K-1 Fiancé(e) Visa Guide

fiances eiffelThis article covers the requirements and procedures to apply for a K-1 visa, as well as the terms and conditions of K-1 status. Also covered are the rules for the fiancé(e)’s unmarried children under age 21 to apply for K-2 visas.




Contents

Introduction

Congress created the K-1 fiancé(e) visa in 1970 out of recognition that the existing visa options for couples were insufficient. One option was for the U.S. citizen to go abroad to marry, after which the foreign spouse could apply for an immigrant visa on the basis of the marriage. Another option was for the foreign fiancé(e) to obtain a B-2 (visitor for pleasure) visa to come to the U.S. to marry, but an important limitation is that B2 visas are only available if the foreign fiancé(e) does not intend to immigrate to the U.S.[1] In creating the K-1 visa option, Congress sought to create a method for a foreign fiancé(e) to enter the U.S for purposes of marriage and immigration.[2]

Effective July 1, 2013, USCIS has directed its staff to review immigration visa petitions filed on behalf of a same sex fiancé(e) or spouse in the same manner as those filed on behalf of opposite-sex spouses.[3] The law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes.[4]

This article covers the requirements and procedures to apply for a K-1 visa, as well as the terms and conditions of K-1 status. Also covered are the rules for the fiancé(e)’s unmarried children under age 21 to apply for K-2 visas.

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Source: Department of Homeland Security, Office of Immigration Statistics

A word of caution: family-based immigration is a lengthy, sometimes complex, and ever-changing process. Some people are ineligible to immigrate, and others can only immigrate by qualifying for a special “waiver” of ineligibility grounds. It’s common for immigration cases to be delayed and the couple kept apart if specific procedures are not carefully followed at each step along the way, or if incomplete information or documentation is submitted. I would encourage every couple to at least consult with a qualified and experienced immigration lawyer to find out if there are any hidden pitfalls in their case. Love and marriage are too important to leave the immigration process to chance.

Application Steps and Processing Time

This article covers each stage of the application process. For each step, the average processing time is shown.

  • Step 1: The U.S. citizen files a Form I-129F, Petition for Alien Fiancée (i.e., K-1 petition) with U.S. Citizenship and Immigration Services (USCIS). (5 months processing time at all Service Centers).
  • Step 2: USCIS forwards the approved petition to the State Department’s National Visa Center (NVC) for clerical processing. (2-4 weeks).
  • Step 3: The fiancé(e) applies for a K-1 visa (and any children apply for K-2 visas) at a U.S. Consulate abroad. (2-4 months).
  • Step 4: The fiancé(e) and any children apply for admission to a U.S. Customs and Border Protection (CPB) inspector at a port of entry. Upon admission, the fiancé(e) has K-1 status and the children have K-2 status.
  • Step 5: To qualify for conditional resident status, within 90 days of when the fiancé(e) enters in K-1 status, the couple must marry
  • Step 6: Then the foreign spouse and each K-2 child must file with USCIS a Form I-485, Application to Adjust Status. (7-9 months).

Related Topics

Other related topics not covered in this article include:

  • Choosing the Best Visa Strategy for a Fiancée or Spouse: K-1, K-3, or Immigrant Visa?
  • Proving Nonimmigrant Intent for a U.S. Visa: see especially Part III. A fiancé(e) is technically ineligible to enter the U.S. on a B1/B2 visitor’s visa if she intends to reside permanently in the U.S.
  • Guide to Form I-485, Application to Adjust Status (available upon request)
  • Rights and Obligations of Lawful Permanent Residents: among other things, this article explains how approval of the Form I-485, Application to Adjust Status, results in conditional resident status. That status is valid for two years. Within the 90-day window before that status expires, a Form I-751, Petition to Remove the Conditions on Residence, may be filed with USCIS to request permanent resident status.

Step 1: The K-1 Petition

1.1 Overview of the Requirements

The requirements for a U.S. citizen to file a K-1 petition are as follows:

  1. The petitioner must be a U.S. citizen.
  2. The citizen and foreign fiancé(e) must be free to marry. This means that both of you are unmarried or that any previous marriages have ended through divorce, annulment, or death. And there must be no legal impediments to marriage.[5]
  3. The couple must have met at least one time in person within the two-year period prior to filing the K-1 petition.[6] This can be proven through affidavits, trip itineraries, plane ticket stubs, letter, photographs, or other evidence, as explained below. This requirement can be waived only if meeting would violate long-established customs (e.g., marriages in the fiancé(e)’s country are traditionally arranged by the parents and the prospective bride and groom are forbidden from meeting until the wedding day), or if meeting would create “extreme hardship” for the petitioner. The USCIS Administrative Appeals Office has held that “lack of finances” or inability to take time off work does not constitute extreme hardship. Medical and security conditions form the most prevalent bases for hardship waivers granted by USCIS.[7]
  4. The foreign fiancé(e) must “seek[ ] to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission.”[8] In addition, the petitioner must “have a bona fide intention to marry, and … [be] willing to conclude a valid marriage” within the 90 days.[9] These requirements are discussed further below.
  5. If the citizen has been arrested or convicted of certain crimes, you must include police and court records with the K-1 petition.[10] Related information will be disclosed by the consular officer to the foreign fiancé(e) during the K-1 interview.[11]
  6. If the citizen has been arrested for a “specified offense against a minor,”[12] USCIS will schedule the petitioner for fingerprinting to conduct a criminal background check.[13] If USCIS determines that the petitioner has been convicted of a “specified offense against a minor,” a Form I-129F or Form I-130 will be denied except that USCIS may grant an exception if it determines in its sole and unreviewable discretion that the petitioner does not pose a risk of harm to the beneficiary.[14]
  7. IMBRA limitations and waivers:
  • The citizen must not have exceeded the limitations on the number of K-1 petitions filed. The limit is two or more K-1 visa petitions filed at any time in the past or any K-1 petition approved within two years prior to the filing of the current petition.
  • Even if the citizen has exceeded that limitation, USCIS in its discretion may grant the citizen a waiver of the limitation as a matter of discretion.
  • But no waiver will be given to a petitioner with a history of violent offenses unless extraordinary circumstances exist or unless the petitioner has been battered or subjected to extreme cruelty.[15]
  • In addition, once a petitioner has had two fiancé(e) or spousal petitions approved, if a subsequent petition is filed fewer than 10 years after the date the first petition was filed, USCIS will notify both the petitioner and the beneficiary of any subsequent petition about the number of previously approved petitions.[16]

1.2 Intent to Enter into a Valid Marriage

Here’s a more detailed explanation of the requirement that the couple must have a good faith intention to marry within 90 days of the foreign fiancé(e)’s admission to the U.S.[17]

A good faith intention to marry means that the parties intend to establish a life together.[18] The level of intent that must be show is firm “commitment.”[19] And this “life together” most typically involves living in the same home, commingling finances, having sex, and having children, although no single factor is required. For example, the couple may need to live apart for a period because of work or may not intend to have children.[20]

In contrast, marriages of convenience,[21] paper marriages, marriages that occur only because the green card is the sole objective are illegal. U.S. government policy is to root out phony marriages, to prosecute the both parties criminally,[22] and to deport the foreign fiancé(e) or spouse. According to USCIS, some factors that raise “red flags” perhaps (but not necessarily) indicating a sham marriage include[23]:

  • Large disparity of age;
  • Inability of petitioner and beneficiary to speak each other’s language;
  • Vast difference in cultural and ethnic background;
  • Family and/or friends unaware of the marriage;
  • Marriage arranged by a third party;
  • Engagement after a very brief courtship
  • Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States;
  • Discrepancies in statements on questions for which both parties should have common knowledge;
  • Petitioner resides with family members of the beneficiary in the U.S.;
  • Beneficiary is a friend of the petitioner’s family; and
  • Petitioner has filed previous immigration petitions, especially K-1 or spousal petitions.

