Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 USA

Telephone:  +334.832.9090

Copyright, Boyd F. Campbell, All Rights Reserved

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How to qualify for the fiancé(e) (K-1) visa

Attorney and Civil Law Notary

    The fiancée ("K-1") visa enables a U.S. citizen's fiance(e) to come to the United States to marry. The U.S. citizen (the "petitioner") must establish to the satisfaction of U.S. Citizenship and Immigration Services (USCIS) that he or she and the foreign national fiancee:

    1. Have a bona fide intention to marry;
    2. Are legally able to marry;
    3. Are willing to marry within 90 days from the date the fiance(e) enters the U.S.; and,
    4. Have met, in person, within two years immediately preceding the filing the fiance(e) visa petition. (USCIS may waive this rule where the applicant can prove extreme hardship or that such a meeting would violate long-established customs of the foreign fiancee's culture or society, such as where marriages are traditionally arranged by the parents of the contracting parties and the prospective bride and groom are prohibited from meeting subsequent to the arrangement and prior to the wedding day.)

    The U.S. citizen petitioner must also establish to the satisfaction of USCIS that any and all other aspects of the traditional arrangements have been or will be met in accordance with custom or practice. Failure to establish that the petitioner and the foreign fiancee have met within the required period or that compliance with the requirements should be waived will result in denial of the U.S. citizen's petition.
    Without the approval of a separate petition on his or her behalf, a child of the foreign fiancee may get the same "K" visa classification as if accompanying or following to join the fiance(e).

    WARNING: The foreign fiance(e) should remain overseas until arrangements for the fiance(e)'s children are complete.

    If the petition is denied, USCIS will notify the petitioner of the reasons for the denial and of the petitioner's right to appeal in accordance with federal regulations.  If the petition is approved, it is referred to the overseas U.S. consulate for consular processing.  U.S. consulates are authorized to charge $400.00 for a consular processing fee, which can take several months in some countries.  The process is generally much quicker than a situation in which the U.S. citizen marries the alien in the foreign country and then files a relative immigrant visa petition in the United States, however.  This latter process can take many months.
    Support requirements (Affidavit of Support) are handled by the National Visa Center in Portsmouth, New Hampshire. U.S. consulates are entitled to updated financial information from the U.S. citizen fiance(e) during consular processing.
    The alien fiance(e) will enter the United States with a K-1 visa, valid for 120 days.  Our office assists our alien clients with consular processing overseas and adjustment of status in the United States after the marriage.  If the couple does not marry within 90 days after the alien fiance(e) enters the United States, his or her stay in K-1 visa status terminates and he or she must leave the United States.

International Marriage Broker Regulation Act of 2005

    On January 5, 2006, President Bush signed the International Marriage Broker Regulation Act of 2005 (IMBRA) into law as part of the reauthorized Violence Against Women Act.  IMBRA was enacted to address alarming evidence of a growing nationwide trend of abuse and exploitation of so-called "mail-order brides".  In an effort to prevent future tragedies, the new law imposes regulations on the marriage-broker industry as well as making changes in the process of by which American citizens can file petitions on behalf of a foreign fiance(e) (K-1) or spouse (K-3) to come to the United States.
    For most U.S. citizens -- who are not marriage brokers -- the change is a mandated criminal background check that must be completed before the case can go forward to the U.S. consulate for consular processing.  These background checks have caused delays in K-1 visa petition processing at USCIS service centers.  Processing was consolidated at the California Service Center in Laguna Niguel.

What to do after the marriage

    After the parties get married within the 90 days, the alien spouse will file a Form I-485, Application to Register Permanent Residence or Adjust Status, as well as applications for employment authorization and re-entry permits. An approved application for adjustment of status entitles the alien spouse to conditional permanent resident status (CPR).  The "green card" that the alien spouse receives is valid for two years, with overseas travel authorized as well as employment authorization.  Within 90 days of the second anniversary of the foreign spouse being granted conditional permanent resident (CPR) status, the parties must apply for removal of the condition, and will be scheduled for an interview at the local USCIS district office. Depending upon the country of origin of the foreign spouse, this interview can be either easy or difficult.

    During the marriage, the parties will need to begin preparing evidence to prove they have a bona fide marriage.  A short list of the types of evidence needed follows:

    • Documentation showing joint ownership of property.
    • Lease showing joint tenancy of a common residence.
    • Documentation showing commingling of financial resources.
    • Birth certificates of children born to the petitioner and beneficiary.
    • Affidavits of third parties having knowledge of the validity of the marital relationship.
    • Other documentation establishing that the marriage was not entered into in order to evade U.S. immigration laws.

    USCIS officers look for "marriage fraud" factors, particularly if the country of origin of the foreign spouse is a "high fraud" country.
    If the marriage ends within the two years, or the parties are separated, the foreign spouse can still file for removal of the condition, either jointly with the U.S. citizen spouse, or alone.  If USCIS issues an order to show cause why the spouse should not be deported (or "removed"), the matter becomes more serious and should be examined by a qualified immigration lawyer.  Unfortunately, the second part of this process can take several years in some USCIS jurisdictions in the United States.  The American Immigration Lawyers Association encourages USCIS to reduce backlogs and cut the time necessary for adjustment of status as well as removal of conditions.  We assist our clients during the entire period of adjustment of status and removal of conditions. 
    If you plan to marry a foreign national, it is usually best to use the K-1 (fiance) visa because it takes less time than obtaining approval of a relative petition filed with USCIS.

    WARNING: Friends, family and acquaintances are good sources of bad advice about immigration matters. Your future in the United States is too important to trust to someone who may want to help you but really doesn't know how.  If you do not know an immigration lawyer and feel you would be more comfortable hiring one who practices near your place of residence, go to the American Immigration Lawyers Association's online lawyer referral service .

    Boyd F. Campbell is a member of the  American  Immigration Lawyers Association (AILA) and the Alabama State Bar .  He served as Chair of the Immigration Law Committee of the American Bar Association's General Practice, Solo & Small Firm Lawyers Section and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998.  He served as Chair of the International Law Section of the Alabama State Bar from 2000 to 2002.  In August, 2001, he was appointed Alabama's first practicing civil law notary by the Alabama Secretary of State.  He is included in The Best Lawyers in America in the field of immigration law, an authoritative reference book published by Woodward/White.

Questions or comments about this article may be directed to:
Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 USA

Telephone:  +334.832.9090

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