Alex Halow Immigration Attorney — www.k1fianceevisas.com
Member of AILA, American Immigration Lawyers Association

K1 Visa FAQs:

What is a K1 fiancee visa? The K1 is a visa intended for use by the fiancee of a U.S. citizen. The K1 visa allows that fiancee to travel to the U.S. for a period of up to 90 days, for the purpose of marrying the U.S. citizen. Provided the couple marries within 90 days of the fiancee's arrival, the immigrant fiancee can "adjust status" and become a legal permanent resident of the U.S.

Who should use the K1 fiancee visa? Although each case is unique, for most couples that plan to marry where the fiancee is a foreign citizen or national and is currently outside the U.S., the K1 fiancee visa is the most appropriate and fastest way to immigrate. If both members of the couple are currently in the U.S., the question of whether or not to use the K1 visa (which would involve the prospective immigrant returning to their home country and applying to the consulate there) can become much more complicated, requiring careful analysis.

What is the International Marriage Broker Regulation Act? The International Marriage Broker Regulation Act ("IMBRA") is a law that took effect on March 6, 2006. IMBRA is intended to address perceived problems with K1 visas being used by U.S. petitioners with a history of domestic violence or of severe criminal violence, as well as petitioners perceived to be abusing the K1 (or K3) visa system through multiple filings. IMBRA requires "marriage brokers" (a broadly defined term that includes any corporation or individual engaged in "marriage brokering" or "matchmaking" if their primary focus is on introducing U.S. citizens to foreign nationals) to conduct a background check regarding the U.S. citizen and to share any adverse information they find with the foreign national before making an introduction between the U.S. citizen and the foreign national. It also requires U.S. citizen petitioners to disclose whether or not they met their fiancee through a "marriage broker", and whether or not they have any adverse criminal history in their past. IMBRA also places numerical limitations on the number of K1 (or K3) petitions a U.S. citizen can file within a two year period and also over their entire life. Waivers of the numerical limitations are available, but because the law is so new, as of August 2006 it is not clear how easy (or difficult) it will be to obtain a waiver if one is required. One thing that is clear is that it will be harder to obtain a waiver if the petitioner requesting it has any history of domestic violence or serious criminal violence in their past.

How could IMBRA affect my K1 or K3 visa case? Although IMBRA is a new law, and is still being implemented, my own opinion as of August 2006 is that for the majority of K1 applicants, it will not make that much difference. Most K1 applicants are filing their first application, and do not have any adverse criminal history of the type IMBRA is concerned about. Also, even if the petitioner does have some adverse criminal history, on its face IMBRA's primary concern is that this information be disclosed to the foreign national. It is not clear yet whether the presence of adverse criminal history is going to result in more visa denials, although if it is present, the petitioner should expect that processing will be more complicated and difficult. Probably the biggest negative impact of IMBRA will be on petitioners who have used the K1 (or K3) visa process multiple times in the past, and who need to apply for a waiver to use it again. That will be especially true for petitioners who have filed multiple petitions and have any negative criminal history. You can find more information about the basics of IMBRA on my Home Page.

How long will it take to obtain a K1 fiancee visa? Exact processing times can vary greatly, depending on where the application for the K1 fiancee visa is filed and the consulate to which the intending immigrant must apply to obtain their visa. The busier the appropriate United States Citizenship and Immigration Services ("USCIS") service center and the consulate are, the longer processing will take. You can find more information (including a listing showing the current processing times at USCIS service centers) about this topic on the Processing Times page of this web site.

Will my fiancee be able to work in the U.S. using their K1 visa? In theory, a K1 visa holder can obtain permission to work during their initial 90 day stay on a K1 visa. A few years ago, it was possible for a K1 visa holder to do this by asking that their passport be stamped "permission to work granted" upon their entry. Although this still works in a minority of cases, USCIS' current policy is not to do this. As an alternative, a K1 visa holder can apply for an employment authorization document after their entry based on their K1 status. The catch here is that the processing time for the application can be 60 - 90 days, so that by the time the document is granted, the K1 visa holder's initial 90 day period of stay will be almost over. However, after the K1 visa holder and their U.S. sponsor have married, the K1 visa holder can apply for permission to work as part of their adjustment of status application. An employment authorization document granted as part of an adjustment of status application is valid for an entire year. Therefore, if it is important to you that your fiancee be able to work after they have arrived, the best thing to do is marry early on during their authorized 90 day stay and apply for permission for them to work in conjunction with an application to adjust their status.