It’s important to address such red flags in the K-1 petition because if the consular officer later becomes aware of red flags not considered by USCIS in the petition, the consular officer may return the petition to USCIS with a recommendation that the petition be revoked.

The U.S. government will assess the intent of the parties by reviewing their conduct. For example, do they appear to know each other well enough to form an intent to establish a life together? Does the petitioner know the fiancé(e)’s family, and vice-versa? Have the parties taken other actions showing a commitment to make a “life together.”

The couple will be required to submit documentary evidence of the validity of their intent to marry. This may include, for example:

  • Photos of the couple together and with their extended families and friends over a period of time of their relationship, showing that they know each other well.
  • Evidence of plans for the wedding.
  • Evidence of gifts the couple has given to each other and to their respective families.
  • Letters or emails between the couple showing that they have a real relationship, that they plan to marry, and that they plan to establish a relationship together.
  • Affidavits from the couple’s relatives explaining that they have seen the couple’s relationship evolve and are aware of the couple’s intent to marry and to have a life together.

The couple may also be interviewed regarding the validity of their intent to marry. Inconsistency in statements made by the couple may be the basis for denial.[24]

The couple bears the burden of proof. This means that it’s not enough to just say you intend to marry. You need to submit evidence that is sufficient to persuade the officer that you intend to establish a life together.

Note that there is no requirement that the relationship be perfect. The U.S. government can’t refuse to issue a visa merely because they believe the marriage may not succeed. The only requirement is that the couple has the good faith intent to marry. In fact, providing evidence of issues or difficulties in the relationship can be helpful to prove that it’s real. For example, the couple can provide evidence that they initially had different opinions regarding whether to have children or how to manage money but that they have taken steps to resolve the issues, such as compromising or discussing the issue or seeking pre-marital counseling with a therapist or social worker.

1.3 Procedures

USCIS Jurisdiction

The petition should be filed with the USCIS Dallas Lockbox facility. From there, it will be forwarded to either the California, Texas, or Vermont Service Center for adjudication. The petition cannot be adjudicated at a USCIS office abroad.

Documents to Be Submitted

The petition packet should include the following documents:

  1. Filing fee of 340 USD payable to “Department of Homeland Security”
  2. Forms G-28, Notices of Entry of Appearance as Attorney, on behalf of each fiancé(e)
  3. Form G-1145, Notification of Acceptance of Application/Petition (to be notified by email and/or SMS of USCIS acceptance of the petition)
  4. Form I-129F, Petition for Alien Fiancée
  5. Forms G-325A, Biographic Data (one for the citizen and one for the foreign fiancé(e))
  6. One passport-style photo of each fiancé(e) taken within 30 days of filing
  7. Evidence of the petitioner’s U.S. citizenship—copies of your U.S. birth certificate, your valid, unexpired U.S. passport, your Certificate of Naturalization, and/or your Certificate of Citizenship
  8. Documentation establishing that all prior marriages of the petitioner and beneficiary, if any, have been legally terminated (e.g., any divorce decrees, death certificates, or annulment decrees)
  1. For same-sex couples, prior to nationwide recognition of same-sex marriage, the petitioner’s statement had to detail plans to marry in a jurisdiction that had marriage equality. In addition, the evidence of wedding planning had to show that the marriage would take place in a marriage equality state.[25] This is no longer required.
  2. If either of you is of an age that requires special consent or permission for you to marry in the jurisdiction in which your marriage will occur, give proof of that consent or permission.
  3. If either you or your fiancé(e) is using a name other than that shown on the relevant documents, you should provide copies of the legal documents that made the change, such as a marriage certificate, adoption decree or court order.
  4. Petitioners convicted of offenses specified above must submit related police and court records, even if the records were sealed or expunged.
  5. Petitioners requiring an IMBRA waiver should submit related documentation.
  6. Evidence that you have met your fiancé(e) in the last two years (unless a waiver applies),[26] have a valid relationship, and have a mutual intent to marry within 90 days of the fiancé(e)’s admission in K-1 status. This may include, for example:
  • Declarations from each of you[27] (and in difficult cases, from third parties such as your families)
  • Photographs of the two of you together. If your camera will put a date on the pictures, all the better. (Photos of each of you with the other’s parents are especially helpful).
  • Airplane tickets and boarding passes showing you have traveled to meet each other or traveled together.
  • Copies of letters, emails, phone bills, etc. to each other.
  • Evidence of wedding planning, such as reservations for a hall, caterer/florist/wedding hall reservations and receipts for deposits placed, wedding invitations, letter from the clergy that will preside over the ceremony, honeymoon flight or hotel reservations.
  • Receipt for engagement ring or wedding bands.
  • Copies of your passports showing stamps that validate your travel to see each other.

The fiancé(e)’s children are listed in the Form I-129F. Separate petitions are not necessary for them.[28]

Photocopies of supporting evidence are submitted, although USCIS has the power to subsequently request that originals be submitted for review. Certified English translations need to be filed of documents in foreign languages.

Procedures if You Met Through an International Marriage Broker

The petition asks whether you have met through an “international marriage broker” (IMB). Meeting this way does not affect eligibility for a K-1 visa. However, the form asks this question to help the government regulate the IMB industry. If you have met through an IMB, a consular officer is supposed to obtain the IMB’s identity and confirm that the IMB is in compliance with laws requiring the IMB to disclose certain information about the citizen to the fiancé(e).[29] That information includes the results of a search in the sex offender registry, information about civil protection orders or restraining orders issued against the citizen, certain arrest and conviction records, information about marital history, information about the citizen’s children, and information about the citizen’s residences since age 18.[30]

Not every dating service is an IMB. Specifically, an IMB is a company or individual that charges fees for providing dating, matrimonial, or matchmaking services, or social referrals between citizens and foreign nationals.[31]There are two important exceptions to the definition of an IMB. The term doesn’t include:

(i) a traditional matchmaking organization of a cultural or religious nature that operates on a nonprofit basis and otherwise operates in compliance with the laws of the countries in which it operates, including the laws of the United States; or

(ii) an entity that provides dating services if its principal business is not to provide international dating services between United States citizens or United States residents and foreign nationals and it charges comparable rates and offers comparable services to all individuals it serves regardless of the individual’s gender or country of citizenship.[32]

Many online dating services fall within the second exception.

