including vaccination. Prior to the interview, applicants must schedule and complete a medical examination by an authorized panel physician. The U.S. Consulate will provide instructions.

Vaccinations are not required for K visas, but will be required when adjusting to permanent resident status following marriage to the U.S. citizen petitioner. Therefore, applicants are encouraged to complete the vaccinations at the time of the medical examination.

Proof of financial support. During the visa interview, applicants must prove they have sufficient financial support and will not become a public charge in the United States (i.e receive government benefits or welfare).

The U.S. Consulate may request a Form I-134, Affidavit of Support, plus proof that the U.S. citizen petitioner’s income is 100% of the federal poverty guideline.

Consular officers are also aware the U.S. citizen must submit a Form I-864, Affidavit of Support, when the foreign national applies for a green card following the marriage. So they may require the applicant to show the U.S. citizen petitioner’s income is 125% of the federal poverty guideline (unless the petitioner is on active duty in the U.S. Armed Forces.)

Additional items include two passport photographs of the applicant, evidence that the relationship with the U.S. citizen petitioner is genuine, and payment of the non-refundable visa application fee.

Foreign National Attends Visa Interview

At the visa interview, the applicant will be asked questions about the relationship, including how the couple met,  how often they communicate with each other, and when they plan to marry.

The U.S. Consulate may also require the applicant to present additional documents showing the couple continues to share a bona fide relationship, especially if several months have passed since USCIS approved the Form I-129F petition.

U.S. Consulate Issues Decision

Discrepancies between the information in the K-1 petition and the applicant’s circumstances might cause the consular officer to question whether the relationship is bona fide or might cause the U.S. citizen petitioner to choose not to proceed with the marriage. These include the visa applicant having one or more children not named in the petition, a prior undisclosed marriage (even if it has been annulled or ended by divorce or death), or a current pregnancy.

When there are discrepancies, consular officers may use their discretion in deciding whether to return the K-1 petition to USCIS. They should, however, first contact the U.S. citizen to verify whether he or she was aware of the particular circumstance(s) and whether he or she still intends to proceed with the marriage. If they receive a satisfactory answer from the U.S. citizen, consular officers do not have to return the petition to USCIS.

Consular officers will return the K-1 petition to USCIS for reconsideration if they doubt the relationship is genuine or if the U.S. citizen indicates that he or she no longer intends to go forward with the marriage.

The Consulate also conducts background checks on the K-1 visa applicant, including fingerprints and other checks similar to those conducted by USCIS, as well as checks of its systems and other interagency databases.

The Consulate will not issue the K-1 visa to a foreign national who is inadmissible to the U.S., unless he or she qualifies for a waiver.

Inadmissibility grounds include having a communicable disease, a dangerous physical/mental disorder, a drug addiction, or a criminal record (including crime involving moral turpitude, drug trafficking, or prostitution). They also include previous violations of U.S. immigration laws (e.g. 3/10 year bar due to accrual of unlawful presence in the U.S. that lasted more than 180 days) and failure to show he or she will not become a public charge.

If the Consulate approves the case, the foreign national and accompanying children will receive a K-1 visa and K-2 visas, respectively. The visa is valid for six months and is good for one entry into the U.S. The consular officer will give the visa holder a sealed envelope containing a copy of the petition and other paperwork to present at the U.S. port of entry.

STEP #3 – FILING THE APPLICATION FOR ADJUSTMENT TO LAWFUL PERMANENT RESIDENT STATUS

Marriage Within 90 Days

The couple must marry within 90 days after the K-1 visa holder enters the U.S. The K-1 status cannot be extended. If the marriage does not occur within 90 days, the foreign national becomes removable from the United States. He or she may still marry the U.S. citizen petitioner after 90 days, but an I-130 immigrant petition must be filed to continue the green card process.

If the foreign national leaves the U.S. before marriage, he or she will have to apply for a new K-1 visa.

Foreign National Submits Form I-485 Application to USCIS After Marriage

Once married, the foreign national becomes an immediate relative (i.e. spouse of a U.S. citizen). He or she may then submit the Form I-485 application for permanent residence, with filing fee and supporting documents, to USCIS.  The foreign national may also file for advance parole to travel outside the U.S. and re-enter the U.S. before the green card is issued. He or she may also apply for employment authorization to lawfully work in the U.S. while the green card application is pending.

