New Law for K-1 Fiances

By Attorneys Robert L. Reeves and Julie R. Sparks

United States Citizenship and Immigration Services recently announced new policy changes aimed at ensuring compliance with the International Marriage Brokers Regulation Act of 2005. Under U.S. immigration laws United States citizens may petition foreign national fiancés for K-1 visas. K-1 visas permit qualifying fiancés to enter the U.S. for the purpose of marrying a U.S. citizen, provided the marriage will occur within 90 days of entry into the U.S.. United States citizens may also petition foreign national spouses for K-3 visas. These visas permit spouses to enter the U.S. while they await final processing of their green cards.

The International Marriage Brokers Regulation Act of 2005 (IMBRA) affects U.S. citizens who petition foreign national fiancés in three primary ways. First, U.S. citizen petitioners who met their fiancé via an international marriage broker must now disclose this information in their visa petition. An international marriage broker under IMBRA is considered to be any business, international or domestic, that charges fees for matchmaking services. Thus, petitioners who pay for such dating services, including online services, are now required to disclose this information on their petition.

Second, K-1 visa petitioners must now disclose whether they have been convicted of certain crimes, including sexual assault, domestic violence, child abuse, and drug and alcohol related convictions where the petitioner has three or more such convictions.

Third, the petitioner cannot have filed two or more previous K-1 visa petitions, providing the beneficiary/fiancé actually applied for the visa. In other words, if a petitioner has filed a K-1 petition for a previous fiancé, and that fiancé applied for a K-1 visa, the petitioner can only file one more K-1 petition. Further, if a previous petition has been approved, a second K-1 petition cannot be filed before two years have elapsed since the filing of the first petition. However, petitioners may apply for a waiver of the limitation on the number of petitions one may file. Except in extraordinary circumstances those who have a criminal record containing violent offenses against another will not be eligible for this waiver. Therefore, many petitioners who have a criminal record will be strictly subject to the limitation on the number of petitions one may file.

U.S. citizen petitioners who file K-3 petitions on behalf of their spouses must also disclose certain criminal convictions. Notably, there is no limit on the number of K-3 petitions one may file.

Under this new legislation, K-1and K-3 visa applicants will be notified of certain facts at the time of their visa interview. They will receive notification of the petitioner’s past criminal convictions, as well as the existence of any protective orders obtain against the petitioner. If a K visa petitioner has previously filed a petition that was approved, and a second petition is filed within ten years, the K visa applicant will also be informed of the number of petitions previously approved and filed by the petitioner.

While the primary changes affecting K-1 and K-3 visas are described above, other new rules and caveats exist. This new law applies to pending K visa petitions as well. U.S. Citizenship and Immigration Services has returned pending K visa petitions to the petitioners to request new information required by IMBRA. If you have a pending K visa petition, or if you are considering filing such a petition, you should seek legal counsel for advice regarding these new K-1 & k-3 rules.