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FIANCÉ(E) (K-1) VISA OVERVIEW

The K-1 category permits the fiancé(e) of a U.S. citizen petitioner to enter the United States for a 90-day period to marry the U.S. citizen and apply for permanent residence. Because it facilitates the entry of an intending immigrant, K visa processing is similar to immigrant visa processing for immediate relatives. Additionally, K visa processing can take longer than processing for other nonimmigrant visas as it entails the submission and consideration of comprehensive biographical and admissibility data at two stages of the process.

BASIC REQUIREMENTS

A U.S. citizen files a petition with the appropriate Department of Homeland Security (DHS) office in the United States. The petition must satisfactory evidence that the fiancé(e) and the U.S. citizen petitioner:

• Have previously met in person within two years of the date of filing the petition, unless a waiver is granted;

• Have a bona fide intention to marry; and

• 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 you do not marry within 90 days, your fiancé(e) (and any dependents) will be required to depart, and failure to depart renders them removable (deportable).

KEY CONSIDERATIONS

The “Previous Meeting” Requirement

The law requires that you and your fiancé(e) meet personally within two years prior to filing the petition. The law gives the attorney general discretion to waive this requirement, but provides no specific guidelines. As interpreted in DHS regulations, the personal meeting requirement may be waived upon proof that compliance would:

• Result in extreme hardship to the petitioner; or

• 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.

A denial of the K petition for failure to meet or obtain a waiver would not affect your right to the filing of a subsequent petition after you two have met.

Freedom to Marry

Both of you must be free to marry and must intend to enter into a valid marriage within 90 days immediately following your fiancé(e)’s entry into the United States. Thus, we must must show that any prior marriages have terminated, and there may not be any other prohibition against the proposed marriage (e.g., marriages that violate existing laws).

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Mandatory Submission of Information Pursuant to IMBRA

The law was amended by the International Marriage Broker Regulation Act of 2005 (IMBRA) to mandate the reporting of certain information to the fiancé(e) about the U.S. citizen petitioner. In essence, IMBRA was enacted to address issues of domestic violence and abuse so as to protect K visa beneficiaries from possible violent petitioners. This law applies to all I-129F petitions for K status filed on or after March 6, 2006.

Convictions for Certain Crimes

A petitioner for a K-1 fiancé(e) must submit with the Form I-129F, information on any convictions of the petitioner for certain “specified crimes.” Such crimes include, but are not limited to, “domestic violence,” “sexual assault,” “child abuse and neglect,” “dating violence,” “elder abuse,” and “stalking.” The petitioner is required to submit certified copies of all court and police records showing the charges and dispositions for every such conviction. This is required even if the petitioner’s records were sealed or otherwise cleared. The consulate officer will disclose this information to the fiancé(e) during the consular interview.

International Marriage Brokers

IMBRA also mandates the regulation of international marriage brokers. Consequently, K-1 petitioners are required to inform U.S. Citizenship and Immigration Services (USCIS) if they met their fiancé(e) or spouse through the services of an international marriage broker and to provide information about the broker on Form I-129F. IMBRA defines a marriage broker as any legal entity or individual “that charges fees for providing dating, matrimonial, matchmaking services, or social referrals between U.S. citizens or nationals or aliens lawfully admitted to the United States as permanent residents and foreign national clients by providing personal contact information or otherwise facilitating communication between individuals.”

Filing Limitations

IMBRA imposes limitations on the number of petitions a K-1 petitioner may file or have approved without seeking a waiver. If the petitioner has filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver.

General Waiver

A request for waiver may be presented with the I-129F by attaching a signed and dated letter, requesting the waiver and explaining why a waiver would be appropriate under the circumstances, together with any evidence in support of the request. The secretary of DHS has the discretion to waive the applicable time and/or numerical limitations if in his or her estimation justification exists for the waiver, except where the petitioner has a history of violent criminal offenses against a person.

Extraordinary Circumstances Waiver in Cases Involving a History of Violent Offenses

Where there is a history of violent offenses, the limitations may not be waived unless the petitioner can demonstrate extraordinary circumstances. The secretary of DHS has the sole discretion to determine the credibility of the evidence and the weight to be accorded to such evidence.

Mandatory Waiver in Cases with a History of Violent Offenses Where Petitioner Was Subjected to Battery or Extreme Cruelty

IMBRA mandates that the secretary of DHS approve a waiver request if the petitioner can establish that he or she:

• Was battered or subjected to extreme cruelty by his or her spouse, parent, or adult child at the time he or she committed the violent offense(s); and

• Was not the primary perpetrator of violence in the relationship;

• Was acting in self defense;

• Violated a protective order intended for his or her protection; or

• Was convicted or pleaded guilty to committing a crime that did not result in serious bodily injury and there was a connection between the crime committed and the battery or extreme cruelty.