After receiving the Form I-485 application, USCIS will issue a receipt notice and then a biometrics appointment notice instructing the foreign national to get his photograph and fingerprints taken at a USCIS Application Support Center. In some cases, USCIS may issue a Request for Evidence to continue processing the application.

Form I-485 Interview with USCIS

It normally takes at least 3 to 6 months for USCIS to schedule a Form I-485 interview. But in some cases, a year or more could pass before the interview occurs.

The green card applicant will receive the interview notice, with instructions on the documents to bring.  He or she will also be instructed to bring the U.S. citizen spouse so the USCIS officer may interview them both.

The officer will ask questions to determine whether the applicant’s marriage to the U.S. citizen is bona fide (i.e. entered into with the intent of establishing a life together as spouses, and not solely or primarily for immigration benefits). The officer will also go through the questions on the Form I-485 to verify whether the applicant is admissible to the United States.

USCIS may waive I-485 interviews for K-1 visa entrants. But the documentation must be strong enough to get an approval without an interview.

USCIS Issues Decision

USCIS will approve the Form I-485 application and issue the green card if it determines the applicant’s marriage to the U.S. citizen is bona fide and the applicant is admissible to the United States (or qualifies for a waiver of inadmissibility).

If the marriage is less than two years old at the time USCIS approves the Form I-485, foreign nationals will be granted “conditional” permanent residence. This means they will have to file a Form I-751 petition to remove the conditions on the permanent residence before the green card expires, but no earlier than 90 days before the expiration. If the couple divorces, the green card holder may file for a waiver of the joint filing requirement to get the conditions removed.

If USCIS denies the Form I-485 application, it may issue a Notice to Appear in removal proceedings. The applicant may renew the Form I-485 before an immigration judge in removal proceedings. Otherwise, the applicant may re-file the Form I-485 with USCIS or ask USCIS to reopen and/or reconsider its decision. There is no appeal process.

* * *

The K-1 was created to allow the foreign national fiancé(e) to enter the U.S. more quickly and be spared a long separation from the intended U.S. citizen spouse. But the process still requires a lot of documentation and can involve complications and setbacks. Furthermore, the K-1 holder is subject to removal from the United States if the I-485 process is not completed successfully or is not initiated at all.

An experienced immigration attorney can help you with filing the K-1 visa petition, applying for the K-1 visa application, and filing for permanent residence. Although information is readily available online, a skilled attorney knows how to deal with unique situations, prevent unnecessary delays, and maximize the chances of approval in the K-1 to green card process.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: J.K. Califf

K-1 fiancé(e) visas aren’t just for mail-order brides (but still carry strict requirements)

fiance 4-27-15U.S. citizens may bring their foreign national fiancé(e) living abroad to the United States by filing a K-1 visa (Form I-129F) petition.

Even though the K-1 is a nonimmigrant visa, it’s one of the fastest ways for a foreign national to become a permanent resident of the United States.

The K-1 is often associated with modern-day “mail-order brides” (women from less developed countries who post their profiles online — usually on international agencies’ websites — in search of a husband from developed countries, such as the United States).

Common concerns about international relationships are that the woman is a victimized “mail-order bride,” lured away from her home country by a potentially abusive American spouse, or the foreign spouse is a scammer who preys on the American suitor for financial gain or for immigration benefits.

The K-1, however, is not just for “mail-order brides” or for international couples who might have met through an international marriage broker.

The K-1 is also for foreign men and women who met their U.S. citizen fiancé(e)s in other ways, such as online chatting, chance encounters while visiting each other’s countries, and introductions by family members or mutual friends. The K-1 is also for couples who are from the same countries and might have courted each other before one became a U.S. citizen.

Regardless of how the engaged couple met, the K-1 visa application process is the same. Although there are additional restrictions in certain cases, the basic requirements are strict and apply to all.

