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K-1 Non-Immigrant Visa

Like most countries, Legal entry into the United States requires a U.S. Visa. To visit or reside in the United States legally, foreigners must have a visa. There are different kinds of visas for various purposes of travel. Among the nonimmigrant visa, there is the K-1 fiance visa.

What is the K-1 Visa? 

The K-1 visa is the love visa. Like life, love can be unpredictable, and it doesn’t knock before it enters. United States citizens often travel to foreign countries for business, vacations, sports, medical treatments, etc. People also meet online, and sometimes, these strong love connections occur during the foreigner’s visit to the U.S and continue upon return to their country. What then happens when such U.S citizens return to the U.S? Will it be goodbye forever to their newly found love? Certainly not, who could live with such heartbreak? This is where the K-1 visa comes in. 

 The K-1 nonimmigrant visa is for the foreign fiance(e) of a U.S Citizen. The K-1 visa allows the foreign fiancé(e) to travel to the United States and marry their U.S. citizen fiance(e) within 90 days of their arrival. After the marriage, the foreign spouse can then petition to adjust status to a conditional resident or to a lawful permanent resident (LPR) depending on the duration of their marriage at the time of approval. Eligible children of the foreign fiance(e) will also receive a K-2 visa and change status after the marriage union.

 Eligibility requirements for the K-1 Visa

Basic Eligibility Requirement for a K1 Visa.

The K-1 visa petitioner must: 

  1. Be a U.S. citizen and:
  2. The petitioner and the foreign fiancé(e) must:
    A. Be legally free to marry and intend to marry within 90 days of the foreign fiancé(e)’s admission to the United States; and
     B. Have met each other in person within the two years immediately before you filed this petition unless they seek a waiver of this requirement due to the violation of long-standing cultural practice or extreme hardship.                                                                                        C. Be engaged with the intent to get married within 90 days of admission in K1 visa status.
    D. Establish through documents that the relationship is bonafide and entered into in good faith.

       3. The U.S Citizen, must meet the standard income requirement to ensure that the fiance(e) on admission to the United States does not become a public burden. 

If the U.S Citizen petitioner is unable to meet the standard income requirement, he/she can get a joint sponsor for the affidavit of support.

Age of K2 Visa dependents and aging out requirements.

USCIS issues the K-2 visa to eligible children of the foreign fiance(e). According to USCIS, for such children to be eligible for the K2 visa and status adjustment for permanent residence, they must be unmarried and under the age of 21. USCIS defines a child as a person who is both unmarried and under 21 years old. The term children cover both biological children, adopted children, and children born out of wedlock, provided that the state laws regard the foreign fiance as a legal parent of these children. 

The accompanying children must be under age 21 and be unmarried right up to the day they enter the United States on their K-2 nonimmigrant visa. What then happens if any of the children will turn 21 soon? Unfortunately, no one stays under 21 forever. USCIS often gives priority to applications with children about to turn 21 years of age. The U.S Petitioner may request expedited processing of the K1 Visa application if eligible.

A K2 who entered the U.S under age 21 but has exceeded the age of 21 at the time of the green card adjustment of status application would not age out of eligibility for a Green Card if he/she were under 21 as at when admitted to the United States as a K-2 nonimmigrant.

The k-2 child will also not age-out if the child’s visa holder’s parent and the U.S Petitioner got married within 90 days of the K1 visa holder’s admission into the U.S.

What happens if the marriage did not take place within 90 days?

However, if the marriage took place but not within 90 days, the K-1 and K2 visa holders cannot seek adjustments to lawful permanent residents based on the K-1 visa petition filed on their behalf. In such a case, the U.S. petitioner will have to file an alien relative petition form I 130 on behalf of his spouse (the K-1 fiancé ). He will only be able to sponsor and file an alien relative petition form I – 130 on behalf of the K2 dependent child if the child qualifies as a stepchild of a United States citizen.

For K2 dependent children to be eligible as a stepchild of a U.S. citizen. The marriage to their biological parent must have taken place while the child was under 18. To avoid aging out, the  U.S citizen petitioner must file the Form I-130 before the child’s 21st birthday. The Form I-130 will then create a new basis upon which they can seek an adjustment of status in the U.S. for lawful permanent residence.

Two-year in-person meeting requirement and its Waiver.

 USCIS vigorously enforces the two-year in-person meeting requirement. The department introduced this requirement to reduce false marriage. The requirement also gives the couple a chance to get to know themselves before committing to marriage. According to Forbes, there are over 2,500 online dating sites in the U.S. The U.S. government does not see online dating as a strong enough means of connection. Hence, the two-year meeting requirement ensures that the relationship is bonafide. The goal is to provide the foreigner an opportunity to meet and know who they are marrying. This helps to avoid going into a marriage blindly and ignorantly.

USCIS may waive the requirement of the in-person meeting on discretion if the U.S petitioner can establish that either:

 (1) The need to meet in person would violate strict and long-established customs of the fiancé(e) ‘s foreign culture or social practice, and that any aspects of the traditional arrangements have been or will be met following the custom or practice; or

 (2) The requirement to meet the fiancé(e) in person would result in extreme hardship for the U.S citizen petitioner 

 This decision on the waiver is purely discretionary. The USCIS immigration officer makes the decision based on the unique facts presented in each specific case. Obtaining a waiver for the two-year in-person meeting requirement may prove challenging; as such, discussing the unique facts of your case with an experienced Immigration Attorney will be in your best interest.

