K-1 visa

A K-1 visa is a United States non-immigrant visa benefiting fiancés and fiancées of US citizen petitioners.

__TOC__The Application is made by the petitioner in the US on a USCIS form I-129F filed by mail at a USCIS Service Center. The petitioner must provide detailed information and supporting documentation to prove that both parties are legally free to marry, have met each other within the last two years, intend to marry, do not have disqualifying criminal histories (so-called crimes of moral turpitude), and proof of identity and citizenship. Recent changes to the Law also limit the number of petitions a Petitioner can make, and the Petitioner must not have a criminal history of sexual or partner abuse. Other recent changes in the Law also severely limit the role of "marriage agencies" in the introductions, and any involvement of such agencies must be disclosed.

If approved (eight months is about normal, though this varies based on processing time, and to a degree the relevant embassy), the Application materials will all be forwarded to the National Passport Center for processing. Then the whole paper file wrapper is sent to the US embassy or consulate in the jurisdiction in which the fiancé(e) resides abroad ^{[http://uscis.gov/graphics/howdoi/fianceapp.htm]} . The Embassy will contact the fiancé(e) and schedule an interview date. In the meantime, the fiancé(e) has to have a medical examination at an approved clinic, to screen for certain infectious diseases like HIV, Tuberculosis and Syphilis. The Embassy staff will question the fiancé(e) and ask for additional documents, to determine the authenticity of the relationship (amongst other things, that it is not an attempt to skirt 'the proper channels' of US immigration law), though the preliminary questioning in this regard is fairly straightforward and brief. If the interview goes well, the visa is granted immediately, but the fiancé(e)'s passport may need to be kept for a few days for processing. The fiancé(e) then has six months to enter the US, and 90 days after that to marry the Petitioner. The fiancé(e) cannot marry any other person, and must return if not married to the Petitioner. If the fiancé(e) has children, and they were properly identified in the original petition, then they will be issued K-2 visas. Such K-2 visas depend on the parent's K-1 visa.

After marrying, an "Adjustment of Status" (using a USCIS form I-485 ^{[http://uscis.gov/graphics/howdoi/LPRApplication.htm]} ) must be filed that will convert the K-1 fiancé(e) and K-2 children status to that of "Conditional Lawful Permanent Resident Status", e.g., a green card. It can take as long as a year after the filing of a correct I-485 to be invited to a local USCIS Office for an interview of the Petitioner, K-1 fiancé(e), and any K2 children. The interviewer is essentially interested in ascertaining if the marriage is legitimate, and will ask questions a genuine couple should have no issue answering, for example, "Who normally does the grocery shopping?", "What night does the garbage go out?", "When was the last time your spouse took the day off work?". If the interview goes well, the I-551 "green card" will arrive in the mail in a few weeks - although post September 11, this time has been increased due to a backlog in CIA processing of background checks. If the Petitioner or the fiancé(e) does not attend the Interview, the fiancé(e) will lose legal status and must leave the US.

The Conditional Permanent Resident Card can be converted just before the two year anniversary of issuance to unconditional status by making another application and attending a second interview. Otherwise, the Conditional Permanent Resident Card will expire, and the applicant will be subject to exclusion from the United States. Again, the interviewer will be looking to see if this is a legitimate marriage, however, if the couple has split up and a history of spousal abuse can be documented to the USCIS, the fiancé(e) alone can apply for the unconditional status. In other words, the power of the Petitioner to coerce and intimidate the fiancé(e) is reduced and the fiancé(e) will be excused by the USCIS if it can be shown the separation or divorce was the fault of the Petitioner. This ties back in with not granting K-1/K-2 petitions to US citizens that have a history of violence or sex crimes. The foreign spouse may apply for US citizenship three years after the issuance of the Conditional Permanent Resident Card if married the whole time to the US Citizen, or otherwise five years after the issuance of the Conditional Permanent Resident Card.

The foreign spouse may obtain a social security number upon arrival in the US on a K-1 visa. A document called "Advance Parole for Travel" must be applied for to travel outside the US and return whilst the adjustment of status (I-485) is pending. A work authorization card (EAD) is occasionally issued at the port of entry (although more and more rarely, but can be obtained before the green card is in hand, the usual process being to apply in concert with the Adjustment of Status document.

Summary: a Petitioner must wait, on average, 8 months before the USCIS processes the request, then more time until the NVC processes that application, then wait until the Embassy schedules an interview for the fiance(e), then wait until that interview occurs. This is significantly longer than before 30 January 2007, because before that day, US citizens were allowed to file I-129F petitions not just at the USCIS, but also at US Embassies and US Consulates.