Basic Requirements 

To qualify for a K-1 visa, the U.S. citizen petitioner and visa applicant must satisfy certain basic requirements. They are as follows:

Basic requirements for the K-1 petitioner (U.S. citizen)

1. You are a U.S. citizen by birth, naturalization, or derived citizenship.

You need to provide proof of your U.S. citizenship, such as a birth certificate, U.S. passport or naturalization certificate.  If you are a lawful permanent resident, you cannot file a K-1 petition to bring your fiancé(e) to the United States.

2. You are able to financially support your fiancé(e) so he/she is unlikely to become a public charge, i.e. receive government assistance or welfare.

U.S. Consulates typically require the K-1 visa applicant to submit a Form I-134, Affidavit of Support, from the petitioner.  On the Form I-134, petitioners must show they earn and/or own assets (e.g. bank accounts, real-estate property, stocks, bonds) that is at least 100% of the minimum income listed for their household size in the federal poverty guidelines.

U.S. consular officers, however, are aware that you will have to meet a higher, 125% requirement a few months later, after your fiancé(e) marries you and then applies for a green card . Therefore, the U.S. Consulate could insist that you meet the 125% requirement before it issues the K-1 visa. (The threshold is still 100% if the petitioner is on active duty in the U.S. Armed Forces.)

Basic requirements for the K-1 beneficiary (foreign national)

1. You are living outside the United States. Filing for a K-1 visa is not necessary or permitted if you are already in the U.S.

2. You do not have a criminal history that will make you inadmissible to the United States. In general, foreign nationals who are convicted of or who admit having committed a crime involving moral turpitude (other than a purely political offense) or a violation related to a controlled substance are inadmissible. There are exceptions and waivers available in some cases.

3. You have not violated U.S. immigration laws that will make you inadmissible to the United States. For example, if you were previously in the United States and overstayed your authorized status, this could affect your K-1 visa application.

4. You do not pose a health risk to the general public that will make you inadmissible to the United States. As part of the K-1 visa application, you will need to complete a medical examination and submit the results to the U.S. Consulate.

You may be denied a K-1 visa if you have a communicable disease of public health significance, lack required vaccinations, have or have had a physical or mental disorder that causes you to engage in behavior that might be harmful to yourself or others, or have a history of drug abuse or addiction.

Even if you have never been diagnosed with an alcohol- or drug-related health issue, a record of alcohol- or drug-related arrests or criminal offenses can result in your being found inadmissible on health grounds.

There are waivers available for all health-related grounds of inadmissibility except drug abuse and addiction.

Basic requirements for both the K-1 petitioner and beneficiary

1. You must have met in person, at least once within 2 years or 24 months of filing the K-1 petition.  Evidence may include your written declarations stating the exact date(s) you met; photographs of the two of you together; and copies of airline tickets and stamps in your passport showing you visited each other.

The petitioner can travel to the foreign citizen’s country; the foreign citizen can travel to the United States for a temporary visit (but getting a B-2 visitor’s visa will be challenging); or the couple can meet in a third country.

USCIS may grant a waiver of the in-person meeting requirement if the couple can prove:
a. It would violate strict and long-established customs of the U.S. citizen or fiancé(e)’s foreign culture or social practice; or
b. It would result in extreme hardship to the U.S. citizen (e.g. citizen has a serious medical condition that makes traveling difficult and the foreign citizen is unable to obtain a visitor’s visa to enter the United States).

Getting a waiver is usually difficult, so it’s better to do what you can to meet in person.

2. You must both be legally free to marry. This means you are both single, you submit proof of annulment or divorce from all prior spouses, or you provide proof that your prior spouse has passed away.

3. You must have a genuine intent to marry within 90 days of the K-1 visa holder arriving in the United States. Evidence of your intent to marry within 90 days of the foreign citizen’s arrival in the U.S. may include a declaration from both of you, correspondences with wedding planners, and wedding invitations. Because the K-1 visa processing time is uncertain, the couple also need to be flexible about the timing of the marriage.

The marriage must occur in a state where the marital union is legally permitted. For example, same-sex couples may not marry in a state that permits only opposite-sex marriages.

Additional Requirements

The International Marriage Broker Regulation Act of 2005 sets forth additional requirements. If you met through the services of an international marriage broker (IMB), you must state this on the Form I-129F and the fiancé(e) must be given a brochure about domestic violence.

