Q. What is a K-1 fiancé visa?
A. The K-1 visa is a non-immigrant visa that allows the foreign-citizen fiancé/fiancée to travel to the United States and marry his/her U.S. citizen sponsor within 90 days of their arrival.
Q. What are the general requirements for applying for a K-1 visa?
A. To be qualified for a K-1, the following requirements must be met:
See the relevant sections above for more detailed information.
Q. How long is the I-129F valid for?
A. The Form I-129F approval is valid for four months from the date the petition is approved by the United States Citizenship and Immigration Services (USCIS). During this four month period, the engaged couple should try to secure plane tickets and the necessary travel documents for the foreign fiancé/fiancée’s entry into the United States. However, if the engaged couple cannot make the necessary travel arrangements within that four month period, the I-129F can be revalidated for four month periods.
Q. What are the limitations of a K-1 visa?
A. The K-1 expires 90 days after the fiancé/fiancée enters the United States. Within that period, the fiancé/fiancée must marry the United States citizen petitioner, if not, the alien fiancée must leave the US or the foreign fiancé/fiancée will be in violation of U.S. immigration laws and could be deported.
If the fiancé/fiancée fails to marry the petitioner, he/she will not be allowed to adjust his/her status in the United States or change a status to any other immigrant or non-immigrant status. This does not mean that the foreign fiancé/fiancée will be barred from acquiring lawful permanent resident status; however, they would have to leave the U.S. and apply for a new visa, as long as they meet the eligibility requirements of their new immigration petition. If the foreign fiancé/fiancée is eligible to immigrate based on other circumstances, such as qualifying employment or marriage to a different U.S. citizen, he/she can only obtain residency by applying for an immigrant visa at an appropriate U.S. consulate abroad. The foreign fiancé/fiancée would also be subject to the same grounds of inadmissibility cause by previous immigration law violations, such as: overstay status, having submitted fraudulent documents, etc. The petitioner may also be ineligible if they have filed multiple I-129F petitions, or have a criminal background that is not subject to waiver admissibility.
Q. What is the International Marriage Broker Regulation Act (IMBRA)?
A. Under the IMBRA Act, the U.S. petitioner must indicate on their I-129 petition if they met their fiancé/fiancé through an “international marriage broker,” or any entity that profits from matchmaking services. However, if the engaged couple met through a cultural or non-profit match-making organization, the petitioner does not need to indicate this.
Q. What if I have applied for a K-1 visa in the past/ have received K-1 approval in the past?
A. If a U.S. citizen has ever “filed petitions for two or more fiancés/fiancées and the previously approved petitions were filed within 2 years,” a new K-1 application can be denied. [I.N.A 214(d) (2) (A)] This restriction may be removed through a waiver, which can be requested through a written explanation, submitted along with the I-129F form. Waivers will be highly scrutinized in certain situations, such as those where: the petitioner has a history of violence; has filed I-129F petitions for different beneficiaries at the same time, obtaining I-129F approvals every few years, and so forth.
Q. What are the advantages/benefits of a K-1 Visa?
A. U.S immigration law is quite complex. For a fiancé/fiancée of a US citizen, this is the best way to enter the United States. The application process is fairly simple and the approval rate is high, provided the relationship between the foreign fiancé/fiancée is genuine, the intent to marry still exists, and there is no attempt to commit visa fraud.
Q. Is it possible to bring your fiancé/fiancée over on a tourist visa?
A. It is possible to bring one’s foreign fiancé/fiancée to the U.S. on a tourist visa, but this is highly discouraged. The tourist visa, or B-2 visa, expects the recipient to maintain their expressed intention to visit then leave the U.S. For example, if a B-2 visa holder marries a U.S. citizen within 30 days of arrival, this is automatically considered fraudulent; if the marriage occurs between 30 and 60 days, it is presumed fraudulent, but may be contended; lastly, if the marriage occurs after 60 days, it is permissible. Nonetheless, it is not advisable to enter the U.S. on a tourist visa if the intent is to marry; the best option for bringing a fiancé/fiancée is through a K-1 visa.