Designed To Make Life Easier

The K-1 visa was introduced as a bureaucracy-reducing measure for US citizens desiring to marry foreigners. It allows the fiancé(e) to enter without first obtaining a green card, which can then be obtained while in the USA, post-marriage. It can still be cumbersome, in that the same steps must still be performed (just without such a long wait apart from partner in the foreign country). The validity of the relationship and marriage is subject to immigration scrutiny at several different times - including when the original application for the K-1 visa is made, at the interview at the US Consulate abroad, and then later after marriage when it is time to file for Adjustment of Status (to Conditional Permanent Resident), and once again near the end of the two year conditional period.

The first step in applying for a K-1 visa is for the American citizen to file an I-129F petition with one of the two U.S. Citizenship and Immigration Services (USCIS) Service Centers in the United States that process these petitions, located in either California or Vermont. The K-1 visa is similar to processing an immigrant visa petition in that civil and financial documents are required. Typically the petitioner states that it is their desire and intention to marry the foreign fiancé(e), and one of the reasons for the US citizen being the petitioner is to reduce the possibility of filings being made by coercion or under duress.

Visas fall roughly into two classifications, non-immigrant (for visitors, employees, and missionaries, for example), and immigrant (permanent visas for things like the visa lottery, families intending to move permanently to the USA, business investment, and new marriage partners). The K-1 visa is in a bit of a gray area: although it is officially called a non-immigrant visa, applicants intend to apply for immigrant status after arriving in the USA.

Legal Philosophy of Visa

A US citizen may marry any foreigner under the law of their desire, with the fewest exceptions necessary. Human rights laws, international law, and US constitutional law together create the right of a US citizen to marry a fiancé(e) of their (mutual) choosing, no matter what the citizenship (national origin, race) of the fiancé(e). The legal philosophy behind the bureaucracy (forms, interviews, and proofs) of K-1 visas (along with visas for spouses and their family members) is that the government can limit human and constitutional rights only if there is a compelling state interest, or, in other words, an overriding concern that affects the rights of other citizens. And the USA has established a large list of reasons: national security, controls against "subversives", crime, etc.Fact|date=February 2007

Problems with K-1 Visa

In a time of great controversy over foreign residents, the legal immigration process is considered slow and underfunded. A review of 1,899 K-1 Visas showed that the average wait from initial filing to a Consular interview is 210 days [http://www.visajourney.com/timeline/stats.php?history=3600] (as of August 1st, 2008), with more delays possible after the interview. However, this is considered an improvement over the old-style spousal visas.

Problems Using Other Visas to Get Married

According to the United States Immigration Law and State Department Policy, US Embassy Consular Divisions may reject applications for non-immigrant visas, such as a Tourist Visa if they believe that the applicant is an intended immigrant. Some considerations regarding such a determination is whether the visa applicant is intending to return to t their home country or wanting to enter the United States with the intention to marry. In countries with a high rate of visa fraud non-immigrant visas may have a high rejection rate due to applicant's being determined to be "intended immigrants" by consular officials. There are criminal penalties for the K1 Visa sponsor and the possibility of deportation for the holder as it may be viewed by USCIS as fraud.

Visa sponsors are required to meet certain financial qualification to sponsor an applicant for a K-1 visa. However there are different financial requirements for each State in the US as their poverty lines differ. Active duty military personnel as an example also only need to meet 100% of the poverty line where as others need to meet 125% of the poverty line. Another reason is that those who are self employed usually do not fully understand that if they do not meet and exceed the poverty line of their State, the assets they own does count towards meeting their financial requirements.

A person traveling to the United States to marry a U.S. citizen with the intention of returning to his/her place of permanent residence abroad may apply for a visitor (B-2) visa, or if eligible, travel visa free under the Visa Waiver Program. [http://www.usembassy.org.uk/cons_new/faqs/faq_visa_iv.html#iv036] [http://tokyo.usembassy.gov/e/visa/tvisa-niv-kfaq.html#eleven]

External links

* [http://www.k1-fiancee-visa-law.com Expert content on applying for K1 Visa from one of the world's foremost legal authorities on the subject]
* [http://www.visajourney.com/forums/index.php?autocom=custom&page=k1flow VisaJourney.com's K1 Process Flowchart]
* [http://travel.state.gov/visa/immigrants/types/types_1315.html US State Department guidance on immigration for spouses and fiancé(e)s of US citizens]
* [http://travel.state.gov/visa/immigrants/types/types_2994.html US State Department guidance on the K-1 nonimmigrant visa]
* [http://uscis.gov/graphics/howdoi/fiance.htm USCIS guidance on bringing a Fiancé to the United States]