The Fiancé(e) Visa

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Are you an engaged couple, and one of you is an American citizen? Do you want to move and build your family in the USA? Looking for the best way to immigrate to the USA? Then this article is for you! 

What is the best way for a couple, when one spouse is an American citizen, to move to the USA? It should be noted that there is no one right way for everyone. First, you need to check which method suits your case and only then start the process of submitting documents. In this article, we will consider one of the possible options, namely, the procedure for obtaining a fiancé(e) visa in the United States.

If you have any questions, don’t hesitate to get in touch with us today. 

General review

As you know, the law differs between foreign nationals who enter the US based on a non-immigrant visa and must leave at the end of the visa, and those who intend to remain permanently.

The fiancé(e) visa, also known as the K-1 visa, is issued by the United States Citizenship and Immigration Services (USCIS) and, in terms of its technical classification, is a non-immigrant visa for people with the intent to permanently reside in the US in the future. In other words, the foreign spouse will receive permanent resident status (green card) at the end of the procedure. 

The K-1 visa is for an American citizen’s fiancé(e). With it, the fiancé(e) has the right to enter the United States legally, get married to an American citizen within 90 days after entry, and subsequently apply for a change in status. Of course, there is no obligation to apply for permanent residence. Some people use the fiancé(e) visa only to enter the US, get married there, and then live in other countries.

It should be noted that the spouse of an American citizen will always be able to apply for a green card.

However, if the couple plans to apply for a green card, they must get married as soon as possible. That way, there will be enough time to obtain an official marriage certificate and prepare all the necessary documents for the change of status, all before the expiration of the K-1 visa.

The fiancé(e) visa was created to prevent unnecessary separation of families caused by significant delays in standard family reunification procedures. 

The historical origin of the K-1 visa is based on the wars fought by the United States in the last century. A significant factor related to globalization and freedom of movement that has shaped the K-1 visa process has been the surge in the number of US citizens trying to bring their foreign brides to the US.

The legal precedent for litigation was set by provisional laws that allowed US soldiers to bring brides to the US after World War II. Later, in the late 1960s, when the temporary laws could no longer apply, many American soldiers returning from Vietnam were unable to return to the US along with their foreign brides.

Due to “gaps” in US immigration law, soldiers were forced to marry in both Vietnam and the United States and were not always able to effectively meet the requirements of both processes.

In addition to soldiers wishing to bring their foreign brides, there was a significant increase in the number of US citizens who intended to marry foreigners. This caused delays in immigration processes and the separation of families. The US legislature was forced to react, and thus the fiancé(e) visa procedure was created. 

The K-1 visa (and K-2) was introduced in 1970 by Public Law 91-225, which amended the Immigration and Nationality Act of 1965. The above amendment, among other things, added H and L visas in addition to the fiancé(e) visa.

According to USCIS statistics, the number of fiancé(e) visas issued in recent years is not very high – averaging about 35,000 per year, which is less than half a percent of all non-immigrant visas and about six percent of all US immigrant visas.

The most popular states in which K-1 visa applicants reside are California, Florida, Texas, and New York. 40% of all K-1 visa recipients live in one of the four states mentioned above (about 15,000 people). So, in 2017, more than 6,000 people came to California, 3,200 to New York, 3,000 to Florida, 2,700 to Texas, and 1,300 to Washington.

According to recent reports from the US Department of State, the number of denials in fiancé(e) visa procedures has increased over the past few years.

The Department of State does not publish country-specific refusal rates, so there is no way to know which countries have higher refusal rates. This means that despite the statistics, in each case, the applicant can only rely on the experience and professionalism of his/her lawyer.

A few years ago, the K-1 visa was more accessible to obtain than other visas. For example, in the past, the immigration office would approve a K-1 visa application without even bothering to interview the US citizen who applied. However, the situation today is entirely different. Under the new rules, a US citizen must be questioned and warned that not all marriages between US citizens and foreign nationals are successful (no matter how trivial it may sound). 

So, what caused this change?

First, the terrorist attack in San Bernardino, California. As you know, the woman involved in the massacre came to the US on a K-1 visa. The second is the election of President Trump.

Statistics on Form I-129F (the form that begins any K-1 visa process, as detailed below) indicate a significant reduction in the number of visas issued on the one hand, and a more extended waiting period, on the other.

