Recently, it has been increasingly common that a US citizen and their international partner are separated because of travel restrictions, including travel both in and out of the US. The K-1 fiancé(e) visa is an option for couples who intend to get married, though have not been able to to do so because of separation.
The K-1 fiancé(e) visa is intended to allow a foreign national to enter the US for the purpose of marrying a United States Citizen.
K-1 Visa Process with USCIS
We have covered the basics of K-1 visas and immigrant visa processing for a spouse of a US citizen previously. We will provide more detail specifically 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 residency for the foreign national spouse to be able to transition to 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 US permanent residency (Green Card). 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.).
The 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 US 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 to be approved.
We recognize that we are currently living in stressful and unmitigated times, especially for couples that are separated. If you would like further information regarding suitability of a K-1 visa for your circumstances, or your eligibility for a K-1 visa, please don’t hesitate to contact us.
About The Author
Melissa Vincenty is a U.S. Attorney, a registered Australian Migration Agent and the founder and managing director of Worldwide Migration Partners. Melissa has over 25 years of experience in U.S. Immigration Law, including practising at the world’s largest U.S. Immigration Firm and more than 15 years as a Country Specialist (China and Tibet) for Amnesty International USA.
Disclaimer: The information in this article is general in nature, may not, and is not intended to constitute the most up-to-date legal or other information, and is for general informational purposes only. It does not represent legal advice specific to any individual/s situation, and should not be relied on as such. Please contact us for a consultation for legal advice for your individual circumstances.