The K visa category is designed for a foreign national who is engaged to U.S. citizen to enter the United States with the purpose of marrying the U.S. citizen.  For this reason, the K visa is commonly known as the fiancé visa, but it can be useful to persons who are already married.  Although technically considered a nonimmigrant visa, it does confer immigration benefits because once the marriage takes place, the beneficiary of a K-1 visa may quickly apply to adjust status as a lawful permanent resident.

How do you qualify for the K-1 visa?  The eligibility requirements for the K-1 visa is straightforward:

• You are a fiancé of a U.S. citizen.
• You and your fiancé are eligible to marry.  That is, you are old enough to get married and have never been married.  Or, if you have been married, you are divorced or your spouse is deceased.  The same rules apply to your U.S. citizen fiancé.   There is no such thing as “almost divorced” or “separated” in immigration law.  USCIS only recognizes two legal conditions:  married or single.   USCIS considers people who are divorced or widowed to be single.  If you are married but have begun divorce proceedings, do not even think about filing a petition for a K visa unless your divorce has been finalized.  USCIS will demand to see evidence that your prior marriage has terminated.
• You are planning to getting married within 90 days of your entering the U.S.  If you want to have a long engagement, don’t apply for a K visa until you are ready to get married.  The requirement that you marry within 90 days of your coming to the U.S. is strict.  You will have a much more difficult time getting lawful permanent residence if you don’t marry within the required 90-day window.
• The only reason of your entering the U.S. is to get married.

What are some of the important things you must keep in mind when applying for a K visa?

• Unlike other nonimmigrant visa categories, you will not be permitted to change your status while in the U.S.  For instance, if upon entering the U.S. you and your fiancé decide not to get married, you must leave the country.  You can’t enroll in a university and change your status to F-1 (student). 
• The K visa category does not relieve you of any bars that may be placed upon you for prior immigration violations.  If you have accrued unlawful presence in the past, you may be subject to time bars for returning to the U.S.  The K visa will not change that legal condition.
• Once issued, the K visa is valid for 180 days.  You must use it to enter the U.S. before the expiration date indicated on your visa.  
• Once you enter the U.S., you must get married within 90 days.  Otherwise, you must leave the country.  There is no mechanism for requesting an extension of K status.      
• The K visa is only for marriages which will take place in the U.S.  If you plan to have a foreign wedding, do not apply for a K-1 visa.  If you are already married and the processing time for your country is extraordinarily long, you may consider the K-3 visa, which allows your spouse and children to come live in the U.S. with you while the sponsorship petition for your spouse is pending.  The K-3 visa offers similar benefits as a K-1 Fiancé visa, but the K-3 is designed for those who are already married.
• The K-1 visa is available to people who are not yet married.  If a marriage has already taken place, your fiancé is not eligible for a K-1 visa.  USCIS takes a broad view of what constitutes a marriage, and does not limit the term only to marriages performed by government ministers.  Traditional cultural or tribal ceremonies may be considered marriages.
• You must show that you and your fiancé met each other in person at least once in the preceding two years.   This requirement may be waived if you can establish that your cultural practices forbid you from meeting your fiancé.
• If you are the sponsoring fiancé, you must agree to be financially responsible for your fiancé.  
• You must establish that your intended marriage to your fiancé is bona fide and not just to obtain immigration benefits.  In my experience (helping clients “fix” deficient K-1 petitions) the most common reason for denial is the couple’s failure to establish that their relationship is genuine.  Both the Department of State (who issues the K visa) and USCIS (who processes the petitions for K visas) view most petitions with suspicion because they believe the vast majority are fraudulent.

Should you bother with the K visa when your fiancé can come to the U.S. on a visitor visa? 

I sometimes get this question from clients whose fiancés already have B (visitor) visas or come from a country that participates in the Visa Waiver Program.  What’s the point of applying for a K visa when the fiancé already has the means to enter the U.S?  I understand why some couples don’t want to go through the time and expense of applying for a K visa when another more convenient option is available.  It is true that your foreign born fiancé may come to the U.S. on a visitor visa or a visa waiver.  It is true that after entering the U.S. as a visitor, you and your fiancé may legally marry (because there is no prohibition against doing so).  It is also true that despite not having entered on a K-1 visa, USCIS may still approve your fiancé for adjustment to lawful permanent residence after you are married.   This situation is not rare.

However, just because something has been done before doesn’t make it smart.  I know a few people who “got away with it” by taking this easy short cut.  I also know a few who didn’t and are now suffering the consequences of their folly.  It is possible in the above example that your fiancé may be found to have committed visa fraud, which may lead to removal and jeopardize his or her chance of being able to live in the U.S.  Almost everyone who enters the U.S. is asked by the customs official to state the nature of his or her visit.  If you fiancé claimed that the nature of the visit is to do sightseeing, but in reality it was to get married to you, your fiancé would be found to have committed visa fraud.  In cases involving marriage, visa fraud would not be hard to establish, especially if you had made elaborate wedding plans.

My advice is to always do the right thing.  Don’t take shortcuts with the visa process.  A person who intends to get married should use the K-1 visa, not anything else.  Circumventing the system will only lead to headaches with USCIS and possibly heartaches if USCIS denies your fiancé the right to live in the U.S. because USCIS believed your fiancé committed visa fraud.  A finding of visa fraud is as serious matter because it will lead to denial of all future immigration benefits.  Why take unnecessary risks with your future?  You do not want to begin your new life together as husband and wife with a cloud of doubt and suspicion over your head.

If you wish to learn more about the different options available to you under the K category, contact me for a consultation.