Adjudication

USCIS will issue a receipt notice upon receiving the petition and subsequently a written decision in the matter. That decision will be either a written approval notice, a request for additional evidence, a notice of intent to deny allowing submission of rebuttal evidence, or a denial notice. A denial can be appealed to the USCIS Administrative Appeals office.[33] In certain instances, a motion to reconsider or reopen can also be filed following a denial.

Petition Validity

An approved K-1 petition is valid for a period of 4 months, but “may” be revalidated by a USCIS or a consular officer thereafter any number of times for another 4-month period if the officer finds that the parties are free to marry and intend to marry within 90 days after the fiancé(e)’s entry into the United States.[34] However, repeated revalidations may provoke concern about the intentions of the parties.[35] In sum, there is a risk that an officer who is not convinced of the validity of the marriage may effectively deny the K-1 visa application simply by allowing the petition to expire and refusing as a matter of discretion to revalidate it.

Step 2: National Visa Center Processing

In 2003, USCIS began sending all approved I-129Fs to the National Visa Center (NVC) in Portsmouth, New Hampshire. Once there, the NVC will create a case record with the petition information. NVC does part of the security check previously done by the Consulate. In particular, the NVC does a National Criminal Information Center name check on each applicant.[36]

Then the case is forwarded to the appropriate U.S. Consulate abroad.

In 2009, USCIS begin forwarding K-1 cases to Consulates electronically. This eliminated a problem associated with mailing petitions to the U.S. Consulate in Guangzhou, in which cases were delayed for up to several months by China Customs.

The U.S. citizen should receive notification by mail when NVC has sent the petition to the U.S. consulate.[37] The notification letter will provide a unique number for the case. If more than 4 weeks pass since the U.S. citizen has received the USCIS approval notice but the NVC notification has still not been received, our law firm can contact the NVC to follow up.

Step 3: Consular Processing

3.1 K-1 as a Hybrid Visa

The K-1 has been called a “hybrid” visa because it is a nonimmigrant visa (allowing admission for only 90 days) but it is intended to facilitate immigration.[38]

According to a State Department rule, “The consular officer, insofar as is practicable, must determine the eligibility of an alien to receive a [K-1 visa] as if the alien were an applicant for an immigrant visa” except that the vaccination requirement doesn’t apply.[39]

As a result, the two-year foreign residence requirement applies to prior J-1 exchange visitors even though the statute does not explicitly mention applicability to K-1s.[40] Also, the grounds of inadmissibility for polygamy[41] and totalitarian party membership[42] apply even though they are not applicable to other nonimmigrants.

Procedurally, unlike most nonimmigrants, a K-1 visa applicant is required to undergo a medical exam, wait for a National Crime Information Center (NCIC) name check, and present a police certificate.[43]

3.2 Requirements for the K-1 Fiancee

To qualify for a K-1 visa, the fiancé(e) must meet the following requirements.[44]

1. Same Requirements as K-1 Petition: At the consular processing stage, the same requirements from the K-1 stage must still be met. Pay particular attention to the requirement that you prove to the consular officer that you intend to enter into a real marriage, making a life together, within 90 days of admission to the U.S. Some visa applicants are unprepared to prove they meet this requirement leading to refusal of the visa. Consular officers often justify their refusals with the following types of logic:

  • It does not appear that the claimed relationship is continuous and on-going since the couple has met just one time.
  • The foreign fiancé(e) is unaware of basic facts regarding the citizen’s occupation or his employer’s name.
  • The foreign fiancé(e) is unaware of basic facts regarding the citizen’s educational level or the name of the college he attended.
  • The foreign fiancé(e) is unable to provide basic facts about the planned wedding, such as the place of the ceremony, the manner of celebration, who will be invited, or how much the wedding will cost.
  • The foreign fiancé(e) is not familiar with the requirement to marry within 90 days of admission to the U.S.
  • The citizen is unaware that the foreign fiancé(e) has children (i.e., those children weren’t listed in the K-1 petition) or that the children have serious physical or mental health problems.[45]
  • If the petition did not disclose that the foreign fiancé(e) was pregnant, the consul is authorized to proceed with action on the visa application only if the consul receives, in writing or telegram, an acknowledgement from the citizen that the citizen was aware of the pregnancy and wishes to proceed with the marriage.[46]
  • When more than one citizen has an approved petition for the same foreign fiancé(e), the consul must suspend action and return all petitions with a covering memorandum to USCIS for further review.

To avoid refusals on this basis, our firm works closely with the couple to prepare for the interview.

2. Inadmissibility: One set of issues that consular officers focus on, but which the USCIS does not review at the K-1 petition stage, is whether the applicant is subject to the grounds of inadmissibility. To be issued a visa and admitted to the U.S. at a port of entry, a foreign national must be “admissible.” Detailed grounds of inadmissibility exist related to:

  • Medical-related grounds.
  • Crime-related grounds.
  • Security-related grounds, including certain members of the Communist Party.
  • Public charge grounds.
  • Labor certification and requirements for physicians and health-care workers.
  • Illegal immigrants and immigration law violators.
  • Documentary requirements.
  • Draft evaders.
  • Persons previously removed or unlawfully present in the U.S.
  • Miscellaneous grounds.
  • Prior J-1 exchange visitors subject to the two-year foreign residence requirement.[47]

At the beginning of the representation our firm will help the fiancé(e) determine whether any of the grounds of inadmissibility apply and whether any waiver of inadmissibility is available.[48]

3. Automatic termination: The K-1 visa will not be approved—and the underlying visa petition will be automatically terminated–if the U.S. citizen dies or files a written withdrawal of the petition before the fiancé(e) arrives in the United States.[49]

3.3 Requirements for the K-2 Child

To qualify for a K-2 visa, the applicant must meet the definition of a “child”.

In addition[50]:

  • The grounds of inadmissibility must not apply.
  • The approval of the petition must not have been terminated.
  • The child must be accompanying or following to join the K-1 fiancé(e).

3.4 Procedures Before the Visa Appointment

Place of Application

As with other nonimmigrant visa applications, the default place where the K-1 visa application should be filed is with the U.S. Embassy or Consulate having jurisdiction over the applicant’s place of residence.[51] In the alternative, a post may as a matter of discretion accept an application from an individual who is physically present but not resident within its jurisdiction.[52] And in certain situations, an applicant who has previously remained in the U.S. beyond the period of authorized nonimmigrant stay may be required to apply in his or her country of nationality.[53]

The Form I-129F asks the petitioner to identify the U.S. Embassy or Consulate where the fiancé(e) would like to apply for the visa.[54]

Notice to K-1 Visa Applicants (Packet 3)

The first contact from the Consulate will be that the Consulate will mail to the foreign fiancé(e) a Notice to K-1 Visa Applicants (Packet 3) in Chinese and English. This packet provides instructions for completing online the Form DS-160, Nonimmigrant Visa Application.