My fiancee has children. Can they immigrate with him/her? Unmarried children under the age of 21 can immigrate with their parent using the K2 visa. K2 visas are usually issued in conjunction with a K1 visa and can be requested as part of the initial K1 visa application to the USCIS. It is also usually possible for children of your fiancee to obtain a K2 visa and "follow to join" your fiancee for up to 1 year after your fiancee's K1 visa was issued. Once here, the children can apply to become legal permanent residents provided their parent marries you within the required 90 days.

Do I have to have an attorney file my K1 Visa Application? Can't I just do this on my own? Technically, you do not need to have an attorney help you with your immigration case. There is no law or regulation that requires you to obtain representation. You can, if you want, "go it alone." However, just because you CAN do something does not necessarily mean that you SHOULD. The main cause of delay (and denial) in fiancee visa cases is an inaccurate and/or poorly prepared application. When you hire an attorney to represent you, you decrease the amount of pain, stress, and uncertainty you will experience as you go through this process, and the chances that everything will be prepared properly and your case will be approved without delays are increased.

Like any other area of the law today, immigration law has become very complex. This is particularly true in light of the new "IMBRA", which took effect in March 2006. Unlike other areas of the law, however, immigration can appear deceptively straightforward; many people (and non-lawyer "immigration consultants") think it is just a question of "filling out paperwork." Unfortunately, many of them find out the hard way, through delays and denials, that they do not know how to properly analyze their case or fully understand the appropriate laws and regulations. Perhaps the best question to ask yourself if you are contemplating filing a K1 petition on your own is whether you would "go it alone" in another type of legal matter, like suing a company or defending yourself against a lawsuit. If you wouldn't "go it alone" under those circumstances, why would you here, in a situation where your very relationship with your loved one and future happiness are on the line?

I visited the U.S. previously and over-stayed my visa. Will this be a problem for obtaining a K1 visa? Although any over-stay can present a problem, whether or not this is a problem for you will most likely depend on the length of your prior over-stay. If you over-stayed by less than 180 days and had no other immigration problems, it will probably not prevent you from obtaining a K1 visa. However, if you over-stayed by more than 180 days after April 1, 1997, you are subject to a "travel bar" that could prevent you from returning to the United States if you have left. In such cases, the K1 visa is not a good option (especially if you are still in the U.S.). However, even if the K1 visa is not available to you, it may be possible for you to obtain a waiver of the travel bar in conjunction with another method of immigrating (although your U.S. citizen fiancee will have to marry you outside the U.S. first, and there is no guarantee the waiver will be granted). You should seek out legal advice before filing a K1 visa application if you have over-stayed a visa (or your visa waiver program time) in the past.

What if I was actually deported? Although prior deportation is a serious obstacle to immigrating to the U.S., it is possible to overcome this barrier in some cases. Whether or not it is a viable option in your particular case will depend on the facts and circumstances surrounding your deportation. If your deportation was based on a serious crime (or even a series of minor crimes), it will be very difficult to overcome.

What if I have had some criminal problems in my home country? Criminal problems can represent a bar to immigration. However, the degree of the problem they represent will depend on the type and nature of the crimes. Minor crimes (especially if you committed them when you were very young) can probably be overcome, but need to be analyzed and dealt with carefully. Serious crimes present a major obstacle, which it may not be possible to overcome.

Can I submit my K1 application to any USCIS Service Center? No. Where you submit your K1 application is dictated by where you live; you cannot pick and choose which Service Center to use. Unfortunately, the processing times at USCIS Service Centers can vary widely, so this means that at any given time, people living in one part of the U.S. face a much longer USCIS processing time than people living in another part. The best thing you can do about this situation is to complain to your Senator and/or congressional representatives about the backlogs at the USCIS. They have the power to give USCIS more resources to do its work, and/or exercise some control over how USCIS allots those resources.

Why can't I just claim to live in another part of the country and use the service center there? Because this would be fraud, and could subject you to serious fines and/or imprisonment (as well as having a disastrous effect on your case if you are caught). The only way to safely and legitimately "change" which service center you can use is to move to a state served by the other service center and establish residence there (in other words, live there, vote there, work there, pay taxes there, etc.). For most people, this is not a practical alternative, and even if it is, they would be better off simply filing their K1 petition as soon as possible than going through the time, expense, and delay of making such a radical move.

Answers to Additional FAQs: You can find links to other K1 visa FAQS provided by other people on the "Other Useful Links" page on this web site.

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