Fiance

When an alien wishes to enter the United States to marry a U.S. citizen, he/she must apply for a ‘K’ visa. However, to be eligible for this, the American fiancé/e of the alien must first file a petition (Form I-129F) with the INS in the area of the petitioner’s place of residence in the U.S. The approved petition is then forwarded to the U.S. Consular Office where the alien will apply for his/her visa.

Since a Fiancé/e of a U.S. citizen is considered to be an intending immigrant, he/she must submit the following documents along with the application form:

1. Valid passport
2. Birth certificate
3. Divorce or death certificate of former spouse (if any)
4. Police certificate from all places the applicant has resided in since the age of 16
5. Medical examination report
6. Evidence of support
7. Evidence of valid relationship with petitioner in the form of correspondence and/or photographs

If approval is granted, the alien will receive a single entry visa (K-1), which is valid for a period of six months. At the port of entry to the United States, he/she will receive a stamp on his/her passport giving him/her authorization to work while waiting to get married to the U.S. citizen. The marriage must take place within ninety days of entry of the alien fiancé/e to the United States. No extension is granted after this period is over. Also, the alien may not travel out of the United States until the marriage is over. If he/she has to do so, he/she will need a new visa.

There are three important requirements which must be met for the marriage to be considered right for immigration purposes:

1. Both the petitioner and the alien fiancé/e must be legally free to marry – i.e. both must be unmarried or any previous marriage must have officially ended through divorce, annulment or death.
2. The petitioner must have met his/her fiancé/e in person within the last two years before filing for the fiancé/e visa. (This requirement may be waived if such a meeting is against long established customs.)
3. The marriage must take place within ninety days of the alien entering the United States.

After marriage, the alien spouse must apply to the INS for conditional permanent residence status along with a new work permit.

The U.S. citizen may also apply for his fiancé/e’s children (under 21 years of age) to accompany him/her to the United States. They would be granted a K-2 visa.

EXPANSION OF THE ‘K’ VISA CATEGORY UNDER THE NEW LIFE ACT

The recently passed Legal Immigration and Family Equity (LIFE) Act expands the use of the ‘K’ visa to include spouses and children of U.S. Citizens as well as fiancées. The provision was intended to fill a lacuna in the law and help the huge backlog that existed at that time for processing family sponsored petitions. Spouses of U.S. citizens who are outside the United States and are forced to wait outside the country for the approval of their immigrant petition, would be permitted to enter the U.S. on a ‘K-3 visa and obtain work authorization pending approval of their immigrant petition. Any minor children, accompanying the spouse, can also be included in the petition.

In order to qualify the following conditions must be met:

1. An Immigrant visa petition must already have been filed before the application for the K visa is made.
2. The spouse must be outside the U.S., as only a consular officer outside the U.S. can issue the visa.
3. As with all K visa petitions, it must be filed by the U.S. citizen with the USCIS in the U.S.
4. If the marriage occurred outside the U.S., the consulate having jurisdiction over the place where the marriage took place must issue the K visa.
5. There is no provision that would allow someone in an unlawful status already in the U.S. to ‘adjust status’ or change to valid K status.

All the other requirements of the K visa would apply to K-3 visa applicants under this new law. Since the expanded provisions deal with marriage, it is important that the marriage must be legally valid and must not have been entered into solely for immigration benefits. As with the earlier provisions, the K-3 visa holder will be permitted to work in the US after obtaining work authorization.

Currently there is no time benefit in filing for a K-3 as opposed to the regular I-130 for the spouse of a US Citizen and hence filing a K-3 is not really advantageous and in fact has the disadvantage of filing with two sets of fees- one for the i-130 petition and second for the I-129F.

Click here for further details on the implementation of the ‘K-3’ nonimmigrant visa provision of the LIFE Act.

INS InfoLinks :

1. Bringing a fiancé/e to the United States

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth and the viewer.