The packet requests that the K-1 and K-2 applicants mail to the Consulate the following materials once all documents have been collected for the visa appointment:

  • DS-160 confirmation page
  • Passport ID page (photocopy)
  • Two passport-style photos

Upon receipt of the Packet 3, the Consulate will complete additional security checks (“clearance procedures”) through databases that use biographic information (e.g., name, date of birth) and biometric information (e.g., facial recognition) as identifiers.[55]

Packet 4 / Scheduling the Appointment / Visa Application Fee

The Consulate will then send the Packet 4 to the foreign fiancé(e) by email in Chinese and English. The Packet 4 contains information about scheduling the interview online at www.ustraveldocs.com. Prerequisites include paying the visa application fee and choosing a location for the Consulate to deliver the visaed passport to after the interview. The Packet 4 also includes a link to the K Visa Instructions, with a generic list of documents to bring to the interview, and medical examination instructions.

Visa Application Fee: Each K applicant must pay a non-refundable, non-transferable Machine Readable Visa (MRV) application fee of USD 265 (or RMB equivalent) at any branch of CITIC Bank.[56]

Scheduling the Appointment: Appointments are usually available within 2-4 weeks. It’s also possible to reschedule the appointment if necessary.

Choosing a Passport Return Location

Once your visa is approved, the U.S. Consulate will return your visaed passport to you at your chosen location. The passport is usually returned about 1 week after the Consulate approves your application. You have a number of passport return options to choose from:

1. Premium delivery option: This option allows you to choose delivery to your chosen home or office address in Mainland China. To choose premium delivery, you have to provide a valid address. The cost of the delivery is RMB 24 or RMB 34 per passport and is collected on delivery. When collect your passport from the courier, you must present an original government-issued photo ID.

2. Pick up the passport yourself at a local CITIC Bank branch: Our firm will give you a list of local CITIC Bank branches. You can choose which one you want to go to in order to pick up your passport. You will be informed when the passport is ready for pickup. To pick up your passport, you will need your national ID or other government-issued photo ID. We recommend you also bring a copy of your visa appointment letter. CITIC will hold your passport for only 15 days, after which it will be returned to the Consulate, so be sure to pick up your passport timely.[57]

3. Pick up the passport yourself at a central CITIC Bank location: CITIC Bank has central locations in several cities where passports are received from the Consulate and then distributed to local Bank branches. For fastest pickup time, you can choose to go personally to one of these central locations. This may be 1-2 work days faster than pickup at your local Bank branch.[58]

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4. Designate a third party to pick up your passport for you: You can sign a letter of authority to designate another person to receive your passport through any of the above methods. For example, a friend, family member, or a member of our law firm staff can do this. The third party must present additional documents.

  • Their own original government-issued photo ID for identification;
  • A photocopy of your government-issued photo ID; and,
  • A letter of authority, signed by you, authorizing the third party to collect your passport.[59] The letter of authority must contain the following information:
    • Your representative’s full name as shown on their government-issued photo ID
    • Your name
    • Note: In case of a group/family, a single letter of authority with the required information for each of the applicants will be accepted.

You may change your preferred document delivery address until midnight on the day of your interview appointment.

Medical Exam

The appointment letter will also provide instructions for each K applicant to undergo a medical examination at a consulate-approved medical center prior to the immigrant visa interview. Currently in China, there are approved medical centers in Beijing, Fuzhou, Guangzhou, and Shanghai.[60]

The purpose of the medical examination is to ensure that the applicant doesn’t fall within the health grounds of inadmissibility, including (1) having a communicable disease of public health significance (chancroid, gonorrhea, granuloma inguinale, infectious leprosy, HIV infection; lymphogranulomavenereum, infectious-stage syphilis, and active TB); (2) having a physical or mental disorder and behavior associated with the disorder that has posed, or may pose, a threat to the property, safety, or welfare of yourself or others; and (3) having been a drug abuser or addict.

The medical examination includes a medical history, a physical examination, a mental examination, a chest X-ray for tuberculosis (followed by further tests if the results may be abnormal), and blood tests for syphilis and HIV. Some exceptions are made for applicants under 15 years of age.

Our firm will provide you with detailed instructions for the medical examination.

After the medical exam has been completed and test results have been returned, the medical center will put the exam into a sealed envelope for you to bring to the interview.

Of course, the applicant should be sure to tell our law firm about any potential issues, such as prior hospitalization at a mental health institution, prior use of illegal drugs, alcoholism, or even a single arrest for driving under the influence of alcohol.

3.5 Immigrant Visa Appointment

Documents to Bring

The documents which each K-1 or K-2 visa applicant should bring to the interview include[61]:

1. Form DS-160 confirmation page[62]

2. Passport

. Limited Validity: The Consulate tells applicants a good rule of thumb: the passport valid for at least “8 months beyond the visa issuance date.” Here’s why: (a)

K-1 visas are typically valid for 6 months[63]; and (b)

by law, the passport must be valid for 60 days beyond immigrant visa’s expiration, except that for immediate relatives applying in their country of nationality the passport and visa may expire on the same date.[64]

So, if the passport isn’t valid for at least 8 months (with the exception stated above), then the visa will be limited so that it expires 60 days before the passport.[65]

3. Birth certificate (notarized by a local notary public office, if born in PRC)

4. Police certificates: For each applicant age 16 or above, police certificates from (1) the country of nationality (or, if unlike China, a single certificate doesn’t cover the entire country, separate certificates for each place of residence after turning 16); (2) current residence; (3) other countries where the applicant has resided for at least one year; and (4) any place where ever arrested.

Limited Validity: Police certificates are valid for just one year if from a country visited or inhabited subsequent to the certificate’s issuance.[66] The visa can’t be valid beyond a certificate’s expiration date.

5.

Military records, if any

6.

Court and prison records, if any

7.

Medical examination (vaccination form is not required) taken by a physician designated by the Consulate. This exam can only be taken after the interview has been scheduled. L

imited Validity: Timing of the medical exam is important. The TB portion of the medical exam is valid for 6 months if there is no tuberculosis (TB) finding (or if there is Class 2 or Class 3 TB), HIV, or Class A medical condition. The TB portion of the medical exam is valid for just 3 months if there is an HIV finding or certain TB findings (Class B1 TB Pulmonary, Class B1 TB Extrapulmonary). Other portions of the medical exam are valid for one year.[67] The visa validity can’t exceed the exam’s validity.

8. Evidence of available financial resources to demonstrate that the fiancé(e) will not become a public charge. This includes:

    • Form I-134, Affidavit of Support, by the petitioner[68]
    • Most recent federal income tax return (with W-2s and other attachments)
    • Other evidence of sustained income or assets, as prudent (e.g., for example, bank and investment statements; recent paycheck stub or employer letter confirming employment; a self-employed person may submit business or professional license, business bank statements, and background information about the business).
    • If the petitioner’s income does not meet the poverty guidelines, a Form I-134 by a joint sponsor may be submitted along with proof of U.S. citizenship or legal permanent residence, evidence of income or assets, and evidence of the relationship between the joint sponsor and foreign fiancé(e))

9. Two passport-style photographs[69]

10.

