By Attorneys Robert L. Reeves and Elsie Hui Arias
With Valentine’s Day coming around the corner, many happy couples will soon be getting engaged.? Along with planning the wedding, U.S. citizens engaged to a foreign national may also need to consider the process of bringing their significant other to the United States for marriage.? This article will cover the requirements and procedures for the “K-1” fiancé/fiancée visa.
??????? Only U.S. citizens (USC) can file for a visa petition on behalf of their fiancé/fiancée; unfortunately, under current immigration law, permanent residents do not have the privilege of petitioning their fiancé/fiancée.? The USCIS will grant the fiancé/fiancée visa where: (1) the USC and foreign national can demonstrate a genuine intention to marry in the U.S.; (2) both persons are legally free to marry in the state of intended marriage; and (3) the couple has personally met at least once in the two-year period immediately preceding the filing of the K-1 visa petition.? The latter requirement can be waived where there is a long-standing cultural custom that prohibits seeing the future spouse, or where exceptional circumstances exist (e.g., medical hardship).
??????? Once the USCIS approves the K-1 visa, the file will be forwarded to the National Visa Center for additional document processing from the petitioner, and then finally sent to the appropriate U.S. consulate of the country where the beneficiary resides.? The beneficiary will be interviewed for the visa and is subject to the same grounds of inadmissibility as an intending immigrant, e.g., prior violations of U.S. immigration law or public charge issues, etc.
??????? Once the K-1 visa is issued, the fiancé/fiancée must marry the USC petitioner within 90 days of entering the United States.? The USC spouse can then petition the beneficiary for adjustment of status to permanent residency.? If the couple does not get married, the K-1 beneficiary must leave the U.S.; he/she cannot change status to another nonimmigrant status nor adjust status through another petitioner.
??????? The USC can also petition their fiancé/fiancee’s unmarried children under the age of 21 years old for a “K-2” visa.? A key issue to remember here is that the K-2 children must adjust their status to permanent resident before they turn 21 years old; the Child Status Protection Act (CSPA) does not protect K-2 beneficiaries from “aging-out” should the adjustment of status applications remain pending beyond their 21st birthday.
The process of bringing in a fiancé/fiancée is complex, especially where there may be age and cultural differences, prior petitions or applications where the K-2 children are nearing their 21st birthday, multiple marriages or where the K-1 beneficiary may have a ground of inadmissibility. U.S. citizens seeking to petition their fiancée should consult a knowledgeable and experienced immigration attorney