Q. Can you work or study on a K-1 or K-2 Visa?
A. Yes, a K-1 visa holder can work in the U.S. but must file first file an Application for Employment Authorization (I-765) with the appropriate USCIS office first. It is important to note that work authorization issued with a K-1 visa would only be valid for 90 days; however, an application for extended work authorization (I-765) can be filed along with an application for permanent residence (I-485). A K-1 visa holder is also permitted to attend school. The K-2 visa is a derivative of the K-1 visa; therefore, the K-2 visa holder has the same eligibility to work, and attend school that the K-1 visa holder has.
Q. Can a K-2 Child Remain in the U.S. Longer than 90 days?
A. Similar to their K-1 visa holder parent, the K-2 child can only stay in the U.S. for 90 days on their K-2 visa. If the U.S. citizen and K-1 parent get married before the K-2 child turns 18 and a legal step-parent/child relationship has been established between the U.S. citizen and the K-2 child, then the US citizen may apply for an immigration petition (I-130) and the K-2 child should apply for an adjustment of status. If the U.S. citizen and K-1 parent do not get married within the 90 day period, the K-2 child will be required to leave the United States.
Q. Does a K-2 visa holder have to have a passport?
A. The requirement for a K-2 visa holder to have a passport varies, depending on the different consulates; therefore it is best to check with the consulate that the K-2 visa holder will be using. Also, the K-2 child needs to have a valid passport.
Q. Does the K-2 Child go Through the Same Interview as their K-1 parent?
A. Interview procedures also vary between consulates; therefore, the specific consulate the K-2 visa holder uses will issues specific instructions about this. Certain locations do not require children under the age of 14 to go through an interview process, but this is not a uniform policy.
Q. If I came to the United States on a K-1 visa and it does not work out between me (the alien fiancé/fiancée) and my U.S. citizen petitioner (spouse to be), can I file a K-1 visa through someone else?
A. If it does not work out between you and the U.S. citizen who petitioned for a K-1 on your behalf, then you can file a K-1 through another person. However, because you can only adjust status through the original person who filed for your petition, you are required to return to your home country and start the K-1 process all over again.
Q. Can you travel abroad outside of the United States with a K-1 Visa?
A. Travel abroad is not permitted with the K-1 visa. Since the K-1 is not a multi-entry visa, the K-1 holder can only enter the U.S. once. Should a K-1 holder leave the United States, they cannot re-enter the country using that visa. If circumstances dictate that a K-1 holder must leave the Unites States, they should submit an Application for Travel (Form I-131) to ensure their return.
Q. How long does the entire process take?
A. Generally speaking, I-129F approval is very fast, if the directions are followed and the appropriate documentation is submitted. The current processing time for an I-129F petition takes around 5-6 months.
After an I-129F is approved, it is sent to the National Visa Center (NVC) for processing. It may take a few months for the documentation to reach the U.S. consulate office issuing the foreign fiancé/fiancée’s visa.
In certain instances, some applications require further “administrative processing,” which takes place after the visa interview. USCIS maintains that most administrative processing is handled in 60 days—not including the time it takes to return the alien fiancé/fiancée’s passport after administrative processing.
Q. What are the Income Requirements when petitioning for a K-1 Visa?
A. A U.S. citizen petitioner must file an I-134 Affidavit of Support and show that their income is 100% above the Federal Poverty Guideline in order to petition for a K-1 visa on behalf of the foreign fiancé/fiancée. (Special Note: Form I-864 does not need to be submitted unless the alien fiancée/fiancée marries the U.S. petitioner and adjusts their status under a conditional basis).
Q. What is a removal of conditions?
A. Once you marry the U.S. citizen petitioner within 90 days of arrival, you may apply for an adjustment of status. After your adjustment of status is approved, you become a legal permanent resident. However, your status is a conditional permanent resident for the two years if your marriage to a US citizen is less than two years on the date of your I-485 approval. To file for a removal of conditions, the U.S. citizen and the foreign spouse must apply together (joint petition, form I-751) within 90 days before the second anniversary of the foreign spouse’s admission as a conditional resident.
If you are no longer married to your spouse, or if you have been battered or abused by your spouse, you can apply to waive the joint filing requirement. You may request a waiver of the joint filing requirements if:
In such a case as those mentioned above, you may apply to remove the conditions on your permanent residence any time after you become a conditional resident, but before you are removed from the country.
