THERE are so many movies and reality shows that focus on fiancé visas, like “90 Day Fiancée,” and it’s hard to sort through fact from fiction. Many people also come to me, asking the same questions that many of you may be asking – “How do I bring my boyfriend or girlfriend to the U.S. so we can marry, and live happily ever after?”
Here are some important facts and tips about the K-1 visa that are sometimes overlooked by people, and are not clearly shown on movies or reality shows:
- The K-1 visa is available only for U.S. citizens. Lawful permanent residents or green card holders cannot file a K-1 petition for their loved one. They would either have to wait until they become a U.S. citizen and file the K-1 petition, or marry the person and file an F-2A (green card spouse petitioning spouse) petition.
- In some cases, the K-1 visa may be the only way to bring your loved one to the U.S. This could include same-sex couples and divorced U.S. citizens who want to bring their fiancée from the Philippines. While same-sex marriage is recognized in the U.S., it is not in many other countries. Therefore, marrying your same-sex partner abroad, and petitioning them as a spouse could not be possible. Similarly, in the Philippines, divorce is not recognized. A divorced U.S. citizen could not go to the Philippines and marry their loved one. The K-1 petition allows the U.S. citizen to bring their loved one to the U.S. and marry in the U.S.
- Both partners must be free to marry each other. In other words, both partners should be unmarried. If either partner is still married to someone else, that first marriage must be terminated before a K-1 petition can be filed. I want to remind people that “separated is not single.” I have come across some cases where a person has not seen their spouse in many years, and so they considered themselves to be single. That is not the case. A person must be unmarried, either because they had never married, they are a widow, or they had a previous marriage terminated in court through a divorce or annulment.
- The couple must have met in person within two years of filing the K-1 petition. I know there have been travel restrictions and COVID lockdowns preventing people from traveling. If, for example, the last time you saw your loved one was in December 2019, then you would have until December 2021 to file the K-1 petition. If it has been more than two years since you last saw each other in person, you’d have to meet again in person. There are some rare exceptions, such as if a person’s religion forbids them from seeing each other before the wedding day or if the American can demonstrate “extreme hardship.” But that is difficult and uphill to prove.
- The U.S. citizen has to file the Form I-29F, which takes approximately 8 to 10 months to process at USCIS. Although the State Department had stated it would prioritize K-1 petitions, it seems USCIS is not. What’s worse is a spousal petition is taking over two years for USCIS to process. So, even if a person is free to marry abroad and petition their loved one as a spouse, it may be faster to bring them here on the K-1 visa.
- A K-1 petition can be extended by the consul if it has expired. A K-1 petition is typically valid for four months. But during this time of COVID lockdowns, presidential proclamations, etc., many K-1 petitions may have already expired. In such cases, the consul has the authority to extend that petition and issue the visa, without the U.S. citizen having to file a new K-1 petition.
- Your loved one cannot come to the U.S. on a visitor’s visa with the intention to marry, as a way to bypass the K-1 petition. If a person enters as a visitor with the intention to immigrate or marry that could be considered fraud. That is because they would be lying at the airport when asked about the purpose of their visit. However, if after arriving in the U.S. they fall in love and want to get married, that could be a different story.
- The couple must marry within 90 days of the person’s entry to the U.S. If they do not marry, the person must depart the U.S.
- If the couple marries after 90 days, the U.S. citizen has to file a spousal petition. This is because the K-1 status had expired.
- A K-1 petition includes children under 21. A separate K-2 petition is not required for the children of the K-1 beneficiary.
- A K-1 petition provides a loophole for children over 18 to come to the U.S. Under U.S. immigration law, in order for a U.S. citizen to petition stepchildren, they must marry before the stepchild’s 18th birthday. But what happens if the loved one has a child who is already over 18? In that case, the U.S. citizen can bring that child to the U.S. on a K-2 visa, as long as the child arrives before their 21st birthday.
- A person entering the U.S. on a K-1 visa can only adjust status through the U.S. citizen petitioner. If a person enters the U.S. on a K-1 visa and, for whatever reason, they do not marry that American, but instead marries someone else, or is petitioned by an employer, they are not allowed to get a green card in the U.S. They would have to return to their home country, most likely with an approved provisional waiver. In other words, if you enter the U.S. on a K-1 visa, the one and only way to get a green card is through that U.S. citizen. However, if they do marry the U.S. citizen within 90 days, and adjustment of status is filed, but they then get divorced before the person gets a green card, in some cases, it could be possible to still get the green card through that U.S. citizen, despite the divorce.
Obviously, I have not gone through in detail every single step, requirement, or form for a K-1 visa. But if you are thinking about bringing a loved one to the U.S., I would recommend that you consult with an attorney who can evaluate your case and help you prepare, package, and file the case so you can be living happily ever after in the U.S. as soon as possible.
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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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