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FAMILY / MARRIAGE BASED GREEN CARD

K-1 Fiancé/e Visa

Under the Immigration and Nationality Act, a U.S. citizen (USC) who wishes to bring his/her fiancé(e) who is a foreign national to the United States to get married may apply for a K-1 Fiancé(e) Visa petition. Under immigration regulations, a fiancé(e) is a person who is engaged or contracted to be married. The marriage must be legally possible according to laws of the state in the United States where the marriage will take place. In some cases, the USCIS considers a person a "fiancé(e)" even though a marriage contract has been concluded. In such cases, the USC petitioner and his/her spouse have not met, and they have not consummated the marriage.

A permanent resident ("green card" holder) cannot file a K-1 Fiancé(e) visa.

Eligibility Requirements

To file for a K-1 Fiancé(e) Visa petition, the USC must show that:

  • The petitioner is a U.S. citizen.
  • The USC must intend to marry his/her foreign national within 90 days of the fiancé(e) entering the United States.
  • The USC and the foreign national fiancé(e) must be free to marry and any previous marriages must have been legally terminated by divorce, death, or annulment.
  • The USC must have met his/her foreign national Fiancé(e), in person, at least once within 2 years of filing your petition. There are two exceptions to this requirement (that require a waiver):
    • If the requirement to meet would violate strict and long-established customs of the USC's or the fiancé(e)'s foreign culture or social practice.
    • If the USC can prove that the requirement to meet would result in extreme hardship.

Application Process: The USC must file a Form I-129F, Petition for Alien Fiancé(e) for K-1 visa with U.S. Citizenship and Immigration Services (USCIS). After the USCIS approves the petition, it sends the petition to National Visa Center (NVC) for processing, prior to sending it to the embassy or consulate where the foreign nation fiancé(e) will apply for a K-1 nonimmigrant visa.

The consular section at the embassy or consulate where the foreign national fiancé(e) of the USC will apply for a visa, will provide information about any additional specific requirements that the person may need to fulfill to complete his/her visa application. The approved I-129F petition is typically valid for four months from the date of approval from USCIS. Consular officers can extend the validity of the petition (re-validate the petition) if it expires. Once the K-1 Fiancé(e) Visa is issued, the foreign national can come to the United States and must get married within 90 days of admission to the U.S.

It is important to note that K-1 Fiancé(e) status automatically expires after 90 days. It cannot be extended. If the marriage does not take place within 90 days, the foreign national fiancé(e) should leave the United States. If the fiancé(e) does not depart, he or she will be in violation of U.S. immigration law. This may result in removal (deportation) and/or could affect future eligibility for U.S. immigration benefits.

Commonly asked questions:

  • What happens after the foreign national gets the K-1 Fiancé(e) Visa?

    After getting the fiancé(e) visa, the foreign national fiancé(e) enters the U.S. through a U.S immigration port-of-entry. The U.S. immigration official will give the fiancé(e) instructions on what to do when he/she enters the United States. The USC and the foreign national fiancé(e) must get married within 90 days of fiancé(e)'s entry into the United States. After marriage, the USC spouse must file the I-130 petition for alien relative and the foreign national spouse can file his/her Form I-485 Application to to Adjust Status with USCIS. Once the I-485, application has been filed, the foreign national can remain in the United States while USCIS processes the application.

  • Can a K-1 Visa holder leave the United States?

    The K-1 visa allows a fiancé(e) to enter the United States one time only. If the person leaves the United States after entering on a K-1 fiancé(e)visa, s/he may not re-enter on the same visa.

  • Can a K-1 Visa holder work in the United States?

    Upon arrival into the United States, a K-1 visa holder may file Form I-765 Application for Employment Authorization with the USCIS office for a work permit (employment authorization document).

  • Do the children of the foreign national fiancé(e) have derivative status

    If the foreign national fiancé(e) has a child (under 21 and unmarried), a K-2 nonimmigrant visa may be available for the minor child. The USC must include the names of the fiancé(e)'s children at the time of filing the Form I-129F petition. The child of a fiancé(e) may receive a derivative K-2 visa from his/her parent's fiancé(e) petition. The USC petitioner, must make sure to name the child in the I-129F fiancé(e) visa petition. After the marriage of the child's parent and the USC, the child will need to file a separate form I-485 Application to to Adjust Status. The child may travel with (accompany) the K-1 parent/fiancé(e) or travel later (follow-to-join) within one year from the date of issuance of the K-1 visa to his/her parent.

  • How long does the K-1 visa process take?

    USCIS currently takes 90-120 days to process the I-129F Fiancé(e) Visa petition. It may take an additional 3 to 4 months for additional processing by U.S. consulate to issue the K-1 visa. The actual length of time varies according to the facts and circumstances in each case. The time it takes each USCIS service center and each consulate to process the case varies. Some visa applications from certain countries require further administrative processing, which may take additional time after the visa applicant's interview by a Consular Officer. Some cases are delayed because the applicant does not follow instructions carefully or supplies incomplete information.

