Applying For The Fiancée Visa
STEP 1: File The K-1 Petition
The U.S. citizen fiancé(e) who wants his or her foreign national fiancé(e) to travel to the United States to get married and live in the U.S. must file Form I-129F, Petition for Alien Fiancé(e) in the United States.
NOTE: Only a U.S. citizen fiancé(e) can file USCIS Form I-129F, Petition for Alien Fiancé(e), on behalf of his or her fiancé(e).
A. Supporting Documents And Forms To Be Submitted Along With The I-129F Petition
The U.S. citizen filing the petition must include the following items with the petition submitted to the USCIS:
- Form I-129F, Petition for Alien Fiancée
NOTE: If the foreign national fiancé(e) has unmarried children who are under 21, they are eligible to accompany the fiancé(e), but they must be listed on the form.
- Evidence of U.S. citizenship, including, but not limited to, a copy of the U.S. birth certificate, U.S. passport, Certificate of Naturalization, or Certificate of Citizenship
- Two Form G-325A, Biographic Data Sheets, one each for the U.S. citizen and foreign national fiancé(e)
- One color passport-size photo of the U.S. citizen and one of U.S. citizen fiancé(e) taken within 30 days of filing (photos must meet passport photo requirements)
- A copy of any divorce decrees, death certificates, or annulment decrees if either the U.S. citizen or foreign national fiancé(e) have been previously married
- Proof of permission to marry if the U.S. citizen or foreign national fiancé(e) are subject to any age restrictions. (For instance, in some U.S. states, individuals who are under a certain age must receive special permission to marry)
NOTE: The Form I-129F petition cannot be filed at an embassy, consulate or U.S. immigration office abroad.
B. Validity Of The Petition
An approved K-1 petition is valid for a period of four months from the date of USCIS action. If the visa has not been issued within the four month period the petition must be revalidated by a consular officer.
C. Revocation Of The Petition
Immigration regulations require that upon the death of a U.S. citizen petitioner or the written withdrawal of a K-1 petition prior to the arrival of the foreign national beneficiary in the United States, the petition will automatically be terminated. In either of these cases the consular officer returns the petition, with an appropriate memorandum, to the approving DHS office for revocation.
D. Processing Time
The length of time required to process a K-1 petition varies from case to case according to circumstances. The current processing time for the I-129F petition is 4 to 6 months; however, some cases can take much longer. As with all cases filed with the USCIS, the fiancé(e) petitions are processed in the order they are received. Once processing is completed, the approved petition is forwarded to the National Visa Center (NVC). The NVC will then send the petition to the U.S. Embassy or Consulate, which will need time to process the fiancé(e) visa.
STEP 2: Follow Instructions From National Visa Center (NVC)
After the USCIS has approved the K-1 petition, it is forwarded to the National Visa Center (NVC) where background checks are performed on the fiancé(e)s. The NVC will forward the petition to the consulate that will conduct the visa interview, however, the consulate will not schedule an interview for the foreign national fiancé(e) until the NVC checks have been successfully completed.
STEP 3: Attend Interview At The U.S. Consulate Abroad
When the approved petition and background checks have been received by the U.S. consulate that will conduct the interview, the consulate will instruct the foreign national fiancé(e) to undergo a medical examination at a designated local clinic and schedule an interview. If there are no problems with the medical exam, the interview is successful, and all the paperwork is in order, the K-1 visa will be issued shortly after the interview. In some embassies it is issued on the day of the interview, but at most it is issued in the week following the interview. The foreign national fiancé(e) is then free to travel to the United States. The K-1 visa is valid for a six month period and for only a single entry.
NOTE: The foreign national fiancé(e) of a U.S. citizen is required to attend an interview at the U.S. consulate in his or her home country or country of residence prior to travelling to the U.S. on a K-1 visa. This requirement cannot be waived.
A. Checklist – List Of Documents For K-1 Fiancé(e) Visa Interview
- Biographical Form DS-230 filled out in English (part 1 only). A separate form must be filled out for each immigrating child over 16 years of age
- Nonimmigrant Visa Application, Form DS-156, prepared in duplicate. A separate Form DS-156 must be filled out for each immigrating child
- Completed Nonimmigrant Fiancé(e) Visa Application, Form DS-156K
- Passport valid for travel to the U.S. with a validity date at least six months beyond the intended travel date. If an immigrating child is included in the parent’s passport include a photocopy of the first page and the page with information about the immigrating child
- Original birth certificate
- Evidence of termination of prior marriage(s) (if applicable), original, photocopy and translation into English
- Police clearance certificates from all places where the foreign national fiancé(e) has lived since age 16 for more than six months
- Documents confirming relationship with the U.S. citizen fiancé(e): photos of U.S. citizen petitioner and foreign national beneficiary together, letters to each other, phone bills, airplane tickets, emails, statement of how, when and where U.S. citizen and foreign national fiancé(e) met, etc.
