Our offices are often asked by perspective clients and by those who have retained our services for advice as to whether or not, as American citizen spouses or fiancées, it is appropriate to file for their intended spouse as a fiancé or, in the alternative, as a married spouse. Depending upon the facts, circumstances and goals of each client, we attempt to advise our clients and those seeking legal advice in order that they might avoid the pitfalls and consequences of seeking the inappropriate nonimmigrant or immigrant visa.
In light of the difficulties associated with providing general information upon which one might then make decisions affecting a spouse or an intended spouse, we offer the following information relating to the fiancé visa which bears the K-1 nonimmigrant classification under the Immigration & Nationality Act. The following information is offered and provided simply to offer a background to the subject area thus giving some direction to those facing this situation. Our offices are, of course, available to discuss this matter further as appropriate.
The K-1 visa remains available for the fiancé (e’s) of American citizens who are entering the United States for the sole purpose of getting married within ninety days of their admission. Minor children of the K-1 visa holder are eligible as derivatives for admission under the K-2 nonimmigrant visa. Those seeking to enter as fiancés must first establish that they have the legal capacity to immediately marry within the requisite ninety day period, that they have physically met the U.S. citizen within two years of filing the petition (generally outside of the United States) and that they are otherwise admissible or eligible for a waiver which would permit them to enter the United States without incident.
A related nonimmigrant visa is a K-3 visa which permits the intended spouse to avoid procedural difficulties of the immigrant visa process in order that he or she might enter the United States while the I-130 visa petition is as yet pending before the United States Citizenship & Immigration Services (USCIS). The K-3 visa is designed for individuals already married to U.S. citizens where the U.S. citizen spouse, as above mentioned, has filed an I-130 immediate relative immigrant petition with the USCIS. The K-3 nonimmigrant classification is therefore considered at the American Consulate having jurisdiction over the residence of the intended spouse immigrant. The form I-129F, a USCIS form, is filed at the very same time as the I-130 visa petition in order to permit the intended U.S. citizen spouse to enter the United States while the I-130 visa petition is as yet pending. This situation was created under the “LIFE ACT”, a piece of legislation passed by the Congress of this country in order to permit the reunification of American citizen spouses with their relatives overseas. This was a product of the lengthy delays associated with the processing of form I-130. The children of a K-3 visa petition are issued K-4 visas. K-3 and K-4 visa holders are admitted for two years. However, extensions are permitted should the I-130 visa petition not be as yet approved. Once the I-130 visa petition is approved by the USCIS and the K-3 spouse remains in the United States, then the parties will file an application for adjustment of status using form I-485 with all supportive materials with the USCIS offices in the United States having jurisdiction over the parties’ residence.
The K-1 visa recipient is not eligible to change his or her status to another nonimmigrant classification in the event that they do not marry within the 90 day period after being admitted to the United States. This is true even though the intended K-1 fiance, having every good faith intent to marry upon his or her entry into the United States, is rejected by the U.S. citizen intended spouse.
As you might assume, this situation often presents itself in our offices. We are in position to offer advice and counsel in this regard in order to alleviate the terrible hardship to those facing this dilemma.