In the past, the rate of K-1 visa approvals was about 98%. Currently, according to USCIS, the approval rate has fallen to about 80%. So, the number of visas issued over the past two years has decreased to an average of about 34,000 from an average of 49,000 in 2015. The number of refusals increased from an average of 7,400 in 2015 to 9,300.

It should be recognized that this result is undoubtedly also due to the increase in pending applications. But, overall, the spike in “pending cases” under the Trump administration (which has doubled in recent years) reflects a significant effort to curb immigration through administrative barriers. 

For example, in 2015, the average number of pending applications (per quarter) was approximately 18,000, and in 2018 this number jumped to 29,000. Therefore, it is essential to consider that some cases are initially rejected, but eventually, they are approved either after filing an appeal or after a waiting period in administrative proceedings. Please see USCIS’s statistics on non-immigrant visas.

We see a sharp increase in rejections received outside the US from about 1% to 20%. It’s a little scary that 20% are primarily cases already approved by USCIS.

Interestingly, at the first interview (in the US and outside), 37% of applicants are rejected, and only 55% succeed after filing an appeal or receiving approval after an administrative review.

Note: The fiancé(e) visa has a short validity period – it must be used within 6 months. 

When should I apply for a fiancé(e) visa?

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First of all, the fiancé(e) visa is only available to unmarried couples in which the foreign partner is outside the US. The K-1 visa is unsuitable for couples in which the foreign partner (who is not a US citizen) already resides in the US or if they do not intend to marry in the US.

In particular, the right choice depends on such considerations such as where the couple wants to formalize their relationship, how long a foreign citizen is willing to wait until s/he can enter the United States, and how much money s/he is willing to invest in the procedure, and so on. 

There are not so many reasons to choose a K-1 visa. Below we will consider those scenarios in which it is inappropriate to choose a fiancé(e) visa:

– If an American citizen and a foreign national are already in the United States (in this case, it is better to get married in the United States);

– The US citizen and the foreign national are together outside the US; they can get married there provided that this is possible;

– A foreign national can get another visa, come to the USA, and get married there;

– A US citizen can leave the US and visit a foreign national to marry outside the US. 

As you can see, the choice of procedure for issuing a fiancé(e) visa is necessary only in cases where a foreign national cannot come to the United States. At the same time, an American citizen cannot leave the US.

If a couple really wants to get married, then in most cases, they can do it without a K-1 visa – as they say: where there’s a will, there’s a way.

When should you apply for a fiancé(e) visa?

Generally, a K-1 visa is recommended when one or more of the following conditions are true:

– The engaged couple wants to reunite in the US as soon as possible;

As explained below, the procedure usually takes 7-8 months instead of 10-13 months for a married couple. Of course, there is a possibility that a foreign citizen will visit the US earlier, but with certain restrictions;

– The couple wants to have a wedding in the USA;

– There is no opportunity to get married in the foreign national’s country;

– There is a willingness to invest money (the cost of obtaining a K-1 visa is about two times higher than, for example, obtaining a marriage visa);

– A foreign national is “not eager” to receive a green card immediately after entering the United States;

– After entering the US, a foreign national is ready to wait quite a long time to obtain a work permit.

If you have concluded that the fiancé(e) visa is the best option, you should carefully read the detailed information below about the procedure. 

Conditions for applying for a K-1 visa

So, the K-1 visa is available to the fiancé(e) of a US citizen residing outside the United States. The couple intends to marry within 90 days of the fiancé/bride’s arrival in the United States.

The following conditions must be met to obtain a K-1 visa:

– Applicants must be single and legally eligible for marriage under US law.

– All previous marriages, if any, were legally annulled.

If one of the couples was previously married, then a divorce or death certificate (if applicable) for each of the previous spouses will need to be presented.

The applicant must be a US citizen. A permanent resident (with a green card) is not eligible to apply for a K-1 visa but is eligible for a CR-1 visa, although this process can take up to two years or more. 

– The couple must prove the sincerity of the relationship.

Their relationship can be proven by photographs, correspondence, and written statements from people who know the couple well.

– It is strongly recommended that you set a date for your wedding in the United States in advance and confirm your intention to marry with wedding invitations, rent a banquet hall, or any other evidence.

– Before applying for a visa, the couple must meet physically at least once every two years.

