Alex Halow Immigration Attorney www.k1fianceevisas.com
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. It allows a 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 every 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) can become much more complicated, requiring
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
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. 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. However, the current policy is not to do this, and most employers will not recognize such stamps as valid permission to work in the U.S. for K1 visa holders. As an alternative, a K1 visa holder can apply for an employment authorization
document after their entry based on their K1 status. The catch 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 normally valid for at least one year. Therefore, if it is important
to your fiancee to 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 as soon as you can after that.
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. Although the Child Status Protection Act has been interpreted as not applying to K2 visa holders, in June 2011 the Board of Immigration Appeals issued a decision that held that, as long as a K2 visa holder entered the U.S. using their K2 visa before they turned 21, they are eligible to adjust their status. This decision represents a major, positive change in the law in this area. If your fiancee has any children between the ages of 18 and 21 who want to immigrate to the U.S. with them, it may be critically important for you to pursue a K1 visa versus marrying outside the U.S., as that may be the only way for those children to immigrate to the U.S. based on your marriage.
Do I HAVE to hire 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 legal 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. 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. The 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. If you are subject to a travel bar, the K1 visa may not be 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. 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).
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 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
Can I submit my K1 application to any
USCIS Service Center? No. Currently, all K1 (and K3) petitions are sent to a USCIS lock-box in Texas. The USCIS then sends the petition to whichever service center is currently processing K1 petitions for the geographic area in the U.S. the petitioner lives (or the last place they lived in the U.S., if they are filing from outside the U.S.).
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 of the U.S. citizen and to share any adverse information they find with the foreign national before making an introduction. 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 on their K1 petition. 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, and are generally obtainable, but are much harder to get if the petitioner has any history of domestic violence or other serious criminal violence.
How could IMBRA affect my K1 or K3 visa case? For the majority of K1 applicants, IMBRA does not affect their case much. 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, IMBRA's primary concern is that this information be disclosed to the foreign national; it does not seem to be resulting in a higher denial rate for first time K1 filers. Whether or not the couple met through an "International Marriage Broker" also does not seem to be affecting K1 approval rates. IMBRA does affect petitioners who have used the K1 (or K3) visa process multiple times, but usually is not a major obstacle unless they have a serious criminal history.
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.