Filing for A Fiance/Fiancee

David Sturman

If you are a U.S. citizen engaged to a foreign citizen and you are considering marriage, the K-1 visa is likely your best choice for bringing your fiancee to the U.S. to live permanently with you (in fact, it was created exactly for persons in your situation). The K1 Visa allows you to bring your fiancee to America for a period of 90 days, during which time your fiancee must either marry you or return to her home country. No extensions of the time period are permitted. You and your fiancee are not required to marry if things don’t work out according to your expectations. If you do not marry your fiancee, she will not be permitted to lawfully remain in the U.S. or obtain permanent residence or other immigration status while in the U.S. Your fiancee will not be precluded from receiving another visa in the future if she returns to her home country in a timely manner.

Permanent residents of the United States are not eligible to file for a K-1 visa.

Criteria for Approval

In order to qualify for a Fiancee Visa, you must meet the following main requirements:

  • You are a U.S. citizen (by birth or naturalization.)
  • You have personally met your fiancee within the previous two years, (with few exceptions)
  • You and your fiancee are both legally free to marry
  • You and your fiancee both have a serious intention to marry within 90 days of your fiancee’s arrival in America and can prove the validity of your relationship.

Meeting Requirement: Exceptions

There is a provision in the law that may exempt the petitioner from the meeting requirement “if it is established that compliance would result in extreme hardship to the petitioner or that compliance would violate strict and long-established customs of the K-1 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.” INA § 214.2(k)(2). Unfortunately, such waivers are very rarely granted by the USCIS. The “extreme hardship” exception has been interpreted by the USCIS to mean something very close to “impossible”. It generally is available only to people who are so disabled that they can’t fly at all, but even this is not a certainty.. As for the second grounds for a waiver, very few people qualify for this exception, and those that do often have a difficult time proving it to the government’s satisfaction.

U.S. Citizenship and Immigration Services (USCIS) Phase

To begin the Fiancee Visa process, the petitioner must first submit a fiancée petition to the USCIS in the U.S. The petitioner and fiancee will need to file numerous forms and documents with the USCIS in order to prove that the petitioner and fiancee qualify for the K1 Fiancee Visa. The waiting time for the USCIS to approve a K1 visa can be anywhere from two weeks to several months, depending on the backlog of similar cases pending approval in the USCIS Regional Center. Delays are often caused by petitioners being unaware of the requirements and making an error in the petition, which typically doubles the normal waiting time for visa approval. An error in the petition will cause the USCIS to send the petitioner a Request for Additional Evidence (“RFE”), asking for more documents or clarification.

U.S. Embassy / Consulate Phase

Once approval has been received, the case is transferred to the Department of State’s National Visa Center where a background check is begun on the fiancee. The NVC then forwards the case file to the U.S. Embassy or Consulate having jurisdiction over the fiancee’s petition. Once the documents have been received by the Embassy, and the State Department’s background check on the fiancee has been concluded, the fiancee will be instructed to undergo a medical examination at a designated local clinic, and to appear at the U.S. Embassy for presentation of several new forms and numerous supporting documents and to undergo an interview with an Embassy Consular Official. If the paperwork is all correct, and there are no problems in the interview, the visa will be issued on the same day as the interview or, in some embassies, in the week following the interview. The fiancee is then free to travel immediately and directly to the United States. The total processing time can be as little as 90 days.

Possible problems

The K-1 visa is a highly reliable visa if done correctly. Nonetheless, about half of fiancees fail to receive their visa on the day of interview (our firm has a 100% success rate for first day issuance,). Failure to issue the visa on the day of the interview can lead to lengthy and grueling delays, and possible return of the petition to the USCIS for “administrative review” and possible revocation. Some of the more common issues that can lead, alone or in combination with other problems, to a delay or denial if not handled correctly are:

  1. Missing documents
  2. Incorrect paperwork
  3. Insufficient income/savings of the U.S. citizen sponsor or co-sponsor
  4. Very large age difference between the couple that is not explained properly
  5. Couple hasn’t spent enough time together in person or cannot prove legitimacy of relationship
  6. Couple lacks sufficient evidence of recent contact
  7. Fiancee is not prepared for the interview and interviews poorly and the consul doubts that there is a bona fide relationship with the U.S. citizen
  8. Fiancee was previously in the U.S. and overstayed the visa or was deported
  9. Fiancee has a criminal record
  10. Fiancee has a serious, contagious illness (such as AIDS, tuberculosis, etc.)
  11. Fiancee commits fraud or lies during the interview (or so it seems to the interviewing officer)
  12. Petition and supporting documents are not prepared correctly.

Visa Status in the USA

A Fiancee Visa is a temporary visa, but one that can be readily converted to a permanent visa after the marriage occurs in the U.S. Once married, the U.S. citizen can obtain conditional permanent residence status for his/her new spouse by filing an I-485 petition with the U.S. government. Several months later (the length of the wait varies considerably on where you live in the country) the couple is called into the local USCIS office for an interview, and a two year “conditional” permanent residence card is issued shortly thereafter. One year and nine months after the conditional permanent residence card was issued by the USCIS, the couple may apply to remove the condition and receive a 10 year permanent residence card. Three years after the foreign born spouse received her first green card, she is eligible for citizenship.