If you are still married, but legally separated and/or in pending divorce or annulment, and:
Upon receipt of the final divorce decree or annulment within the specified time period, the USCIS will amend the petition, to indicate that eligibility has been established for a waiver of the joint filing requirement based on the termination of the marriage. The children of the K fiancé/fiancée must also follow the guidelines established by the Immigration Marriage Fraud Amendments (IMFA) and the I-751 petition.
Q. What is a Form I-751?
A. Form I-751 is the form needed to file a joint petition to remove conditions. The joint petition must be filed within 90 days of the 2nd anniversary of the foreign fiancé/fiancée gaining conditional resident status. Under this petition, the parties must establish that (1) the marriage was legal where it took place, (2) the marriage has not been terminated, (3) the marriage was not entered into for the purpose of procuring residency, and (4) that no fee, other than the attorney’s fee to assist filing, was paid.
Q. Can my K-2 child apply for an adjustment of status as well?
A. In order for the K-2 child to be eligible to apply for an adjustment of status, there are various circumstances that must be considered:
Q. I am in the United States on a K-2. However, I am over the age of 18 and a “step-parent/child” relationship was never established. Can I still adjust status?
A. Since a step-parent/child relationship was never established, the K-2 visa holder would not be able to adjust their status and would have to return back to their home country. Once the K-1 parent gains legal permanent resident status, he/she may then petition for the child to immigrate to the United States.
Q. Can the Denial of a K-1 Visa Application or I-129F petition be appealed?
A. If the K-1 Visa application is denied at the USCIS level, you are able to appeal the decision. Generally, the appeal information will be included with the denial notice and the petitioner will have 33 days from the point of receipt of the denial notice.
If the I-129F petition is denied, the petitioner is allowed to appeal the decision, as outlined in the instructions of the denial notice. In general, you have 30 days from the point you receive your denial notice to appeal the decision, but it should be noted that a shorter appeal period may apply to some cases. Generally, the denied applicant must file an I-290B with USCIS and submit it to the office that the original petition was sent to. This office will then process your appeal and send it to the Administrative Appeals Office (AAO), located in Washington, DC. *Note: DO NOT send your appeal directly to AAO, as this will delay the appeals process.* (Please notice the difference between the appeal of a denial of I-129 application or a denial of a K-1 visa application at a US Consular Offices.)
A decision regarding the appeal normally takes about 6 months to be reached.
Q. My alien fiancé/fiancée came over here on a K-1. We have since married. However, he/she had to leave the country for a personal emergency. What can we do?
A. The best suggestion we can offer is to file an adjustment of status and an Advanced Parole so that your spouse may re-enter the United States with an Advance Parole. To learn more about Advance Parole, please click here.
Q. Can a U.S. Citizen Petition for a fiancé/fiancée of the same sex?
A. Yes. In June of 2013, the United States Supreme Court declared unconstitutional part of the federal Defense of Marriage Act (DOMA)that defined marriage as strictly between a man and a woman for all federal statutes and policies; which effectively barred same-sex couples from seeking federal benefits, including those related to immigration. Because immigration benefits are administered at the federal level, this new recognition allows same-sex couples to seek immigration benefits based on their marriage, as long as the marriage took place legally in a state that recognizes same-sex marriage.
Q. Can a U.S. citizen who previously qualified to petition continue to do so, if recently unemployed?
A. In this case, the U.S. petitioner must submit information regarding his/her assets (i.e. additional property, stocks, bonds, and other securities) that will convince USCIS that the U.S. petitioner will be able to meet the minimum support requirement for their fiancé/fiancée—which is 100% of the Federal Poverty Guidelines.
Q. Who will handle my case if I retain Zhang & Associates, P.C.?
A. Our attorneys handle their clients’ cases individually by preparing petition letters, contacting clients, and following up pending cases. That is why we have more attorneys than clerks. Our clerks’ main objective is to help attorneys prepare clients’ packages, and each client’s package will be reviewed by one of our most experienced attorneys for final checking before sending out the package to USCIS.
Q. My spouse came to the US on a K1 visa, but due to a family emergency we did not get married until 100 days after his/her arrival. Can my foreign born spouse still apply for adjustment of status?
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