Amidst these unprecedented times due to the Covid-19 pandemic, it is increasingly common that a US citizen and their international partner are separated because of travel restrictions, including travel both in and out of Australia.
Due to these additional restrictions, in some circumstances, a K-1 fiancé(e) visa may be an advisable option for couples not yet married who may not be able to marry soon due to travel restrictions. The K-1 fiancé(e) visa is intended for couples who are not yet married.
K-1 Visa Process
We have covered the basics of K-1 visas and immigrant visa processing for a spouse of a US citizen previously. We now want to provide a bit more detail regarding the K-1 visa. To review the basic case flow, this the process for a K-1 visa:
- A I-129F Petition for Alien Fiancé(e) is filed with USCIS.
- Upon approval, USCIS then forwards the case to the NVC that transfers the case to a US Consulate overseas for a visa application. A Petition is approved for four (4) months. However, the petition may be re-validated if the couple is still free to marry and intends to do so.
- If a K-1 visa is approved the foreign national fiancé(e) enters the US.
- After entry, the couple must get married within 90 days of entry on the K-1 visa.
- After marriage, the couple then must file with USCIS a Form I-485 Application to Adjust Status for lawful permanent for the now foreign national spouse for the spouse to become a US permanent resident (green card holder).
For legal eligibility, for the couple to file and have an I-129F Petition approved, the following requirements must be met. The US citizen petitioner and foreign national fiancé(e) both must be free to marry, and able and have a good faith intention to marry upon the fiancé(e)’s entry to the US within 90 days.
Requirement that the Couple has Met
The couple generally must have met in person at least once within the two-year period preceding the filing of the I-129F Petition. This is something proven with the initial I-129F filing through evidence to establish at least one meeting occurred. This requirement may only be waived in two circumstances. First, if the US citizen meeting the foreign national would create an extreme hardship for the US citizen, which typically means there is some physical or legal inability for the couple to meet beyond just the expense of travel or work commitments. Second, if there is a “long-established customs of the K-1 beneficiary’s foreign culture or social practice, 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.” USCIS generally has an extremely high bar to waive the two-year meeting requirement.
K-1 Visa Interview
At the time of the interview at a US Consulate for the K-1 visa, important criteria are reviewed before a visa can be issued. K-1 visas are generally adjudicated like an immigrant visa since the applicant is in a process that leads to permanent residency in the US. As such, K-1 visa applicants must attend a US medical exam, provide police clearances, military records (if any), and in some cases demonstrate they are unlikely to become a public charge in the US.
K-1 Visa Approval
After the K-1 visa is issued and the applicant enters the US, it is important to remember some of the limitations of this process. The foreign national and US citizen partner must marry within 90 days of the foreign national’s entry into the US to be able to apply for permanent residency (green card) in the US. This is an affirmative filing that must be made with USCIS after marriage.
If a marriage does not occur, generally, the foreign national must depart the US. A K-1 visa holder cannot marry someone else, or change to another non-immigrant visa (employment, student, visitor, etc.).
A K-1 visa is a single-entry visa. Thus, the foreign national cannot travel outside of the US on this visa for re-entry. A K-1 visa can be reissued only for the remaining days left in the 90 days period. So, travel is not advisable unless the foreign national is departing and will not marry the US citizen partner. The foreign national may only travel after obtaining permission to travel as part of the adjustment of status process or becoming a permanent resident.
K-1 visa holders must obtain an Employment Authorization Document (EAD) or become a permanent resident to be able to be employed in the US. The EAD is usually applied for as part of the residency application process; but, may take significant time currently to be approved.
We recognise that we are currently living in stressful and unmitigated times, especially for couples separated currently between the US and Australia. At the very least, Worldwide Migration Partners can ensure ease in the application process and remove this singular worry on your behalf. If you would like further information regarding your eligibility, please don’t hesitate to reach out to us!
About The Author
Melissa Vincenty is a US attorney, an Australian migration agent and the founder and managing director of Worldwide Migration Partners. Melissa has over 20 years of experience in migration law, including practising at the world’s largest US immigration firm and more than 15 years as a Country Specialist (China and Tibet) for Amnesty International USA.