A copy of any divorce decrees, death certificates, or annulment decrees (for the citizen or foreign fiancé(e))[70]

11.

Updated evidence that you two intend to enter into a real marriage within 90 days of the foreign fiancé(e)’s admission. (The Consulate may wish to review the foreign fiancé(e)’s hukou for this purpose).

12.

The USCIS approval notice for the K-1 petition, and a copy of the K-1 petition packet (in case any or all of it has been misplaced by the government).

13.

Children applying for K-2 visas should have evidence that the foreign fiancé(e) has been granted full custody in a divorce proceeding or, if a joint custody situation exists, that the other parent is fully aware of the intended relocation to the U.S. and does not object.

14.

Resume / Foreign Travel List / U.S. Work Plan in Chinese and English, listing:

    • all educational history;
    • all of your employers and all specific job responsibilities and projects;
    • any publications you have written. Note titles, descriptions and dates of all publications. Be as comprehensive as possible;
    • a list of all foreign destinations visited, including dates and purpose of travel; and
    • a work plan explaining where the applicant(s) will seek employment after immigrating to the United States.

15. Prior U.S. immigration records, such as prior passports with U.S. visas or used for U.S. travel, visa extension applications and approval notices, and records of Immigration Court proceedings.

Any documents not in English should be accompanied by a certified English translation.[71]

Typically it’s convenient for a child seeking a K-2 visa to interview together with the K-1 visa applicant. However, it’s also possible for a child to apply for and receive a K-2 visa up to one year after the K-1 visa was issued, even if the parent has already married and been granted adjustment of status.[72]

An important function of the immigration attorney is to advise the foreign fiancé(e) regarding what documents to bring to the consulate in your particular case and to review those documents to be sure they are sufficient and persuasive.

More generally, it is the immigration attorney’s job to prepare the applicant for the interview, identifying any potentially problematic issues and advising you about the strategy for resolving those issues.

At many U.S. Consulates, including Guangzhou, neither the citizen petitioner nor the attorney is allowed to attend the interview.[73] This means that the attorney must prepare the fiancé(e) to be her own advocate. This often involves more work than if the attorney were able to attend the interview.

Entering the Consulate / Security Restrictions

On the day of the appointment, the applicant should arrive at the Consulate not more than 30 minutes before the scheduled interview[74] and may enter the Consulate just 15 minutes before the scheduled interview.[75] You may not be allowed to enter if you are late.

Enter through the consular customer entrance on Huaxia Road, near Exit B1 of the Zhujiang New Town subway station (on lines 3 and 5).

When you are near the Consulate, please pay attention to your personal safety and to secure your personal belongings. In the past, some persons have tried to take advantage of out-of-towners (外地人) near the Consulate.

Be prepared to pass through a security checkpoint. You will need to show your appointment letter and passport to enter.

You are not allowed to enter the Consulate while carrying any of the following items[76]:

  • Battery-operated or electronic devices such as mobile phones, digital diaries, digital watches, pagers, cameras, audio/video cassettes, compact discs, MP3s, floppy disks, laptops, or portable music players;
  • Large shoulder bags/purses – only bags that can be carried by hand will be permitted;
  • Bags such as travel bags, backpacks, briefcases, suitcases, leather, cloth bags, and zip folders – you can only carry plastic bags containing application-related papers;
  • Food items;
  • Sealed envelopes or packages;
  • Cigarettes, cigars, match boxes, lighters;
  • Sharp objects such as scissors, pen knives or nail files;
  • Weapons or explosive materials of any kind.
  • Other items prohibited at the discretion of security staff.

There is no facility at the Consulate General to store prohibited items. You must make arrangements to store these items before entering.

Document Checker

After you enter the Consulate, a local employee will collect some of your documents. This may include, for example, your passport, DS-160 confirmation page, and medical exam. The document checker will pass these documents to the consular officer.

The document checker may also ask some questions to see if your documents are complete and accurate, such as: Have you been to the U.S.? Have you lived in any third country for a year or more? Have you been a member of the Chinese Communist Party?

During the Interview

During the interview process, ink-free, digital fingerprint scans will be taken. The scan is used to establish your identity and for a biometrics-based background check.

During the interview, the consular officer will ask questions to be satisfied that the applicant is informed of the Form DS-160’s contents and will incorporate any changes requested.[77] The officer may require the applicant to respond to any further questions concerning grounds of inadmissibility under INA 212(a) and to submit any additional documents needed to establish eligibility. In fiancé(e) cases, the questions often turn on whether the marriage is valid. In short, it is the consul’s job to develop whatever additional information may be needed in determining the applicant’s eligibility to receive the visa.

The officers don’t ask each applicant the same questions. Instead, the officers tailor their questions to address their specific concerns about each case. The consular officer may require the applicant to answer any relevant question.[78]

Our firm will help the applicant form a strategy regarding how to prepare for and do the interview. This will include, for example, preparing the applicant regarding what questions to expect during the appointment and how to answer truthfully and in a way helpful to the case.

You may request that the consular officer return your original civil documents (e.g., marriage, birth, and police certificates) at the end of the interview, if you provide photocopies for the officer to keep.

Adjudication

The consular officer should adjudicate your application at the end of the appointment, notifying you of one of these results:

Approval

Refusal under 221(g): Refusal under section 221(g) of the Act is a temporary refusal for the Consulate to gather more information in the case:

  • If the officer wants more documents from you, he or she will give you a written list of the requested documents.
  • If the officer wants to investigate the case or request a background check from the Department of State in Washington, DC, or conduct an investigation, he or she will give you a written notice saying that “additional processing” is required.
  • If the officer believes that your relationship is a sham entered into only for purposes of securing a visa, and that you don’t intend to make a life together, the officer will return your case to USCIS with a recommendation that the petition be revoked.
    • In particular, the officer should only return the petition to USCIS based on a determination that the relationship is a “sham,” and may not do so merely because the couple has failed to submit sufficient evidence of the validity of the relationship.[79]
    • Consular officers must have “specific evidence,” generally unavailable to USCIS at the time of petition approval, to question USCIS’ approval of a petition due to fraud, changes in circumstances or clear error by USCIS.[80]
    • The Consular officer’s determination that the relationship is a sham may not be based on observations that are “conclusory, speculative, equivocal, or irrelevant.”[81]

However, USCIS will typically not revoke the petition. Instead, since the petition’s validity has typically expired, USCIS will simply notify the petitioner that the returned petition is no longer valid.[82]

Refusal under 221(a): This is a refusal on the basis that the applicant falls within the grounds of inadmissibility. In some cases, a waiver may be available. The waiver procedure is a hybrid of nonimmigrant procedures and immigrant procedures.[83]

3.6 After the Appointment

Return of Your Passport and the Approval Packet

If approved, the K-1 or K-2 visa will be placed in the applicant’s passport. In addition, the consul will give you a visa approval packet in a sealed envelope. The packet is made up of your supporting documents, including the K visa petition, birth certificate, duplicate Form DS-156, DS-156K, and the medical examination. Any accompanying child’s documents are enclosed in the parent’s packet. At the U.S. Consulate in Guangzhou, these materials are provided to you within a week after the interview, although delays are possible.