The fact of this meeting can be proved by presenting joint photographs, air tickets, etc. In some cases, this requirement can be circumvented, especially regarding religious or social customs or situations were fulfilling this requirement will cause difficulties in the life of a foreign national.

This does not mean that the couple must have known each other for two years, but only that they have met physically over the past two years. In this regard, it should be noted that a video conference does not count as a meeting.

– An American spouse must meet specific income requirements.

The existence of income can be confirmed by documents such as tax refunds and payrolls. Also, check federal minimum income guidelines on the government website.

The American spouse must earn at least 100% of the federal poverty standards when applying for an engagement visa and 125% of the above standards when applying for a foreign spouse’s permanent residence (green card).

Until the minimum income requirement is met, specific alternatives can be used to pay off debts. The best alternative is to add another sponsor. If a relative or friend is willing to sign an affidavit of financial support, their income information can be used. 

Another option, although problematic, is the ability to show assets such as real estate or securities instead of income. In general, the applicant may be credited with 1/3 of the value of a particular asset (in dollars).

Why is this option problematic? This is because not all embassies are ready to recognize this option as legitimate. Therefore, from a practical point of view, it is advisable to check this issue in advance.

This requirement should not be taken lightly, as failure to comply with it is one of the most common reasons for postponing a case.

Sometimes a foreign national will not be admitted to the K-1 visa process due to a criminal record or other legal violations. If there is a need to apply for a waiver, the consular officer will inform the applicant. 

Examples of inadmissibility clauses: drug dealing, visa violation, misrepresentation, fraud, etc.

It should be noted that the foreign national will be provided with information regarding the US citizen’s criminal record (if any). This information was obtained by USCIS from other government agencies when processing Form I-129F.

Another critical point is the requirement for the couple to prove that they met for marriage. The International Marriage Brokerage Regulation Act (IMBRA) was passed to prevent fake marriages for green card purposes and to protect foreign nationals, especially women and children, from abuse by a sponsoring spouse. 

Procedure and timing

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The fiancé(e) visa process goes through three government systems: the Department of State, the US Citizenship and Immigration Services (USCIS), and US Customs and Border Protection (CBP).

It should be understood that, at every stage, immigration authorities are authorized to conduct background and security checks on both US citizens and foreign citizens. This may include checking various databases (databases of fingerprints, names, or other biographical or biometric information) to discover information about the subject’s criminal record and anything that could endanger US national security.

The first step in the fiancé(e) visa process is to file Form I-129F (along with supporting documents) with Citizenship and Immigration Services.

Previously, applicants submitted their K-1 visa application along with Form G-325A (A Curriculum Vitae Sheet for each spouse). Today, you need to send color photographs of both spouses and proof of payment for opening a case (currently only $535).

Form I-129F is completed for USCIS to recognize the relationship between the applicants as genuine.

If all documents are in order, then USCIS will send Form I-797 within a few weeks – confirmation that the application has been received by them.

This is not yet an approval . 

Also, USCIS may be required to submit additional documents if it deems it necessary and, after receiving additional information, through Form I-129F, confirm the validity of the applicant’s relationship.

If USCIS does not believe in the sincerity of the couple’s relationship, it will reject their application, indicating the reason for the refusal. Applicants will be able to appeal. The deadline for submission is 33 days from the date of receipt of the refusal by mail. Of course, the appeal must be filed with the same party that made the decision.

Once approved, Form I-129F will be sent to the National Visa Application Center (NVC). The application will be valid for four months from the date of USCIS approval. However, the consular officer can extend the validity of the application – if it expires before the completion of the entire procedure. For more information about filing Form I-129F, it is recommended that you visit the USCIS website. 

The next stage is the National Visa Center (NVC). He assigns an application number and sends the approved Form I-129F to the US Embassy or Consulate in the country where the bride/groom lives.

The processing time of the application by the embassy varies from case to case, i.e., depending on specific circumstances. Some cases may take longer because applicants do not follow all instructions or do not provide all the required information. It is essential to ensure that the correct email addresses and phone numbers are entered.

In some cases, the case will be referred for additional administrative review, which may take a long time after the visa interview. You can check the status of your application on the USCIS website. 

After processing the application, an interview with the foreign partner will be scheduled. They will be required to apply for a K-1 visa and bring all forms and documents required for the interview, complete the online form DS-160 and pay a fee of $265 (as of this writing).