 USCIS frequently disregards scenarios where applicants claim that their lack of money creates an extreme hardship because they cannot afford to travel to meet personally. USCIS may determine that extreme hardship would occur due to a medical condition that prevents the U.S citizen petitioner from traveling to see his/her foreign fiance(e).

Case Scenario

For example, Mr. Mason, a U.S. Citizen, had a terrible accident about two years ago that caused severe injuries to his spine.

Within the past two years, he has had to undergo surgery twice to be on his feet again. Mr. Mason’s health is improving, but his medical report shows that he shouldn’t sit more than an hour at a time to prevent nerve damage and possible paralysis. About three years ago, he traveled to Iran for a business summit, where he met Aleah, who is now His fiancee. Before the accident, Mr. Mason had plans to travel to see her, but sadly things did not go according to plan. Now, he is petitioning for Aleah to come to the U.S. and becomes his wife. He last saw her three years ago during his business summit. Because of this, the petition may get denied.

 Aware of his case’s unique facts, Mr. Mason files for a waiver together with the K-1 petition. Within the past two years, he has been in no condition to undertake a 13-hour flight to see his fiancee. Aleah’s family’s custom forbids her from traveling to the United States to see Mason unless he travels down to Iran to see her parents first. With such reasons in place, USCIS may approve the waiver. It is vital that the waiver adequately demonstrates that the petitioner’s medical condition would place him or her in extreme hardship if they were to travel.

Procedure for Applying for a K-1 Visa

The first step is for the U.S citizen petitioner to file a K1 Fiancé(e) Visa Petition with the United States Citizenship and Immigration Services (USCIS) office. After USCIS approves the petition, it is sent to the National Visa Center (NVC). The NVC will assign a case number and forward the petition to the U.S. Embassy or Consulate where the foreign fiancé(e) resides. When this happens, the U.S embassy will contact the foreign fiance(e) to apply for a K-1 visa and K2 visa (if there are eligible dependents) and attend the k1 visa interview.

Restrictions/limitation on the K-1 visa holder upon entering the U.S

 Upon approval of the K-1 visa at the U.S. embassy, the K-1 visa holder and any dependent K2 visa holder are required to enter the United States during the validity period of the visa.

Upon admission into the United States, USCIS requires that K-1 visa applicants remain in the United States for 90 days to conduct the proposed wedding. Afterward, they are to file the green card application for permanent resident resident status.

What Happens if the Marriage Fails to Occur?

Should the marriage ceremony fail to occur, the K1 visa holder must exit the United States or become subject to removal/deportation. The K-1 visa is valid for 90 days. Within this validity period, USCIS expects the K-1 spouse and U.S citizen to marry.  

The immigration law prevents a K-1 visa holder from obtaining permanent resident status through any other means or through marriage to a different U.S. citizen. The exception to this rule is where the K-1 visa holder is a victim of domestic violence.

 These restrictions and limitations are to ensure that the K-1 visa process is not abused. It is not an unusual practice for foreigners to find a U.S. Citizen partner, maybe online or during short visits, get the K-1 visa, and enter the U.S. with no intent to marry. Upon entry, such foreigners decide not to forge ahead with the marriage plans but seek other alternatives to gain permanent residency in the United States. The restrictions effectively prevent this from happening. 

Case Scenario

 Take a hypothetical situation, for instance; On April 15, 2002, Ms. Garcia, a U.S. citizen, filed the K-1 petition for her foreign Fiancé, Rahul Advik, an Indian national. USCIS approved the K-1 visa petition on July 18, 2002. Rahul entered the country legally on the alien fiancé visa (“K1 visa”) on November 7, 2002. Afterward, the couples fixed their wedding date for December 7, 2002.

 A week before the wedding, Rahul had a change of heart, the reason being that Ms. Garcia was not physically as attractive as the pictures she posted online while they were dating. After all, was said and done, the wedding eventually got canceled, and both parties went their separate ways.

Six months after the expiration of his k-1 authorized 90-day period, Rahul met another U.S. citizen, Ava, a 32-year old Gym instructor. They got married on August 18, 2003. At this time, Rahul’s K-1 90 days in the U.S. had expired since February 2003. Between February 2003, when he lost his K-1 status, to August 2003, Rahul had already accumulated six months of unlawful presence in the U.S.

Without being properly informed, Rahul petitions for the Green Card after the wedding. He strongly believed that he was eligible for Permanent residency. But, USCIS denied his application. Why? Rahul came into the U.S. on a K-1 visa petitioned by Ms. Garcia, a fiancee he did not eventually marry. He is not eligible for permanent residency except through his original K-1 visa petitioner, Ms. Garcia.

To add salt to injury, Rahul has accumulated enough unlawful presence period to face deportation and the unlawful presence bar. Due to his status overstay, he is subject to removal/deportation from the U.S. His accrual of up to 180 days (6 months) will subject him to the three years unlawful presence bar upon exit from the U.S. 

Begin your K-1 visa process now

Obtaining a K-1 visa can prove challenging some times, most especially if you require a waiver. It involves a lot of little details which one should handle carefully. So, to avoid unnecessary delay in the approval of your K-1 visa, you should employ the services of an experienced Immigration Attorney for much-needed guidance. That way, you can rest assured that all that is required will be properly filed and monitored. This will improve your chances of getting your K-1 approved so you can be with your loved one as soon as possible. Here at Law Offices of Osas Iyamu, we understand the bond of family. We are committed to giving you the best experience as we handle your case. Contact the Law Offices of Osas Iyamu now to start your k-1 visa today. 

 

Osas Iyamu

Distance Is No Barrier, Call Us Now!
(800) 974-6480
(352) 237-2403

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