- Results of Medical Examination in a sealed envelope
- Two color, non-glossy full-face 2 X 2 in (50×50 mm) photos. These should be passport style photos with the eye level between 28mm and 35mm from the bottom. Another two photos will be required for the medical examination. Photos should be cut apart and signed on the back using the full name
- Visa application fee of $350 for each applicant
- Form I-134, Affidavit of Support
NOTE 1: The consular officer may ask for additional information according to the circumstances of the case. Documents in foreign languages should be translated.
NOTE 2: Take clear, legible photocopies of civil documents, such as birth and marriage certificates, to the interview. Original documents will be returned to the applicant.
B. Affidavit Of Support
A Form I-134, Affidavit of Support from the U.S. citizen petitioner, while not always required, will help assure the Consular Officer that the foreign national fiancé(e) will not become a public charge (welfare recipient) in the United States after entry. The foreign national fiancé(e) may also provide proof that he or she can support him or herself. The U.S. citizen has to file an I-134 and demonstrate the means to maintain an annual income equal to at least 100% of the federal guidelines.
C. Duration Of Stay On K-1 Visa
The fiancé(e) of U.S. citizen is allowed to enter the U.S. for 90 days on a K-1 single-entry visa and must marry the U.S. citizen petitioner during that 90-day period.
NOTE: If the marriage does not occur within 90 days, the K-1 nonimmigrant must leave the U.S. or become subject to removal.
D. Extension Of Stay On K-1 Visa
The foreign national fiancé(e) on the K-1 visa is not entitled to apply for extensions of stay on the K-1 fiancée visa.
E. Change Of Status From K-1
The foreign national fiancé(e) on the K-1 visa or their dependents on K-2 are not allowed to change status from K-1 or K-2 to any other nonimmigrant visa category. They may only apply for Adjustment of Status to permanent residence after the foreign national fiancé(e) marries the U.S. citizen who filed the K-1 petition within 90 days of entry.
F. Working On The K-1 Visa
Upon arrival in the United States, the foreign national fiancé(e) of a U.S. citizen may immediately apply for permission to work by filing Form I-765, Application for Employment Authorization, with the USCIS Service Center having jurisdiction over the place of residence.
Any work authorization based on a nonimmigrant fiancé(e) visa would be valid only for the 90 days of authorized stay granted upon entry. The foreign national fiancé(e), however, will be eligible to apply for work authorization when the adjustment of status application is filed. In this case, foreign national fiancé(e) would file Form I-765 together with the Form I-485 soon after the marriage.
NOTE: USCIS might not be able to process the work permit within the 90-day time limit for marriage to take place.
G. Adjustment Of Status After Marriage To The U.S. Citizen Fiancé(e)
Once the marriage has taken place in the U.S., the foreign national fiancé(e) must apply for Adjustment of Status (AOS) to become a permanent resident. It is important that the foreign national fiancé(e) files the AOS application before the 90-day period of authorized stay expires, otherwise the foreign national fiancé(e) will fall out-of-status. The foreign national fiancé(e) may apply for work authorization (Employment Authorization Document or EAD) or permission to travel outside the U.S. before the permanent resident status is granted (Advance Parole or AP) concurrently with the Adjustment of Status application.
NOTE: As the marriage would be less than two-years old, the spouse of U.S. citizen will first obtain a two-year conditional Green Card and at the end of two years, he or she will have to file additional paperwork for the conditions to be lifted.
K-2 Visa For Dependents
The minor unmarried child(ren) of the foreign national fiancé(e) may receive a derivative K-2 visa from the parent’s fiancé(e) petition. The child(ren) may travel with the K-1 visa holder or travel later (follow-to-join) as long as it is within one year from the date of issuance of the K-1 visa. A separate petition is not required.
NOTE: If the child is travelling to the U.S. after one year from the date of issuance of the K-1 visa, a separate immigrant visa petition is required.