Why fill out Form DS-160 instead of Form DS-260? Because the K-1 visa is formally considered a non-immigrant visa. In this regard, this is a kind of an exception to the rules for all other family visas. 

Documents that you need to bring to the interview at the embassy include:

– a printed certificate of completion of the above form DS-160;

– Passport valid for at least six months beyond the estimated period of residence in the United States (unless there is an agreement between the United States and a particular state that provides otherwise);

– Birth certificate;

– Certificate of divorce or death certificate of previous spouses, if both applicants had them;

– Certificate of non-conviction from the country of residence’s foreign partner and from all countries in which he lived for six months or more from the age of 16; 

– Confirmation of passing a medical examination. It should be clarified here that the foreign partner, regardless of age, will have to undergo a medical examination by a qualified doctor.

It is recommended that you refer to the instructions of the specific US embassy or consulate where you apply for a fiancé(e) visa.

K-1 visa applicants are encouraged to complete all vaccinations required by US immigration law. Although these vaccines are not required for this visa, they will be required when applying for a status change. Hence, it is advisable to receive all vaccinations already at this stage; 

– Affidavit of Financial Support (Form I-134). During the interview, the K-1 visa applicant must provide the consular officer with evidence that they will not become a burden on American society. It is enough for one of the spouses to be able to prove their financial solvency.

Please note that this is not the Form I-864 that the US citizen will be required to file at the time of the status change application. In addition, it should be noted that the two above forms have different income requirements.

As stated in this article above, the 125% minimum income requirement (plus last year’s tax refund and other requirements) only applies to Form I-864. As a reminder, concerning Form I-134, the US citizen will be required to show that their income is 100% of the minimum income under federal anti-poverty regulations; 

– Military ID (if any);

– Two photos in the required format;

– Evidence of relationships between partners;

– Confirmation of payment of fees; 

Some embassies have additional instructions, so it is advisable to check this in advance on the website of a particular embassy.

In addition, all documents submitted must be original documents and if applicable, they must be accompanied by English translations.

During the interview, the immigration officer will decide if the foreign partner will be eligible for a visa. If so, a visa stamp will be placed on the foreign partner’s passport, and the visa will be valid for 6 months before the first and only entry on this visa into the United States.

If denied, Form I-129F will be returned to the United States Immigration Services (USCIS). Applicants can try once again to prove their intentions. They may do so based on the returned form or submitting a new request. For more information, see the section on the Immigration Office (DOC) website.

Unfortunately, unlike other types of visas, it is impossible to request an expedited procedure by paying a fee. 

If a permit is granted, the consular officer will return the passport stamped with a K-1 visa and hand over a sealed envelope containing previously submitted documents and other documents prepared by the US Embassy (or consulate). This envelope must not be opened. Only an immigration officer at US Border Control is allowed to open it.

The foreign partner must enter the United States before the expiration of their visa. It is important to emphasize here that, as with any other visa, the issuance of a K-1 visa does not guarantee 100% entry into the United States. The final decision on whether to allow a K-1 visa holder to enter the United States is made by a Border Patrol Officer (CBP). Upon arrival, the foreign partner must be ready to present his passport with a visa to the border guard and hand over the sealed envelope he received at the embassy (which contains all the necessary documents).

After entering the US, the couple will have to get married within 90 days. 

After marriage in the United States, a foreign spouse may apply for a green card by completing Form I-485 (Adjustment of Status) and paying an application fee of $1,140 and an additional $85 for biometrics.

The USCIS will review Form I-485 along with all supporting documents and may request additional information. The couple will also have to go through another interview.

It is important to note: that if, on the date of receipt of Form I-485 approval, the spouses have been married for less than two years, then USCIS will grant the foreign spouse permanent resident status and issue him a residence permit temporary (conditional) green card, valid for two years. A probationary period is available by filing Form I-751 90 days before the expiration of the green card. 

Each case is different, and the duration of the process varies. The Immigration Service begins processing the case in the order in which it was received. This part of the fiancé(e) visa procedure can take more than a year. Thus, the total time from initiation to obtaining a green card can take one and a half to two years or even more.