Check the Status of Your Application

You can check the status of your application any time at this website: https://ceac.state.gov/CEACStatTracker/Status.aspx. (The site is typically not updated during the 72 hours after the visa appointment).

You can also track your passport return at http://ustraveldocs.com/cn/cn-niv-passporttrack.asp. There are also ways to track your passport by email, chat, or telephone.[84]

If your status shows “origination scan,” it means your passport has left the Consulate and is on its way to the delivery location you have chosen. It is however not available yet.

Only when the status shows “ready for pick up,” does it mean you can go to the CITIC branch you have chosen to pick up your passport.

Visa Validity

The K-1 visa is valid to enter the U.S. one time, typically within a 6-month period, although this period could be shorter depending on the expiration of the validity of other documents such as your passport, the medical examination, and the police certificate.

Administrative and Judicial Review

  • If the grounds of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the principal consular officer at a post, or a specifically designated alternate, shall review the case without delay and record the review decision.[85]
  • An applicant may seek an advisory opinion from the Visa Office Advisory Opinions Division (AOD) if the applicant believes that the Consulate made a mistake of law (not fact).[86] AOD takes the position that advisory opinions are confidential, and will not release the opinion to the applicant or attorney. AOD will furnish only a letter notifying the attorney or the applicant of the decision and a summary of the basis for the decision.
  • Re-application for K-1: One option is to file a new I-129F and then apply again for a K-1 visa. Note the IMBRA limitations on the number of I-129Fs which may be filed, as discussed above.
  • Get married and then apply for a CR-1 immigrant visa: Another option is to get married and then seek a CR-1 immigrant visa.
  • Judicial review: Due to the court doctrine of “consular nonreviewability,” only in rare cases is it possible to challenge an immigrant visa refusal in court.

Step 4: Admission at a U.S. Port of Entry

4.1 Getting Ready

Inspection will be at your first U.S. port of arrival. If from there you will be transferring to a connecting flight, we recommend that you plan for your itinerary to include at least a three-hour layover at your first port of arrival. The reason is that although inspection of new immigrants may be quick, delays are possible.

Bring your visaed passport with you, of course. Also bring with you the sealed K-1 approval packet. If the Consulate determined that you have a “Class A” or “Class B” medical condition—but not if the Consulate determined you have no defect, disease, or disability—the Consulate will give you a second packet labeled “Medical Report,” which you should also bring with you.[87] You aren’t required to present your chest x-ray at the port of entry, although you are advised to bring it with you to the U.S. and keep that as part of your permanent medical records.[88]

In addition, the cautious approach is to bring with you in your carry-on luggage (not in your checked luggage) copies of all the documents we asked you to bring to the Consulate in connection with your case. In a small percentage of cases, the CBP inspector may want to review these documents.

4.2 Entering the U.S.

Inspection is usually cursory and brief. If we are aware of any potentially problematic issues, we will advise you beforehand about the strategy for dealing with them.

CBP is responsible for inspecting both immigration and customs-related inspections functions.

CBP has authority, without warrant or probable cause, to conduct interrogations and searches of persons and baggage.[89] This includes electronic devices such as laptop computers and smartphones. Since such devices may hold extensive and private data (e.g., trade secrets, attorney-client and doctor-patient communications, research and business strategies, health information, and financial records), you may be well-advised to use technological measures to protect your data, such as wiping your hard drive clean[90] or encrypting your data before international travel.[91]

Customs Issues and Carrying Cash

On the plane, the flight attendant will give you a Customs Declaration Form 6059B. This form includes basic information about what you are bringing into the country. If you are traveling with other immediate family members, you can complete one customs declaration for your entire family.

A complete discussion of U.S. customs laws is beyond the scope of this article, but it’s important to note that when entering the U.S., you will be required to declare to CBP the amount of “monetary instruments” you are bringing into the country. Monetary instruments refer to coins or paper money of the U.S. or other foreign countries, travelers’ checks, personal checks (endorsed) or money orders, securities or stocks in bearer form, promissory notes, bills of lading, etc. A person who carries currency or other monetary instruments in an aggregated amount exceeding 10,000 USD at one time into the U.S. is required to file with CBP a “FinCEN Form 105: Report of International Transportation of Currency or Monetary Instruments.”[92] Depending on the specific situation, failure to file the report, or filing report with a material omission or misstatement, or filing a fraudulent or false report, may be a crime and the monetary instruments may be seized and forfeited.[93]

When you arrive at the port of entry, there may be a special line for “New Immigrants.” If not, ask the CBP officer who is directing traffic which is the line you should stand in. Any accompanying family members may wait in the same line with you.

When you reach the front of the line, show the officer your passport and the sealed K-1 visa approval packet.

The CBP officer may serve you right there or may ask you to go to a room to the side of the main inspection area, called “secondary inspection.” The officer will keep the contents of the K-1 visa approval packet. The officer may want to review other documents and ask you questions along the same lines as the consular officer.

Only a judge can force you to reveal information to the government (including the login password or decryption key for an electronic device). And under the Fifth Amendment to the U.S. Constitution, a judge can’t require you to reveal information that is self-incriminating. However, you should never lie. And if you refuse to provide information, CBP may consider you uncooperative, which the officer may consider when deciding whether to let you enter the U.S. It’s in your interest to be courteous to agents at all times during the border inspection process.

When the officer decides to admit you to the U.S. in K-1 status, the officer will add to your passport an entry stamp showing your status as K-1 and the expiration of that status 90 days later.

Step 5. Terms of K-1 Status

5.1 Timing for Marriage

Your K-1 or K-2 status will expire 90 days after entry, as shown on your Form I-94, Departure Record.

You should marry within those 90 days. One tip for the marriage: after the ceremony, ask the state for a certified copy of the marriage certificate, which you will need for your adjustment application.

See below for the consequences of failure to marry during the 90-day period.

5.2 International Travel after the K-1 Admission

Since a K-1 visa is valid for a single entry, you would need to undergo a time-consuming new visa application to reenter the U.S. as a fiancé(e). Moreover, the new visa would be valid only for the balance of the 90-day period following your admission to the United States. And the marriage must still take place within 90 days from the date of the original admission to the United States. Instead of seeking a second K-1 visa, to travel abroad it’s usually best to quickly marry and apply for adjustment of status and, on that basis, apply for “advance parole” (permission to travel abroad while the adjustment application is pending). That application is generally adjudicated within 90 days of filing.