  • What if the applicant is ineligible for a visa?

    Because a fiancé(e) visa permits the holder to immigrate to the U.S. and marry USC shortly after arrival in the United States, the fiancé(e) must meet some of the requirements of an immigrant visa. The foreign national may be found to be ineligible for a visa due to certain conditions and activities such as:

    • Trafficking in Drugs
    • Having HIV/AIDS
    • Overstaying a previous visa
    • Practicing polygamy
    • Advocating the overthrow of the government
    • Submitting fraudulent documents

    The consular officer will tell the visa applicant, if s/he is ineligible for a visa, whether there is a waiver of the ineligibility and what is the procedure for applying for a waiver procedure.

Green Card based on Marriage to USC/LPR

MARRIAGE BASED PERMANENT RESIDENCE ("GREEN CARD") PROCESS

A U.S. citizen (USC) or a legal permanent resident (LPR) may sponsor his/her foreign national spouse (husband or wife) to live in the United States as a permanent resident ("green card" holder).

Spouse of a U.S. citizen:

A U.S. citizen can bring his or her spouse to the U.S. by filing an Immigrant Visa Petition for Alien Relative (Form I-130) on behalf of the foreign national spouse (see below); or by filing a K-3 Nonimmigrant K-3 Visa for the foreign national spouse. The husband or wife of a USC is considered an "immediate relative" for the purpose of seeking U.S. immigration. There are no quota restrictions or annual limits on the number of persons who can obtain "green cards" (either through adjustment of status or consular processing) under this category.

The following is the process to apply for permanent residence for the spouse of a USC:

  • The USC must file a Form I-130 immigrant visa petition on behalf of his/her spouse.
  • If the foreign national spouse is legally inside the U.S., s/he may be eligible to file a Form I-485 Application for Adjustment of Status to that of a lawful permanent resident concurrently, i.e. at the same time the USC files the I-130 petition.
  • If the foreign national spouse is outside the United States when the I-130 visa petition is approved, the approved I-130 petition will be sent to the National Visa Center (NVC) for further processing.
  • The NVC will notify the U.S. consulate where the foreign national spouse will be scheduled for an interview and complete the processing for an immigrant visa.

"Bona fide" marriage: When a foreign national applies for immigration through marriage to a U.S. citizen, the case is subject to strict scrutiny by USCIS. The marriage between the USC and the foreign national must be legal and valid marriage and the marriage must be recognized by the law of the state or the country where it takes place. The burden of proof is on the USC and his/her foreign national spouse to show that the marriage was entered into in "good faith" and is a bona fide and real marriage; and that the marriage is not a "sham marriage" entered into for purpose of seeking immigration benefits. This is a very critical issue in the marriage based "green card" process. The USC and the foreign national must submit documentary evidence to prove that they are living as husband and wife.

Spouse of a Legal Permanent Resident:

There is a three-step process for the foreign national spouse of a "green card" holder to immigrate to the United States:

  • The LPR must file a Form I-130 petition on behalf of the foreign national spouse and USCIS must approve the I-130 immigrant visa petition.
  • The Department of State visa bulletin must show that an immigrant visa number is available to the foreign national spouse (based on the date the LPR filed the I-130 immigrant visa petition).
  • If the foreign national is outside the United States when the I-130 petition is approved, s/he will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa. If the foreign national spouse is legally inside the U.S. when the I-130 visa petition is approved and when an immigrant visa number (if required) becomes available, s/he may file Form I-485 Application for Adjustment of Status to adjust his or her status to that of a lawful permanent resident.

There is an annual limit on the number of immigrant visas available to spouses of LPRs, therefore the foreign national spouse must wait for some time (after the LPR files Form I-130) before an immigrant visa becomes available. The current wait time is approximately four to five years in this preference category. If the LPR becomes a USC while the case is pending, the foreign national spouse will then be considered an "immediate relative of USC" and will be eligible for an immigrant visa immediately.

Conditional Legal Permanent Resident Status

If the USC and the foreign national have been married less than two years when the foreign national spouse is granted permanent resident status, s/he will receive a legal resident status ("green card") on a conditional basis, typically for two years. To remove the conditions on residence, the USC and the foreign national spouse must jointly file a Form I-751, Petition to Remove the Conditions of Residence. This petition to remove conditional legal permanent resident status must be filed within the 90-day period before the expiration date on the conditional resident card (I-551 Alien Registration Card). If the USC and the spouse fail to file during this 90 day window, the foreign national spouse's resident status will be terminated and s/he may be subject to removal from the United States.

For more information, please contact us at 215-368-8600 or ak@akaimmigration.com

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