The total cost (at the time of this writing) will be over $3,000. Generally, fees are charged for the following services:

– Submission of Form I-129F;

– Submission of online form DS-160;

– Medical checkup;

– Other expenses such as necessary translations, photographs, fees for obtaining documents (such as a passport, police clearance certificate, birth certificate, etc.), travel expenses, and other incidental expenses.

– Filing Form, I-485 (Change of Status); 

A few words about the children of a foreign partner. An unmarried child under 21 may be eligible for a derivative K-2 visa. It is essential to include the names of the children on the original Form I-129F. Separate applications must be filed for each applicant; presumably, each applicant must also pay fees separately.

Children of the foreign partner will only be able to enter the US on a K-2 visa until the age of 21, and while they are unmarried. Under no circumstance will the child be able to enter the US before their parent.

There is no need for separate applications if the children enter the United States within one year of the issuance of the K-1 visa. However, if the children are expected to arrive later than one year after receiving the K-1 visa, then separate applications for an immigrant visa will need to be submitted.

If the child has a valid K-2 visa and the parent has already received a residence permit, he can travel on their own visa.

Children will also be eligible to apply for a green card by filing Form I-485 (at the same time as the foreign partner, or later, but not earlier). In this case, the condition for obtaining a green card will be their unmarried status. 

After marriage, a separate change of status application for children must be submitted. A married couple cannot include them in their application for permanent resident status.

Regarding a child of a foreign citizen (who is not a biological child of a US citizen), when applying for a change of status after marriage, the US citizen must prove that he/she is the stepfather/stepmother (before the child turns 18).

K-1 (as well as K-2) status will automatically expire after 90 days and cannot be renewed.

If the couple does not marry within 90 days, the foreign partner and their children will be forced to leave the United States. For if they don’t, it could lead to forced deportation.

As outlined above, violating US immigration law will have far-reaching implications for the foreign partner’s future eligibility for US immigration benefits.

For the foreign partner to remain in the US, they must marry only the original applicant and no one else.

Of course, if you get married after 90 days, you can still apply for a marriage visa (Form I-130), but that’s another story. 

Work Permit, Travel Permit, and Social Security Number

Question: When will a foreign citizen who entered the US based on a fiancé(e) visa be allowed to start legal work?

Answer: If a foreign national intends to find work while their application for permanent resident status is still pending, they will be able to apply for a work permit using Form I-765 immediately after entering the United States.

In such a case, the work permit will only be valid for 90 days (from the date of entry) or until marriage, whichever comes first. Of course, after applying for a status change, the foreign partner will have to apply for a re-employment permit (after marriage).

In fact, it sometimes takes more than three months to get a work permit. In light of the above, it is clear that in many cases – and to save a significant amount of money – it is generally not recommended to apply for a work permit before marriage.

Another option (and, as we said above, a better one) is to apply for a work permit in parallel with the application for a green card (after marriage, of course).

In this case, Form I-765 must be filed with Form I-485, and the certificate (EAD) will be valid for only one year (with the possibility of renewing the certificate for another year each time).

The I-765 filing fee is $410 plus $85 for biometrics.

After obtaining a work permit, the foreign spouse will be eligible to apply for a social security number.

It is essential to add that if the fiancé(e) intends to leave the United States. At the same time, the adjustment of the status application is being processed. They must apply for an advance parole form I-131 and a $575 filing fee. 

Conclusion

If an American citizen plans to marry a non-US citizen in the United States, then the foreign fiancé(e) will need a K-1 visa to enter the United States. Then, after the couple reunites, they formalize their relationship and apply for a status change for a foreign partner.

However, the engagement of a US citizen does not necessarily mean that their foreign partner will be eligible for a K-1 visa. Although officially – this visa is not an immigrant visa, the applicant will still have to meet several criteria that generally characterize the procedures for obtaining visas for the purpose of immigration.

Not everyone will meet the basic visa requirements, as detailed in this article above.

Each case has different consular officers, and some countries may have additional special requirements.

Therefore, we recommend carefully checking the individual circumstances of the case before starting the fiancé(e) visa procedure to ensure that all requirements are met.

A lawyer with extensive experience in immigration will walk you through the entire procedure and guarantee that everything will go smoothly and quickly (if possible, taking into account all the bureaucratic obstacles you will have to face).

With the Cohen Brosh Law Office, you can be sure that your case is in good hands.

Please contact us today, and we will be happy to help you!

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