5.3 Employment Authorization While in K-1 Status

Under USCIS regulations, K-1 fiancé(e)s are automatically authorized to work in the United States for their 90-day period of admission as shown on the I-94.[94] However, to get evidence of their work authorization, K-1 fiancé(e)s need to apply for employment authorization documents (EADs).[95] Under U.S. law, when an employer hires any individual, the individual must show eligibility to work in the U.S. and the employer must confirm that using Form I-9, Employment Eligibility Verification. K-1 fiancé(e)s need EADs to confirm eligibility to work in the United States.

USCIS currently provides employment authorization to K-1 nonimmigrant for duration of status of up to 90 days, upon approval of an application for employment authorization (Form I-765).[96] Applying for this employment authorization is generally a waste of time because USCIS may take up to 90 days to approve the application, meaning that there would be no remaining period of employment authorized.[97] Generally, the best strategy is to wait to file an application for employment authorization with the application for adjustment to permanent resident status. That application is generally adjudicated within 90 days of filing.

5.4 Social Security Card

A K-1 or K-2 nonimmigrant can apply for a Social Security Card even without first having an employment authorization document (EAD). The passport and Form I-94 are sufficient evidence of eligibility to work in the U.S. to qualify for a Social Security Card.

This policy is not known to all Social Security employees. Therefore, it’s advisable for a K-1 fiancé(e) without an EAD to bring to USCIS a copy of the official Social Security Administration policy on this matter. (Our firm can give you a copy).[98]

The card will include the following legend, “Valid for Work only with DHS Authorization.”[99]

For more on application procedures, see www.ssa.gov.

5.5 Immigration Consequences of Potential Problems with the Marriage

K-1 Fiancées are Ineligible for Change or Extension of Status, or to Apply for Permanent Resident Status Other Than Through Marriage to the K-1 Sponsor

If the K-1 nonimmigrant does not marry the U.S. citizen sponsor within 90 days of admission in K-1 status, the K-1 and K-2 nonimmigrants are subject to removal (deportation).[100]

If there’s a decision not to marry, speak to an attorney about the wisdom of leaving the U.S. before K status expires in order to avoid the negative consequences of “overstay” in the U.S.[101]

A person in K-1 status is ineligible to apply to USCIS to change within the U.S. to another nonimmigrant classification, such as student, visitor, etc.[102] And it’s not possible to apply for an extension of K-1 or K-2 status.[103]

If the marriage does not occur until more than 90 days after admission, you are ineligible to adjust on the basis of the approved Form I-129F.[104]

A K-1 fiancé(e) is not eligible to adjust to permanent resident status other than through marriage to the U.S. citizen sponsor,[105] except that it may be possible for a battered spouse to self-petition for permanent residence, as mentioned below. This bar also applies to the fiancé(e)’s K-2 children.

This does not mean that fiancé(e) would be barred from acquiring lawful resident status if she were in fact eligible to immigrate based on other grounds, such as qualifying employment or marriage to a different U.S. citizen. She could only obtain her residency, however, by applying for an immigrant visa at an appropriate U.S. consulate abroad.

 

Divorce

The law is not clear about what happens if the couple divorces after the I-485 is filed but before it is adjudicated. But the Board of Immigration Appeals has held that a K-1 fiancé(e) may be granted adjustment of status even if the marriage to the petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that he or she entered into a bona fide marriage to the petitioner within 90 days of entry.[106] Of course, the timing of the divorce may raise questions about the bona fides of the marriage.[107] Further, the divorce doesn’t impact the requirement that the I-485 be supported by a Form I-864, Affidavit of Support, filed by the U.S. citizen petitioner.[108]

Nonviable Marriage

As discussed above, the key legal requirement is that at the moment of marriage the parties must have intended in good faith to establish a life together. So, technically speaking, the adjustment application should be approved even if the couple informally separates before the I-485 is adjudicated.

As a practical matter, however, if the adjustment of status application is filed not long after the marriage occurs, and the parties have already separated by the time of filing or by the time of the K visa holder’s adjustment interview, the USCIS will closely scrutinize the relationship to ascertain whether the marriage was a sham entered into primarily to obtain the beneficiary’s immigration status. The couple should prepare for strict USCIS scrutiny of the bona fides of the parties’ intent both when the K visa was issued and when the marriage took place.

 

Domestic Violence

Congress has enacted legislation to provide remedies so that noncitizen victims of domestic violence have the opportunity to attain or retain lawful resident status despite the fact that their U.S. citizen abuser may refuse to help them, or worse, may threaten to instigate their deportation.

Death of the U.S. Citizen Petitioner

Before Marriage

If the U.S. citizen petitioner dies before marrying the foreign fiancé(e), her right to remain in the U.S. will end.

After Marriage

If the U.S. citizen petitioner and the K-1 fiancé(e) marry within 90 days of admission, the K-1 nonimmigrant (and any K-2 children who are otherwise eligible) remain eligible to adjust status, just as if the petitioner had not died, even if the I-485 has not been filed or adjudicated.[109] There is no need to file a Form I-360. Eligibility ends if the K-1 nonimmigrant remarries.

Step 6. Adjustment of Status

6.1 In General

Following the timely marriage, you may file a Form I-485, Application to Adjust Status. As of the moment of marriage, you are technically out of status—you are no longer the fiancé(e) of the U.S. citizen petitioner. So it’s prudent to file the Form I-485 not long after the marriage. Note that a technical violation of status, such as remaining in the U.S. after K-1 status expires or working illegally will not make you ineligible for adjustment of status.[110]

The Form I-485 is an application to adjust to lawful permanent resident (LPR) status, i.e. get a green card. The application not only checks that you have married the citizen petitioner, but also checks (again) that the grounds of inadmissibility don’t apply and that your marriage isn’t a sham.

A second medical examination is not necessary for the adjustment application because an examination was already done for the K-1 or K-2 visa application. (But in the rare instance where one year has elapsed from the time of the medical exam to the time of filing the adjustment application, a new exam will be required.) Still, in conjunction with the adjustment application, the applicant will need to visit a USCIS-designated doctor to fill in a vaccination form.[111]

The time required for adjustment of status can be lengthy—sometimes over one year. Still, an adjustment application can qualify for an employment authorization card and advance parole, which allow international travel, within about 3 months of filing for adjustment.

If the marriage is less than two years old when the application for adjustment is approved, you will be granted conditional permanent resident status. You will be required to file a Form I-751, Petition to Remove the Conditions on Status, within 90 days of the two-year anniversary of the I-485 approval.[112]

For more information, see our firm’s Guide to the Form I-485, Application to Adjust Status.

6.2 Children “Aging Out” and Marrying

K-2 Visa and Admission Stages

To qualify for a K-2 visa and for admission to the U.S. in K-2 status, the child must be under age 21.[113]

USCIS may in certain cases be willing to expedite the I-129F in order to facilitate issuance of a K-2 visa before a child ages out.

It is not known to the author whether the U.S. Consulate in Guangzhou would currently be willing to expedite the K-1 and K-2 interviews in order to prevent age-out.

