Maybe you met on a sightseeing trip, or perhaps in a semester-long study abroad program. A friend’s destination wedding. A job training program. A whirlwind romance during what might have otherwise been a simple vacation or a match made by an international marriage magic-maker. Now, all that’s needed is to tie the knot — and secure a visa so that you can marry and live together in the United States.
Considering how often it seems to happen in the movies, getting a visa for the future spouse of a U.S. citizen sounds like it would be easy. So, do you even need a lawyer for a K-1 visa? Read on to find out whether it’s worth it to hire an immigration lawyer when you’d rather be focusing on the honeymoon.
What is a K-1 visa?
A type of family-based immigration, the non-immigrant fiancé(e) visa with the K-1 classification allows the future spouse of a U.S. citizen to come to the U.S. in order to get married within a required time frame. The K-1 visa is one pathway to a marriage-based green card and is not the same as an I-130 petition for a spouse.
The K-1 visa is only for engaged foreign nationals currently living outside of the U.S. If both partners in the engaged couple are currently living in the U.S., then it is likely that your fiancé will need to file for an adjustment of status.
Who qualifies for a K-1 visa and under what conditions?
Being in love isn’t enough for the United States Citizenship and Immigration Services (USCIS), but it’s a good place to start. In order to qualify for a K-1 fiancé visa, engaged couples have to have a valid relationship that is not just for immigration purposes. You must genuinely intend to establish a life together — this is what USCIS calls “bona fide intent.”
Along with being bona fide, both people need to be ready for that next step of legal marriage and be aware that the K-1 visa has a quick expiration date. Couples must marry within 90 days of the foreign fiancé’s arrival in the U.S. on a K-1 visa or it will be invalidated and they will have to leave the country.
That’s not all, though. In order to apply to bring a foreign future spouse to the U.S. on a K-1 visa, the petitioner must
- Be a U.S. citizen (permanent residents cannot sponsor their fiancé)
- Be legally free to marry in the U.S., as must be the foreign partner
- Have met the foreign fiancé in person at least once in the two years before the petition is filed (although you can apply for a waiver)
Being legally free to marry means that neither spouse is legally married to anyone else currently. Any previous marriage must have been legally terminated, and you will both need to submit documentation of the legal termination of previous marriages via one of the following:
- Annulment decrees
- Death certificate; or
- Divorce papers.
Any discovery that a previous marriage was not terminated legally means this marriage is invalid and could result in a revoking of immigration rights — or even deportation.
Furthermore, while many countries still prohibit marriage for same-sex couples, that does not impact their eligibility for the K-1 visa. In Windsor v. United States, the Supreme Court of the United States found a section of the Defense of Marriage Act unconstitutional. This means that the section of the law that denied legal federal benefits to same-sex couples is no longer allowed, and all couples — regardless of the gender of both partners — are allowed the same benefits. These benefits include immigration processes, like sponsoring a fiancé or a spouse, even if the foreign partner’s home country does not recognize same-sex marriages.
Last, you may believe that you have to be wealthy in order to petition to bring your fiancé to the U.S., but that is not true. An executive order in 2019 created a rule that required all family-sponsored immigration petitioners to provide extensive financial and personal documentation in connection with this application, but that is no longer the rule. While the process is not free, it is affordable for most people and now requires only verification of basic financial information of the Petitioner.
What’s the process like for getting a K-1 visa?
Once you’ve decided to make the leap, it’s time to take steps to start your new life together. The first step is for the partner who is a U.S. citizen to file the initial petition.
- File Form I-129F, Petition for Alien Fiance(e) for the fiancé as well as any children to be included under the K-2 category.
- Submit additional evidence if requested by USCIS.
- Receive approval of the Form I-129F petition.
- Receive notification of the NVC sending the approved form to the DOS National Visa Center (NVC).
After the approved petition has been shared with the NVC, the foreign fiancé is able to file an application for a visa.
- Wait for NVC to send the approved petition to the U.S. embassy or consulate where the foreign fiancé is living.
- Receive notice of immigration interview scheduling.
- Undergo medical examination.
- Apply for the visa with the online DS-160 form, print the confirmation, and bring it and any other required forms and documentation to the interview at the U.S. embassy or consulate.
- Receive approval of the visa application and issuance of the visa, which is valid for entry for up to six months.
At either of these two stages, a lack of proper documentation is the most common cause of denial. But even a visa approval is not a guarantee of being allowed into the U.S. at a port of entry. Once in the U.S., the couple has 90 days to marry, and during that time the foreign fiancé may apply for employment authorization. After the marriage, the visa holder may apply for permanent residency — a green card.
Is there a cap on the total number of K-1 visas granted?
There are no caps on the number of fiancé visas able to be issued. However, historical numbers show that both K-1 non-immigration fiancé visas and spousal immigration visas have been fairly consistent, which might be a sign that USCIS is generally looking for the same things in petitions and visa applications. That means that an experienced K-1 visa lawyer will be able to provide you with reliable information about the process.
How can an experienced lawyer make the process easier?
There are a few ways to make your life easier while you wait to find out if you’ll be able to live with your fiancé on U.S. soil. First, create a USCIS online account. This will allow you the chance to review your status online as the process goes through its many steps.
Second, consider hiring an experienced immigration lawyer. While the steps themselves seem easy, it’s the gathering of evidence and documentation that can be stressful and complicated. From requesting copies of old vital statistics records like birth certificates, divorce decrees, and the like, to knowing how to narratively document the timeline and characteristics of your relationship in order to show USCIS that it is bona fide, a lawyer can support you.
Furthermore, since the K-1 visa process automatically means that one partner is living outside of the U.S., you may need the support of a K-1 visa lawyer who knows how to get information and documentation from sources all over the world in a way that will satisfy USCIS’ requirements.
When the future of your family is on the line, the process for getting a K-1 visa is worth getting right. If you are ready to take the next steps toward a K-1 visa, schedule a consultation with Farmer Law today.