Alex Halow Immigration Attorney — www.k1fianceevisas.com

K1 Fiancee Visa Basics and Eligibility

The K1 fiancee visa is available only to a fiancee of a U.S. citizen. It is usually the best option for immigration for an international fiancee who is currently outside the U.S., as well as for many of those who are here on a tourist or other type of non-immigrant visa.

If you are a U.S. citizen who is engaged to a citizen or national of another country, you can petition for a K1 fiancee visa. On approval, the K1 fiancee visa will allow your fiancee to travel to the U.S. for a period of up to 90 days. Provided that you marry within that 90 days, your fiancee will be eligible to become a legal permanent resident and can obtain permission to work while they are waiting for their legal permanent residence to be approved.

Eligibility for the K1 fiancee visa depends on the following requirements:

• the visa sponsor must be a U.S. citizen, and the beneficiary must be their fiancee;

• both the U.S. citizen and foreign fiancee must be free to marry, meaning that they are not currently married to anyone and have no other impediment to marriage (prior marriages that ended in a legally valid divorce or annulment, or because the other spouse passed away, are not a problem);

• the U.S. citizen and foreign fiancee must have met in person within the two years before the K1 fiancee visa petition is filed unless either:

  (a) meeting your fiancee in person would violate strict and long established customs of your fiancee's foreign culture or social practice; or

  (b) the U.S. citizen can establish that complying with this requirement will result in extreme hardship to them (please note that financial hardship alone is not considered to be an "extreme hardship" by the USCIS); and

• you and your fiancee must intend to marry within 90 days of your fiancee entering the U.S. using a K1 visa.

"IMBRA" Requirements and Restrictions

The "International Marriage Broker Regulation Act of 2005" (also known as "IMBRA") places restrictions on the number of times a single sponsor can use the K1 visa process, and requires K1 sponsors to disclose certain types of criminal history.

The restrictions and requirements of IMBRA include the following:

• IMBRA limits the number of K1 visa petitions a sponsor can file or have approved without seeking a waiver of the limits. A sponsor will need to seek a waiver of the limits if either:

  (a) they have filed two or more K1 visa petitions at any time in the past; or

  (b) they already had a K1 visa petition approved within the past two years.

  Waiver of these limits is at the discretion of USCIS, but ordinarily can be granted where "justification exists." However, if the visa sponsor has a criminal history including violent offenses, the waiver will only be granted in "extraordinary circumstances."

• IMBRA requires the visa sponsor to notify USCIS in their petition if they met their fiancee through an "international marriage broker." IMBRA's definition of who or what is an international marriage broker is very broad, and includes any dating or introduction website that focuses on introducing U.S. citizens or legal permanent residents to foreign nationals. Although there are some exceptions in the definition, they are relatively narrow, and whether or not a particular introduction or matchmaking service falls under the definition should be determined on a case-by-case basis.
• the visa sponsor must disclose whether or not they have ever been convicted by a court of law (civil or criminal) or court martialed by a military tribunal of any of the following crimes (even if the records of the conviction were sealed or expunged):

  (a) domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse and stalking;

  (b) homicide, murder, manslaughter, rape, abusive sexual conduct, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment or an attempt to commit any of these crimes; or

  (c) three or more convictions for crimes relating to a controlled substance or alcohol not arising from a single act.

  If the visa sponsor has any criminal history that falls under these categories, they will also have to provide certified copies of any related court and/or police records regarding that criminal history. The petition may be approved, even if this type of criminal history is present. However, any such criminal history will be disclosed to the prospective immigrant.

• if the visa sponsor was convicted of any of the crimes listed above, but they were being battered or subjected to extreme cruelty by a spouse, parent, or adult child at the time of their conviction, they must also state whether:

  (a) they were acting in self defense;

  (b) they violated a protection order issued for their own protection; or

  (c) they committed, were arrested for, were convicted of, or pled guilty to committing a crime that did not result in serious bodily injury, and there was a connection between the crime committed and their having been battered or subjected to extreme cruelty.

K1 Fiancee Visa Advantages

One question I am asked regularly is "Why can't my fiancee just come using a tourist visa or on the visa waiver program and marry me?" The problem is that a condition of both a tourist visa and the visa waiver program is your fiancee's sworn promise that they only plan to visit the U.S., not immigrate here. The Department of State ("DOS") and United States Citizenship and Immigration Services ("USCIS") assume that an intent to marry a U.S. citizen is the same as an intent to immigrate. If your fiancee enters the U.S. as a tourist, without disclosing that they are your fiancee and intend to marry you, they have committed visa fraud. If the USCIS later decides that this is the case, they could be removed (i.e., deported) and it will be almost impossible for them to come back, even though they are married to you.

In theory, it is possible for someone to obtain a tourist visa for the express purpose of coming to the U.S. temporarily to marry. The problem is, to do this safely, they must disclose their intention to marry when they apply for their tourist visa, and convince the consular interviewer that they truly intend to return to their home country after the marriage. This can be difficult to do, because the consulates know that the K1 fiancee visa is available as an alternative. Even if the tourist visa is approved, or the fiancee is eligible to seek entry to the U.S. under the visa waiver program, they may be turned back at the border when they try to enter the U.S. if the inspecting border officer does not believe they will return home after their wedding. Finally, if they enter the U.S. and marry, they will have to return home after their wedding, and will need to apply for a spousal visa to be able to return to the U.S. -- a process that is usually more complicated and lengthy than obtaining a K1 fiancee visa in the first place.

Using the K1 fiancee visa avoids all of the problems noted above, and is the most appropriate way for a foreign fiancee to come to the U.S. to marry.

The information on this web site regarding immigration, K1 fiancee visas, I-130 petitions, and K3 spouse visas is general, and cannot be substituted for legal advice.