To K or not to K: A Good Question

By: Neena Bohra, Esq.

Have you ever contemplated marriage to someone from another country but were unsure about the process of applying for that special person to enter the U.S. and also be able to study, work and/or travel outside the U.S.? This article addresses some common questions about the K visa, a viable option for U.S. citizens who are serious about engaging in marriage after entry into the U.S. and desire results in a timely manner.

The K visa, or Fiancé (e) visa, as it is more commonly known, is a nonimmigrant visa option that is not as heavily utilized as other visas, but is laden with tremendous benefits for the petitioner and the beneficiary. The timeline for a K fiancé (e)visa is expeditious compared to an alien relative petition for a spouse. The requirements for filing the first step of this process with the Immigration and Naturalization Service (INS) focus on establishing eligibility of the petitioner, and proving that the petitioner and beneficiary have met within the last two years. There must be proof of a bona fide intention to marry and the parties must legally be able to marry. Matter of Manjoukis, 13 I&N Dec. 705 (DD 1971) [Fourteen year old women cannot legally marry]; Matter of Souza, 14 I&N Dec. 1 (R.C. 1972) [Existing prior marriage. Where divorce filed although likely to be finalized within 90 days, was not yet finalized].

Only U.S. citizens are eligible to apply for fiancées. A copy of a birth certificate or naturalization certificate is ample documentation. In addition, biographic information is needed for both parties including five years of past home addresses and work history. Depending on the jurisdiction in which the petitioner resides, the petition for a fiancé (e) is filed at a regional INS office in Vermont, Nebraska, California or Texas. This type of petition cannot be filed a consulate overseas and cannot be filed for a beneficiary already in the United States. The processing times differ at each regional service center depending on current workload, staffing issues and other factors.

Once a petition is approved, INS generates an approval notice and the file is sent to the National Visa Center (NVC), which forwards the petition to the consulate, previously designated in the petition. This overseas consulate is responsible for issuing the K-1 visa. The consular officers abroad have much discretion, as a matter of law, to determine whether to issue a visa even after the INS has approved a petition. Candidates must be ready, able and willing to answer any related questions about status and eligibility.

Various factors for candidates to consider include the fact that the fiancé/e must enter the U.S. solely for the purpose of marriage to the petitioner and the marriage must occur within 90 days from entry into the U.S. A K visa holder cannot change status or apply for adjustment of status on any other grounds beside marriage.

Other potential benefits are:

1. Additional filings are not necessary for children and the visas are generally issued in a timely fashion. Children (under 21) of the fiancé/e may accompany on a K-2 visa. K-1 and K-2 holders can obtain authorization to work under that visa status.

2. Once the marriage has taken place in the U.S. and a marriage certificate issued, the K visa holders apply to adjust to residency status. This interview for adjustment of status based on a K visa generally takes place on the same day as the filing at a local INS office. This saves much waiting time. Currently, an I-485 application based on marriage in New York takes 578 days from the date of filing.

3. A K visa holder initially obtains a two-year conditional residency status, not legal permanent residency status. On the second anniversary from the date the beneficiary becomes a conditional resident, she/he must file additional documentation to establish the existing bona fide nature of the marriage. A package with supporting documentation is filed to prove that above so INS can "lift" the conditional elements of this status. If the couple has been living together as a bona fide couple and has requisite evidence to prove that they are currently living together and married in good faith, this requirement is usually not difficult to fulfill.

4. K-1s and K-2s are authorized to work in the U.S. (8 CFR Sec. 274a.12(a)(6)) and must apply for separate work authorization using Form I-765 at an INS office. This option is for those who wish to work before marriage and applying for adjustment of status.

5. Once a petition is approved, it is valid for four months. It can be revalidated for four-month intervals but law does not allow extensions of stay for the K visa holder. The petition is automatically terminated upon death of the petitioner or if the petitioner withdraws the petition.

In summary, the advantages are: quick turnaround times for processing and entry into the U.S. as well as a cursory interview at the I-485 stage and same day interviews. This is because the "checks and balances" have already occurred at the consular processing stage abroad.

This option is not a viable one for those not serious about marriage and not willing to wait until the beneficiary enters the U.S. Remember that the beneficiary must marry within 90 days of entry; the visa will not be valid after 90 days after entry and an adjustment of status case must be filed in a timely manner.

If you have additional questions about the K visa or any other immigration matters, please contact our offices at your convenience.

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This article was authored by Neena Bohra, Esq.. The above information is general in nature and not meant as substitution for specific case advice. Please contact an attorney regarding your particular case based on the above generalities. For a limited time, we are offering free initial consultations . Phone: 212-279-0424. Email address: neena@neenalaw.com. Reprinted with permission of Neena Bohra.