An “international marriage broker” means a corporation, partnership, business, individual, or other legal entity, whether or not organized under U.S.  law, that charges fees for providing dating, matrimonial, matchmaking services, or social referrals between U.S. citizens or nationals or permanent residents and foreign national clients by providing personal contact information or otherwise facilitating communication between individuals.

U.S. citizen petitioners must also submit certified criminal records if they have ever been convicted of certain crimes, such as domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse and stalking.

The Form I-129F instructions provide detailed information about IMBRA requirements.

The Adam Walsh Child Protection and Safety Act of 2006 prohibits a U.S. citizen who has been convicted of any sexual offense against a minor child, under the age of 18, from filing a K-1 visa petition. A waiver to this restriction is possible, but is rare.  To get the waiver, the U.S. citizen must prove that despite the conviction, he or she poses no threat or harm to the fiancé(e).

Limitations of the K-1 Visa

Validity of the K-1 Petition Approval

The Form I-129F petition is valid for four months from the date USCIS approves it (or from the date of last action by the U.S. Consulate). During these four months, the couple should apply for the K-1 visa. But a U.S. consular officer can extend the validity of the petition in four-month periods if it expires before visa processing is completed.

Validity of the K-1 Visa

Fiancé(e)s have six months after the K-1 visa is issued to enter the United States. They may not enter the U.S. on an expired K-1 visa, which cannot be extended.

The K-1 is a single-entry visa, so it may not be used for travel abroad and re-entry into the United States.

Marriage Within 90 Days of Arrival

Following entry into the U.S. on a fiance(é) visa, the foreign national’s K-1 status cannot be extended. He or she must marry the U.S. citizen petitioner within 90 days of arriving in the United States before applying for a green card.  Fiancé(e)s who leave the U.S. before the marriage occurs will have to apply for a new K-1 visa.

If 90 days pass without the couple getting married, the K-1 visa will no longer be valid and the fiancé(e) will be considered “out of status”. He or she then becomes subject to removal from the U.S. and is likely to have other immigration problems.

If the couple still intends to marry after the 90 days and do get married, the U.S. citizen petitioner must file a Form I-130 concurrently with the foreign national’s Form I-485 application for adjustment to permanent resident status.

Marriage to the U.S. Citizen Petitioner (and no one else)

If the marriage does not occur or is terminated before the green card is granted, the K-1 visa holder may not adjust to permanent resident status or change to any other non-immigrant status. There are only a few exceptions, such as when the foreign national qualifies for certain types of immigration relief, such as asylum or an I-360, VAWA self-petition.

If the foreign national meets and marries another U.S. citizen, after entering the United States on a K-1 and divorcing the original K-1 petitioner, she must return to her home country and start over the process.

Multiple K-1s

Although the U.S. citizen may file an unlimited number of K-1 petitions, this complicates the process. The U.S. citizen may file a second K-1 visa petition over 2 years after approval of the first K-1 visa petition. If you want to file a K-1 petition in less than two years, you will have to apply for a waiver. If you have filed two or more K-1 petitions at any time in the past, you will need to apply for a waiver.

The foreign national may not file for multiple K-1 visas at the same time. If you have two different U.S. citizens filing a K-1 petition for you at the same time, the U.S. Consulate will return the petitions to USCIS and will not schedule you for a visa interview, even if USCIS approves both petitions.

K-1 Visa Featured in Entertainment Media

The TLC show 90-Day Fiancé and the documentary Love Me feature the lengths Americans and their foreign citizen fiancé(e)s must go to live together in the United States.

90-Day Fiancé: In this TLC show, U.S. citizens have filed K-1 visa petitions for their fiancé(e)s to travel to the U.S. to get married and live with them for the first time. The potential spouses are from various countries, including Russia, the Philippines, Colombia, Ukraine and Brazil.

Love Me: This documentary follows Western men and Ukrainian women as they embark on an unpredictable and riveting journey in search of love. Each character’s experience exposes the myths and realities of the “mail-order bride” industry, while also exploring the much deeper, human story that is too often overlooked. Two international couples end up going through the K-1 visa process.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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 Photo by: Daniel Lee