Non-Immigrant Visas: K-1 Visa

BASIC REQUIREMENTS

Sections 101(a) (15)(k) and 214(d) of the Immigration and Nationality Act, 8 USC Sections 1101(a)(15) (k) and 1184(d), provide for issuance of a K-1 visa to the fiancé(e) of a U.S. citizen only after a petition, filed with the appropriate INS office in the United States, has been approved, based on satisfactory evidence that the parties:

1. have previously met in person within two years of the date of filing the petition, unless a waiver is granted;
2. have a bona fide intention to marry; and
3. are legally able and actually willing to conclude a valid marriage in the United States within 90 days after the fiancé(e)’s arrival.

If the parties do not marry within 90 days, the K-1 fiancé(e) (and K-2 dependents) will be required to depart, and failure to depart renders them removable.

KEY CONSIDERATIONS

1. The “Previous Meeting” Requirement -- INA Section 214(d) was amended by the Immigration Marriage Fraud Act of 1986 to require that the parties meet personally within two years prior to filing the petition. INA Section 214(d) gives the Attorney General discretion to waive this requirement, but provides no specific guidelines. As interpreted in INS regulations, the personal meeting requirement may be waived upon proof that compliance would:
   
   
   1. Result in extreme hardship to the petitioner; or
      
      
   2. Violate strict and long-established customs of the beneficiary’s foreign culture or social practice, as where marriages are traditionally arranged by the parents of the contracting parties and the prospective bride and groom are prohibited from meeting subsequent to the arrangement and prior to the wedding day.
      
      There have been some administrative decisions defining the grounds upon which the two year meeting requirement may be waived. International political dangers, health reasons, and financial burdens may constitute hardship under the proper circumstances. While failure to meet is not a basis for the consular officer’s automatic suspension of a K visa application, it may be given considerable weight in determining whether a bona fide marriage is intended.
      
      A denial of the K visa for failure to meet or obtain a waiver is without prejudice to the filing of a subsequent petition after both parties have met.
   
   
   
2. Freedom to Marry - Both parties must be free to marry and must intend to enter into a valid marriage within 90 days immediately following the fiancé(e) entry into the United States. Thus, both parties must show that they have terminated any prior marriages, and there may not be any other prohibition against the proposed marriage.

PROCEDURAL CONSIDERATIONS

1. Place of Filing the Petition - The K-1 visa petition is filed by the petitioner “with the INS director having administrative jurisdiction over the place where the petitioner is residing in the United States.” The K-1 visa petition may not be filed with or considered by the consulate abroad. However, a citizen abroad can execute the visa petition before a consular or immigration officer there for forwarding to the appropriate INS office in the United States.
   
   
2. The K-Petition and Supporting Documents - The K-1 petition is filed on the INS Form I-129F and must include color photographs of both parties and signed INS Form G-325A for both the petitioner and the beneficiary. The petition must be supported by proof that the parties: have met in person within two years before filing; intend to marry; are legally able to marry, including proof of the legal termination of any prior marriages of either; and are willing to marry within the 90-day period. Affidavits of the parties and persons with personal knowledge of the relationship, photographs showing the parties together, correspondence between the parties by letter or e-mail, telephone bills, receipt for engagement ring, documentation of wedding plans and similar types of evidence can be helpful in establishing these requirements.
   
   Upon receipt of the petition, INS creates an “A” file for the beneficiary. On approval, INS sends the petition to the appropriate consular post. An approved petition remains valid for four months from the date of INS action. An INS district office or a consular officer may revalidate the approved petition for additional four-months periods upon proof that the parties are free to and intend to marry within the 90 day period. A denial of the petition is appealable to the Administrative Appeals Office of the INS.
   
   An approved K-1 petition is automatically terminated when the petitioner dies or withdraws the petition before the beneficiary arrives in the United States.
   
   
3. K-2 Dependents - The minor unmarried children of a K-1 principal beneficiary who are listed in the petition may be accorded K-2 status is accompanying or following to join the beneficiary. The cutoff date for issuance of a K-2 visa is one year from the date of issuance of the K-1 visa to the principal beneficiary. Thereafter, an immediate relative or second preference petition is required for the dependent.
   
   
4. The Visa Process
   
   
   1. Visa Application - On receipt of an approved petition from the INS, the consulate generally issues a letter to the beneficiary outlining the steps for visa application. Since the K-1 nonimmigrant seeks to enter the United States ultimately to apply for immigrant status, he or she must present the following documents:
      
      
      1. Form OF-156 and Supplement, which the consulate sends to the applicant upon receipt of the approved petition;
      2. Valid passport;
      3. Birth certificate;
      4. Evidence of the termination of prior marriages;
      5. Police certificates, if available, from the beneficiaries’ present place of residence and any place he or she has resided for six months or more since reaching the age of sixteen;
      6. INS Form OF-157 Medical Examination record; and
      7. Evidence of available financial resources to demonstrate that the beneficiary will not become a public charge.
      
      
      
   2. Clearance Procedures, Interview and Visa Issuance - Upon receipt of the requisite documents, the consular officer initiates clearance procedures, requesting priority handling and a response within 30 days. When security clearances have been completed, the consular officers interviews the applicant to determine eligibility as if the beneficiary were applying for an immigrant visa as an immediate relative. If the consular officers finds the beneficiary to be eligible, he or she issues the K visa valid for four months and a single entry without charge and without requiring fingerprints. The consular officer then seals the petition and all supporting documents in an envelope and gives it to the beneficiary for presentation at the port of entry.
      
      
   3. Processing Issues
      
      
      1. Factual Inconsistencies - If the officer finds that the applicant’s marital history is inconsistent with the statements in the petition, or that children of the beneficiary were not named in the petition, he or she is required by the FAM to suspend action and return the petition to the INS for reconsideration with a memorandum of finding.
         
         
      2. Pregnancy of the Beneficiary - Where the beneficiary is pregnant and this condition is not disclosed on the petition, the consular officer must obtain the petitioner’s written acknowledgment and statement of his desire to proceed with the case. If the beneficiary gives birth prior to entry, the consular officer may issue the appropriate K-2 visa to the child, unless the child is found to have a serious mental or physical defect, in which case the consular officer must ascertain whether the petitioner is willing to proceed.
         
         
      3. Multiple Petitions - When multiple petitions are received for the same beneficiary, the consular officer is to suspend action and return the petition to the INS approving office for reconsideration with a memorandum of findings. The INS then must interview each of the parties, and if no one wishes to withdraw, the burden falls to the officer to enter an appropriate order.
      4. Grounds of Inadmissibility - If the consular officer determines that the applicant would be inadmissible as an immigrant on grounds for which no waiver is available after marriage to the petitioner, the visa is to be refused.
      5. Alternate Classifications - A person who qualifies for a K visa is not precluded from obtaining an immigrant or nonimmigrant visa under another classification for which applicable requirements are met.

ADMISSION TO THE UNITED STATES AND ADJUSTMENT OF STATUS

K nonimmigrants are admitted with a single entry visa for 90 days to marry the petitioner. Employment may be authorized during this period. K nonimmigrants are ineligible for an extension of stay or change of status.

Upon marriage to the petitioner within 90 days of arrival, the K-1 fiancé(e) must apply for adjustment to permanent residence. If the marriage does not occur within 90 days, the K nonimmigrant must leave the United States or remain subject to removal.

Any minor unmarried children of the K-1 beneficiary who have been admitted in K-2 status may adjust status to conditional permanent residence.

Should you have questions about the K-1 Visa or other immigration matters contact us for professional and personalized legal counsel.