Mandatory Tracking

IMBRA requires USCIS to track repeated petitions for K visas. Once a petitioner has two approved petitions for a K-1 or K-3, if the petitioner files a third petition less than 10 years after the date the first petition was filed, USCIS must notify both the petitioner and the fiancé(e) of the number of previously approved fiancé(e) or spousal petitions.

Adam Walsh Act Prohibition Against Filing Family-Based and I-129F Visa Petitions

The law renders any K nonimmigrant visa or family-based immigrant visa petitioner ineligible for filing if that petitioner has been convicted of a “specified offense against a minor”. A petitioner who has been convicted of a specified offense against a minor is not simply prohibited from filing on behalf of a minor child. The petitioner is prohibited from filing on behalf of “any” fiancé(e) and many other family-based beneficiary. “

The term “specified offense against a minor” means an offense against a minor (defined as an individual who has not attained the age of 18 years) that involves any of the following:

• An offense (unless committed by a parent or guardian) involving kidnapping;

• An offense (unless committed by a parent or guardian) involving false imprisonment;

• Solicitation to engage in sexual conduct;

• Use in a sexual performance;

• Solicitation to practice prostitution;

• Video voyeurism

• Possession, production, or distribution of child pornography;

• Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or

• Any conduct that by its nature is a sex offense against a minor.

Consular posts are instructed to return to the National Visa Center (NVC) any petition filed by a person who has been convicted of one of the offenses set forth in the law. This bar against filing a petition will not apply if the Secretary of Homeland Security determines that the petitioner poses no risk to the beneficiary. If the petition reflects a “no-risk determination” and the consular officer intends to approve the visa application, the consular officer should nonetheless notify the beneficiary of such convictions.

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PROCEDURAL CONSIDERATIONS

Place of Filing the Petition

The K-l visa petition is filed by the petitioner “with the director having administrative jurisdiction over the place where the petitioner is residing in the United States.” The appropriate “director” for purposes of adjudicating K petitions is the appropriate USCIS regional service center director. The K-1 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 and then forward the completed application to the appropriate USCIS office in the United States.

The K-l Petition and Supporting Documents

The K-l petition is filed on Form I-129F and must include color photographs of each of you and a signed USCIS Form G-325A for both you and your fiancé(e). The petition must be supported by proof that the two of you 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 from each of you and persons with personal knowledge of your relationship, dated photographs showing the two of you together, correspondence between you and your fiancé(e) by letter or e-mail, telephone bills, receipt for engagement ring, documentation of wedding plans (such as invitations and receipt for deposit for a party hall), and similar types of evidence are very valuable in establishing these requirements.

Upon receipt of the petition, USCIS creates an “A” file for your fiancé(e). On approval, USCIS sends the petition to the appropriate consular post, which is usually the consulate located in the country where your fiancé(e) resides. An approved petition remains valid for four months from the date of USCIS action. A consular officer may revalidate the approved petition for additional four-month periods upon proof that you two are free to and intend to marry within the 90-day period. An approved K-1 petition is automatically terminated if you die or withdraws the petition before your fiancé(e) arrives in the United States.

K-2 Dependents

The minor unmarried children of your fiancé(e) who are listed in the petition may be accorded K-2 status if accompanying or following-to-join your fiancé(e). Neither a separate petition nor a separate filing fee is required.

THE VISA PROCESS

Visa Application

Upon receipt of an approved petition from USCIS, the consulate generally issues a letter to your fiancé(e) outlining the steps for visa application. Since the K-l nonimmigrant seeks to enter the United States ultimately to apply for immigrant status, he or she must present the following documents, some of which can take considerable time to obtain:

• Form DS-160 which is filed electronically;

• Valid passport;

• Birth certificate;

• Evidence of the termination of prior marriages (even if such evidence was a required part of the underlying petition);

• Police certificates, if available, from the beneficiary’s present place of residence and any place in which he or she has resided for six months or more since reaching age 16;

• Form DS-157 medical examination record; and

• Evidence of available financial resources to demonstrate that the beneficiary will not become a public charge.

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 officer interviews your fiancé(e) to determine eligibility as if your fiancé(e) were applying for an immigrant visa as an immediate relative. If the consular officer finds your fiancé(e) to be eligible, he or she issues the K visa valid for six 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 your fiancé(e) for presentation at the port of entry.

Processing Issues

Factual Inconsistencies—If the consular officer finds that your fiancé(e)’s marital history is inconsistent with statements in the petition, or that children of your fiancé(e) were not named in the petition, he or she is required by law to suspend action and return the petition initially to the NVC for reconsideration with a memorandum of findings.

Pregnancy of Your Fiancé(e)—Where the beneficiary is pregnant and this condition is not disclosed on the petition, the consular officer should confirm that you are aware of the pregnancy and solicit your desire to proceed with the case. If the consular officer is satisfied in this regard, he or she need not return the petition.

Multiple Petitions—When multiple petitions are received for the same fiancé(e), the consular officer is to suspend action and return the petitions to the NVC. The NVC will then forward it to USCIS for reconsideration with a memorandum of findings. USCIS 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.

