UNDERSTANDING THE BASICS OF
K-1 FIANCÉE VISAS

Although technically a non-immigrant visa, a K visa is, in fact, a "hybrid" visa in that it permits entry into the United States as a non-immigrant with the specific expectation that the entrant will, after meeting all further eligibility requirements (marriage to the U.S. Citizen fiancé), adjust their status to become a Legal Permanent Resident (LPR) or "green card" holder. In other words, K visas are hybrid visas because it is a non-immigrant classification designed to speed the entry of intending immigrants. While K visas generally take longer to process than some other non-immigrant visas (such as B-2 tourist visas), they take much less time to process than most forms of immigrant visas. The U.S. agencies involved in processing of K visa cases are the U.S. Citizenship and Immigration Services (USCIS) formerly known as the Immigration and Naturalization Service (INS) and the U.S. Department of State.


BASIC REQUIREMENTS AND ELIGIBILITY

The Immigration and Nationality Act (INA) provides for the issuance of a K-1 visa to the fiancé of a United States Citizen (USC) after a petition for that specific benefit, filed by the USC petitioner has been approved by the appropriate USCIS office or Regional Service Center. In order for such a petition to be approved, there must be sufficient satisfactory evidence that the USC and his fiancée:

  • Have previously, physically met, in person, within the two (2) years preceding the date of filing the petition, unless a waiver of this requirement is granted, and;
  • Have a bona fide (real, legitimate, honest) intention to marry, and:
  • Are legally able, and actually willing, to conclude (finalize) a valid, legal marriage in the United States within ninety (90) days after the fiancée's arrival in the United States.

Please keep in mind that USCIS approval is just the first step in the approval process. The Department of State must also approve the actual visa issuance and, it is at this stage that many cases get into trouble. USCIS processing and approval is largely a "paper review". If the proper forms, evidence and explanations are provided, it is highly unlikely that your case would be denied by USCIS. USCIS is able to perform only a "paper review" in most instances because they are relying on the Department of State, through its Consular Officers to investigate the background of the individuals, to make an assessment of the applicant's admissibility and, the bona fides of the family relationship during consular processing and the personal interview.

If, after entry to the U.S. in K-1 status, the fiancée fails to marry the petitioning USC within ninety (90) days of his/her arrival in the United States, the fiancée is required to leave the United States. Failure to leave the United States under these circumstances makes the fiancée and any K-2 dependents with them removable (deportable) from the U.S. The fiancée will only be allowed to remain in the U.S. if she marries the petitioning USC. She may not marry a different USC and remain in the United States. She may not extend K-1 or change to a different non-immigrant visa category in the U.S. The only thing that will allow them to stay in the U.S. after the expiry of 90 days, is marriage to the petitioning USC and filing of an application for adjustment of status.

BASIC PROCEDURAL STEPS

  • We will file an original petition for the benefit sought with USCIS. USCIS has now changed to a "lockbox" filing system where all such petitions are filed with a specific USCIS box address for forwarding to the appropriate USCIS Service Center. All K-1 petitions are now adjudicated either by the California Service Center or Vermont Service Center. Presumptively, assignment of a case is determined by the State of residence of the USC Petitioner. However, in order to balance resources and caseloads, USCIS sometimes allocates cases which might otherwise be adjudicated by Vermont to the California Service Center. All such filings are effected by courier service (i.e., Fed Ex) or by certified mail. USCIS adjudication in this type of petition requires no personal appearance before USCIS by the Petitioner, the Beneficiary or their attorney. Depending on the Service Center involved, it is currently taking USCIS approximately 5-6 months to adjudicate and approve these types of cases. However, processing times fluctuate all the time, both up and down. Your attorney will advise you of the expected processing time as of the date of your filing.
  • Following approval by USCIS, the case is then forwarded to the National Visa Center (NVC), a Department of State facility in Portsmouth, NH where it is assigned a local embassy file number and the file is transmitted to the Embassy for final visa processing. This process generally takes approximately 4-6 weeks
  • Upon receipt of the file, the Embassy will send out what is known as "Packet 3", a set of additional forms and instructions. We will already have these prepared by that time. Upon receipt of Packet 3, we can schedule her personal interview. Scheduling times at various U.S. Embassies and Consulates fluctuate substantially. At some low volume posts such as Burma or Laos, scheduling is fairly prompt, subject to necessary times for security clearances. At high volume posts such as Bangkok and Ho Chi Minh City, waits for interview appointments can be substantial, often running 10-12 weeks or more. This fluctuates up and down throughout the year from a low of about 4 weeks to a high of about 12 weeks. The length of time depends partially on the time of year your case arrives at the Embassy and, partially on collateral demands on the resources of the Consular staff. During consular processing, we will prepare all necessary forms and translations, guide your fiancée through obtaining police clearances, medical exam and preparing her for her personal interview. As we approach the interview, we will prepare your updated Affidavit of Support for presentation at her interview.

For those interested in more detailed information on K-1 Fiancée Visas and K-2 visas for the children of K-1 Visa holders, please see our Reading Room article on K-1 Visas in both English and Thai


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