K-1 Nonimmigrant Visa

The K-1 nonimmigrant visa is a visa for the foreign-citizen fiancé(e) of a United States citizen (USC).

A foreign-citizen fiancé(e) of a USC is someone who has been issued a nonimmigrant K-1 visa for travel to the United States to marry his or her USC fiancé(e) within 90 days of arrival. The K-1
visa provides a path to U.S. citizenship. Once married to the USC sponsor, a K-1 visa holder will then apply for adjustment of status to a permanent resident (LPR).

Background

On April 7, 1970 U.S. Congress passed Public Law 91-225 which amended the Immigration and Nationality Act of 1952 and created the K visa category. Before the K visa existed, Vietnamese citizens who wanted to marry a U.S. soldier were required to obtain an exit visa from the Vietnamese authorities as well as an immigrant visa from the U.S. Embassy. During the Vietnam War, many Vietnamese citizens who wanted to marry a U.S. citizen soldier were unable to complete the visa process before the U.S. citizen soldier had to return to the United States. The solution this predicament was the K visa.

In the mid-1980s, due to heightening fraud concerns, U.S. Congress passed the Immigration Marriage Fraud Amendments Act (IMFA) of 1986. The IMFA created requirements that still stand today. Then in the 2000’s, as a result of the murders of two foreign women by their respective U.S.C sponsor, U.S. Congress passed the International Marriage Broker Regulation Act (IMBRA)
of 2005. The IMBRA required disclosure of criminal convictions to certain violent crimes. Moreover, the Act limited I-129F petitions to two in a lifetime with at least a gap of two years in between.

Requirements

The following are requirements outlined in the Petition for Alien Fiancé(e), Form I-129F

Instructions

1. Both USC and K-1 visa applicant must be legally free to marry and intend to marry within 90 days of foreign fiancé(e)’s admission to the United States; and
2. Both USC and K-1 visa applicant have met each other in in person within the two years immediately before filing the I-129F petition.

There two possible exceptions for the second requirement that may be granted by USCIS. One exception is based on extreme hardship. The second exception is if it is contrary to either the USC sponsor or foreign-citizen fiancé(e)’s culture for them to meet before marriage.

General Filing Process

Below is a summary of the general process of filing for a K-1 visa.

Step 1: File I-129F, Petition for Alien Fiancé(e)

Step 2: USCIS performs background checks

Step 3: If USCIS approves Form I-129F, USCIS will notify petitioner and send the approved petition to the Department of State’s National Visa Center (NVC). The approval does not guarantee that the Department of State (DOS) will issue the K-1 visa. Thus, the approval does not give the foreign national permission to travel to the United States.

Step 4: The NVC issues the foreign fiancé(e) a case number and sends the petition to the embassy or consulate where the foreign fiancé or fiancé(e) will apply for the K-1 visa.

Step 5: DOS notifies the USC petitioner when it is time for the foreign fiancé or fiancé(e) to apply for the K-1 visa. DOS conducts background and fingerprint checks on the K-1 visa applicant. The visa applicant must bring documents to the visa interview including proof of relationship and proof of medical examination.

Step 6: If a DOS consular officer finds the applicant is a bona fide fiancé or fiancé(e) eligible for the visa and is not inadmissible or otherwise ineligible for the visa, DOS will issue a visa that is valid for no more than six months and a single entry into the United States. Essentially, this means the foreign fiancé or fiancé(e) has no more than 6 months to travel to the United States and seek admission.

Step 7: The K-1 nonimmigrant visa holder travels to the United States and seeks admission by Customs and Border Protection (CBP). Having a K-1 visa does not guarantee admission. CPB will conduct an inspection at the port of entry in order to make an admissibility decision. CBP inspection includes collection of biometrics and an interview. If CBP admits the K-1 visa holder, the period of admission is for 90 days, and it is conditioned on marrying the same U.S. citizen petitioner within those 90 days.

Step 8: Foreign spouse then applies to USCIS for Adjustment of Status to Lawful Permanent Resident by filing Form I-485, Application to Register Permanent Residence or Adjust Status, as soon as possible. USCIS will conduct a background check on both spouses, including fingerprint checks on foreign spouse, and may interview both spouses.

If lawful permanent residence is granted before the second anniversary of the marriage, the foreign spouse will be given two-year conditional permanent resident status and a Green Card valid for two years. If a permanent residence is not granted until after the second anniversary of the marriage, the applicant will be given lawful permanent resident status without conditions and a Green Card valid for 10 years.

Step 9: The conditional permanent resident petitions USCIS for removal of conditions on his or her residency by filing Form I-751, petition to Remove Conditions on Residence. This petition must be made within 90 days prior to the end of the conditional resident status. A conditional Permanent Resident Card cannot be renewed. Form I-751 must be filed jointly with the USC spouse unless a waiver applies. USCIS will again conduct background and fingerprint checks on the conditional permanent resident and may interview both spouses to determine whether the marriage is bona fide.

For further information or to work with us, please reach out to info@younossi.com or call our offices at 650-737-7600.