K-1 Visa Possible Problems
The following are some examples of situations that could lead to possible problems for both the foreign national fiancé(e) and U.S. citizen petitioner during the K-1 visa process:
A. Foreign National Fiancé(e) and U.S. Citizen Met through and International Marriage Broker
If the foreign national fiancé(e) and the U.S. citizen met each other through the services of an international marriage broker, the U.S. citizen petitioner is required to notify USCIS of that fact when filing the Form I-129F petition. The term “international marriage broker” means a corporation, partnership, business, individual, or other legal entity, whether or not organized under any law of the United States, that charges fees for providing dating, matrimonial, matchmaking services, or social referrals between United States citizens or nationals or aliens lawfully admitted to the United States as lawful permanent residents and foreign national clients by providing personal contact information or otherwise facilitating communication between individuals.
B. The International Marriage Broker Regulation Act (“IMBRA”)
Immigration regulations under IMBRA prohibit the issuance of a K-1 fiancé(e) visa without an approved waiver in two sets of circumstances:
1. A U.S. citizen petitioner with a criminal conviction for a specified crime, and
2. A U.S. petitioner who has previously filed K-1 visa petitions or had a K-1 visa petition approved within the previous two years.
a. The U.S. citizen petitioner has a criminal conviction
If the U.S. citizen petitioner has any criminal convictions that that fall under one or more of the following categories, he or she will have to provide certified copies of any related court and/or police records regarding that criminal history. The petition may be approved, even if this type of criminal history is present. However, any such criminal history will have to be disclosed to the foreign national fiancé(e)
i. domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse and stalking
ii. homicide, murder, manslaughter, rape, abusive sexual conduct, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment or an attempt to commit any of these crimes or
iii. three or more convictions for crimes relating to a controlled substance or alcohol not arising from a single act
b. The U.S. Citizen Fiancé(e) Has Filed Two or More Fiancé(e) Visa Petitions in Past 2 Years
If the U.S. citizen fiancé(e) has filed two or more fiancé(e) visa petitions at any time in the past or has had a K-1 visa petition approved within 2 years of the filing of the current petition, he or she must submit a written request with the petition accompanied by documentation of the claim to the waiver.
C. Significant Age Difference Between The Foreign National Fiancé(e) And U.S. Citizen Fiancé(e)
If there is a very large age difference between the foreign national fiancé(e) and the U.S. citizen petitioner, the chances are greater that the petition will receive higher scrutiny and may be denied because the U.S. immigration officers may assume that the marriage was entered into solely to obtain immigration benefits. To overcome this, both the parties should collect and submit substantial evidence to prove that they truly intend to marry each other and that it will be a good-faith marriage, i.e. not one solely entered into for immigration benefits.
D. The Foreign National Fiancé(e) And U.S. Citizen Petitioner Have Not Met In-Person In The Past 2 Years
If the foreign national fiancé(e) and U.S. citizen petitioner have not met each other in-person in the past two years, the U.S. Citizen petitioner has to provide a detailed explanation and evidence of extreme hardship or customary, cultural or social practices that prohibits or restricts the couple from meeting in-person.
TIP: These are very difficult standards to meet.
E. Marriage Could Not Take Place Within 90 Days Of Entry
If, for any reason, the foreign national fiancé(e) and the U.S. citizen petitioner do not marry within 90 days of foreign national fiancé(e)’s entry into the U.S., the status of the foreign national will automatically expire at the end of the 90 days authorized stay. The foreign national fiancé(e) will not be able apply for an extension of status, and should leave the United States at the end of the 90 days. If the foreign national fiancé(e) does not depart, he or she would be in violation of U.S. immigration law, which may prohibit him or her from entering the U.S. in future.
F. Adjusting K Visa Status If The Marriage Ends In Divorce
The government has long refused to grant adjustment of status for K visa recipients whose good faith marriage ends in divorce prior to the adjudication of the adjustment application, notwithstanding the fact that the government sometimes may take years to adjudicate an adjustment of status application. In this circumstance, divorce may result in the removal of the foreign national from the U.S. upon denial of the case.
This, however, is not true for individuals living in the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon and Washington). According to a court decision reached by the U.S. Court of Appeals in the Ninth Circuit, divorce does not necessarily result in denial of the adjustment of status application and subsequent removal of the foreign national K visa holder if the marriage was bona fide (Choin v. Mukasey). It is gratifying to see that the termination of the good faith marriage through divorce need not result in the removal of the K visa holder when it is the government that causes the initial delay in adjudication. We hope that USCIS eventually decides to apply this ruling across the country.
Click here to read more on Adjusting Status if marriage ends in divorce.
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