Grounds of Inadmissibility—The regulations direct consular officers to determine eligibility for the K-l visa as if the alien were applying for an immigrant visa. If the consular officer determines that your fiancé(e) would be inadmissible as an immigrant on grounds for which no waiver is available after marriage to you, the visa is to be refused. However, if the consular officer determines that a waiver would be available to your fiancé(e) once married, the consular officer may return the petition to USCIS for reconsideration. Before initiating this waiver process, however, the consular officer should first ensure that you were or is aware of the ineligibility and still wishes to pursue the marriage. If not, the petition should be returned to the NVC and no waiver process commenced.

If USCIS reaffirms the approval, the consular officer should assist your fiancé(e) in completing the Form I-601 waiver application and simultaneously submit the I-601 and Form OF-221, two-way visa action request and response, to the appropriate USCIS office. Upon a favorable determination, the waiver will be granted conditional upon your fiancé(e) concluding a valid marriage with you within 90 days of arrival in the United States. Note that reconsideration by USCIS and processing a waiver application will further delay the issuance of the K-l visa.

ADMISSION TO THE UNITED STATES AND ADJUSTMENT OF STATUS

K-1 nonimmigrants are admitted with a single entry visa for 90 days to marry the petitioner. Employment may be authorized during this period. The general rules regarding visa-exempt persons do not apply to K nonimmigrants, who must be in possession of a valid visa. Additionally, K nonimmigrants are ineligible for an extension of stay or change of status.

Upon your marriage within 90 days of arrival, your fiancé(e) must apply for adjustment to permanent residence. If the marriage does not occur within 90 days, your fiancé(e) must leave the United States or remain subject to removal. The 90 day rule is critical because the only ground on which a K fiancé(e) may adjust status is marriage to the petitioner.

The minor unmarried children of your fiancé(e) who have been admitted in K-2 status may adjust status to conditional permanent residence.

Services Performed During A Typical Fiancé(e) Case:

Examine your unique facts in order to identify any problems or issues, and discuss with you the best approach in dealing those problems or issues.

• Create an online account for you and your fiancé(e) to be able to follow your case process, upload and download questionnaires, forms and supporting documents. We have created this to eliminate most of the time lost with international mailings.

• Prepare your I-129F Petition For Alien Fiancé(e) and the biographic forms for both you and your fiancé(e).

• Prepare attorney certified copies of your original documents for submission to the USCIS and return the original documents to you.

• Prepare the petitioner’s affidavit of support for your fiancé(e) to hand carry to his or her visa interview (There is an additional attorney fee to prepare an affidavit for a cosponsor, if needed).

• Prepare your and your fiancé(e)’s personal declarations as to your intent to marry.

• Prepare an attorney cover letter for your I-129F submission and combine it with the USCIS forms, declarations and evidence to create a well-documented submission that avoids novice mistakes, and submit it to the appropriate USCIS Service Center.

• Make a request with your I-129F submission that the USCIS Service Center send cable notification to the U.S. Consulate upon the approval of your petition.

• Mail the receipt notice to you and show you how you can use the USCIS website to monitor the processing of your case.

• Show you how to use the USCIS processing time reports to determine if your case is taking too long.

• Monitor the progress of your petition with the USCIS Service Center and contact them if they make any errors or are not processing as fast as they should.

• Supply you with copies of all correspondence sent to my office from the USCIS about your case.

• Contact the USCIS to resolve any mistakes they might make during the processing of your petition.

• Upon arrival of the approval notice, immediately ship to the U.S. Consulate an attorney certified copy of the approval notice, a complete attorney certified copy set of the entire fiancé(e) submission, along with a letter and official notice of representation form, identifying myself as your attorney of record requesting they include this material in your fiancé(e)’s file and dispatch “packet 3” to your fiancé(e) if they have not already done so and if they are willing to do so.

• Contact the U.S. Consulate to resolve any mistakes they made during the processing of your fiancé(e)’s application for the K-1 visa.

• Prepare a new declaration for you to sign, which your fiancé(e) will have on hand at the visa interview which states you are still legally free to marry and that you still intend to marry your fiancé(e) within 90 days of your fiancé(e)’s entry into the USA

• Supply information and tips to help your fiancé(e) prepare for the visa interview and to help your fiancé(e) avoid making mistakes.

• Be there throughout the entire process to answer your or your fiancé(e)’s questions about the USCIS and/or Consular processing as they come up.

K-1 Fiancé(e) Visa - Full Service Representation: $1,500.00 + USCIS filing Fee $535.00 = Total: $2,035.00.

Additional Affidavit Of Support For A Cosponsor:

I charge an additional fee of $300.00 to prepare an additional affidavit of support package for a cosponsor, if needed.

IMBRA Waiver (International Marriage Broker Regulation Act) or other Waivers:

My flat rate attorney fee does not cover any additional time required to prepare waivers. Any waiver would require an additional fee deposit would be billed at a rate of $265.00 per hour.

Because you cannot get your immigration by doing nothing.

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