"Love Knows No Border"--The K-1 Fiancée Visa
This is Part 1 of the on-going "Love Knows No Border" series, where we'll take a look at the various immigration approaches couples can take to allow their loved one to gain access to the United States so the couple can be together in the United States. With this first installment of the series, we'll examine the K-1 visa, commonly known as the fiancée visa. To keep things relatively simple, we'll use the term "fiancée" to mean either a man or a woman. The K-1 non-immigrant visa category permits the fiancée of a U.S. citizen to enter the United States for a 90-day period of time to marry the U.S. citizen and apply for permanent residence.
A K-1 visa can be issued only after the applicants have proved the following three key elements:
- the parties have previously met in person within two years of the date when they filed the petition (unless a waiver is granted);
- the parties have a bona fide intention to marry; and
- the parties are legally able and actually willing to conclude a valid marriage in the United States within 90 days of the K-1 fiancée's entry to the United States.
Each of these three requirements is discussed below.
The "Previous Meeting" Requirement
In order to be eligible for K-1 status, the law requires that the couple must have met in-person within the two years prior to the filing of the petition. Meeting over the internet, either by video or email or over the telephone, typically will not suffice. The "previous meeting" requirement may be waived upon proof that compliance would: a) result in extreme hardship to the petitioner; or b) violate strict and long-established customs of the beneficiary's foreign culture or social practice (ie., this is typically, but not always, an 'arranged marriage' situation).
The "Freedom to Marry" Requirement
Both parties to the intended marriage must demonstrate that they are both free to marry and that they in fact intend to enter into a valid marriage within 90 days following the fiancée's entry into the United States. In terms of being 'free to marry', both individuals must demonstrate that they're not currently married to someone else. If one or both of the parties have been previously married, they'll have to provide proof that the previous marriage has been legally dissolved (ie., divorce). In addition, the parties will have to prove that there is no law which would prohibit the wedding from occurring. For example, issues related to age or gender may prohibit certain individuals from being married in the United States.
The "Bona Fide Intention to Marry" Requirement
Rightly or wrongly, the U.S. government casts a skeptical eye toward marriages between U.S. citizens and foreigners. When evaluating a petition for K-1 status, the government starts from the position that they believe the marriage is occurring illegally for immigration benefits. Therefore, in order to overcome this presumption, the applicants must prove the "bona fides" of their relationship and intent to be married. In other words, they must prove that their love is real, and the marriage is occurring for no reason other than the couple's legitimate desire to be together.
The U.S. government deals very harshly with those that are found to have entered to a "sham marriage" for immigration benefits. Both parties to a sham marriage can be prosecuted criminally. In other words, the penalty can apply to the person coming from abroad and/or to the U.S. citizen.
Admission to the United States
K-1 non-immigrants are admitted with a single entry visa for 90 days to marry the U.S. citizen petitioner. If the K-1 fiancée actually does marry the U.S. citizen petitioner within 90 days of entry, then the K-1 fiancée is eligible to apply for adjustment of status to permanent residency. If the marriage does not occur within 90 days, the K non-immigrant must leave the United States. If the marriage does not occur and the person in K-1 fiancée does not depart from the United States, the person can be removed (ie., deported).
In summary, the K-1 visa is one tool couples can utilize to bridge the divide and begin a life together in the United States. That said, the 90 day window of time feature of this particular visa does create some logistical hurdles. As a recently married man, I can attest to how daunting it would be to have to produce a wedding within 90 days. But it certainly isn't impossible, and it does allow the foreign fiancée to adjust status fairly quickly to that of a permanent resident, which is a pretty huge benefit. All in all, the K-1 visa is one option that should be considered when one half of the couple is living abroad and the other is a U.S. citizen. Check back soon for Part 2 of the "Love Knows No Border" Series, where we'll discuss the K-3 visa.