Adjustment of Status Stage

Regardless of how old the K-2 nonimmigrant is at the time the I-485 is filed or adjudicated, it is the age “at the time of admission to the United States with the K-2 nonimmigrant visa” which controls.[114]

Marriage of a K-2 Nonimmigrant

There doesn’t appear to be any authority on point, but since it is a K-2’s eligibility “at the time of admission to the United States with the K-2 nonimmigrant visa” which controls, marriage subsequent to admission should not impact eligibility for adjustment of status.[115]

6.3 Penalties for Marriage Fraud or Submitting False Information

I can’t stress strongly enough the serious consequences of sham marriage or submitting false information to USCIS or Department of State:

  • Any individual who knowingly enters into a marriage contract for the purpose of evading any provision of the immigration laws is subject to imprisonment for up to 5 years or a fine of up to 250,000 USD, or both.[116]
  • A person who willfully and knowingly falsifies a material fact, makes a false statement, or makes use of a false document in connection with an immigration application or petition may be fined up to 10,000 USD or imprisoned up to 5 years, or both.[117]
  • “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.” This means that a person who has engaged in such fraud or misrepresentation is permanently barred from entering the U.S. unless a waiver is granted.[118]
  1. See Friedberger v. Schultz, 616 F. Supp. 1315, 1318 (E.D. Pa. 1985) (noting that aliens were often unable to obtain visas to get married in the U.S.).
  2. H. Rep. No. 91-851, at 5 (1970).
  3. USCIS Same-Sex Marriages (Apr. 3, 2014), http://www.uscis.gov/family/same-sex-marriages.
  4. Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA 2013).
  5. See Matter of Manjoukis, 13 I. & N. Dec. 705 (Dist. Dir. 1971) (petition denied because 14-year-old petitioner was statutorily unable to enter into a valid marriage under Michigan law). But see Matter of Balodis, 17 I. & N. Dec. 428 (R.C. 1980) (petition approved where proposed marriage of first cousins invalid in state of intended residence, but valid if performed in another state).
  6. INA § 214(d); 8 C.F.R. § 212.2(k)(2).
  7. “The medical condition need not be the petitioner’s own; the USCIS has approved hardship waivers where the petitioner had a seriously ill close relative, and the petitioner’s presence was necessary for that person’s proper care. The petitioner’s hardship may also be psychological. The USCIS has several times granted waivers to persons who suffer from agoraphobia and claustrophobia, for whom travel would be disastrously traumatic.” Sarah B. Ignatius and Elisabeth S. Stickney, Immigration Law & Family § 7:48 (2014 ed.).
  8. INA § 101(a)(15)(K)(i).
  9. INA § 214(d).
  10. The “specified” offenses include domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse and stalking; homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of these crimes; crimes relating to a controlled substance or alcohol where the petitioner has been convicted on at least three occasions and where such crimes did not arise from a single act.. INA § 214(d)(3).
  11. 8 U.S.C. § 1375a(a)(5)(A)(iii).
  12. A “specified offense against a minor” generally includes any offense against a person under 18 years old involving: kidnapping (unless committed by a parent or guardian), false imprisonment (unless committed by a parent or guardian), solicitation to engage in sexual conduct, use in a sexual performance, solicitation to practice prostitution, video voyeurism as described in 18 U.S.C.A. § 1801, possession, production, or distribution of child pornography, criminal sexual conduct involving a minor or the use of the Internet to facilitate or attempt such conduct, or any other conduct that by its nature is a sex offense against a minor. Adam Walsh Child Protection and Safety Act of 2006, subsection A, § 111, Pub. L. No. 109-248, 120 Stat. 594 (July 27, 2006). See also Memorandum from Michael Aytes, Assoc. Director, Operations, USCIS HQDOMO 70/1-P, Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiance(e) under the Adam Walsh Child Protection and Safety Act of 2006, AILA InfoNet Doc. No. 07030669; Memorandum from Donald Neufeld, Acting Assoc. Director, Domestic Operations, USCIS HQ 70/1-P, Transmittal of SOP for Adjudication of Family-Based Petitions under the Adam Walsh Child Protection and Safety Act of 2006, AILA InfoNet Doc. No. 10041530.
  13. Memorandum from Michael Aytes, Assoc. Director, Operations, USCIS, Adam Walsh Child Protection and Safety Act of 2006, July 28, 2006, AILA InfoNet Document 06080264; Memorandum from Michael Aytes, Assoc. Director, Operations, USCIS HQDOMO 70/1-P, Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e) under the Adam Walsh Child Protection and Safety Act of 2006, AILA InfoNet Document 07030669.
  14. Section 402(b) of the Adam Walsh Act, Pub. L. No. 109-248, 120 Stat. 594 (July 27, 2006). See also 9 FAM 41.81 N13.1. A USCIS memorandum states that the petitioner must submit relevant evidence, including proof of rehabilitation, sufficient to “clearly demonstrate[], beyond any reasonable doubt, that he or she poses no risk to the safety and well-being of his or her intended beneficiary(ies).” Memorandum from Michael Aytes, Assoc. Director, Operations, USCIS HQDOMO 70/1-P, Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e) under the Adam Walsh Child Protection and Safety Act of 2006, at section D, page 5, AILA InfoNet Doc. No. 07030669, see also Memorandum from Donald Neufeld, Acting Assoc. Director, Domestic Operations, USCIS HQ 70/1-P, Transmittal of SOP for Adjudication of Family-Based Petitions under the Adam Walsh Child Protection and Safety Act of 2006, AILA InfoNet Doc. No. 10041530.
  15. INA § 214(d)(2).
  16. INA § 214(r)(4).
  17. INA §§ 101(a)(15)(K)(i), 214(d).
  18. Bark v. INS, 511 F.2d 1200, 1202 (9th Cir. 1975).
  19. See 8 C.F.R. 216.5(e)(2).
  20. Matter of Peterson, 12 I. & N. Dec. 663 (BIA 1968) (elderly couple with separate bedrooms).
  21. A marriage of convenience is a marriage between two people for practical or financial reasons and not for love or intimacy.
  22. For example, 18 U.S.C. § 1546 (visa fraud); 18 U.S.C. § 1001 (false statement); 18 U.S.C. § 371 (conspiracy); INA § 275 (marriage fraud).
  23. See e.g. Adjudicator’s Field Manual § 21.3(a)(2)(H).
  24. Nikrodhanondha v. Reno, 202 F.3d 922 (7th Cir. 2000) (although couple had 2 children, court upheld BIA denial where couple gave different years for when they first met, different reasons for the initial breakup, different periods of time when wife in Thailand for wedding, and false information as to when they were living together).
  25. In the analogous situation of applications for fiancée visas where one spouse is transgender, USCIS explicitly directs the petitioner to include evidence of plans to marry in a state which would recognize the couple’s marriage if the petitioner lives in a state that would not allow the couple to marry. See “Adjudication of Immigration Benefits for Transgender Individuals,” AILA InfoNet Doc. No. 12041360.
  26. For evidence to submit in support of a waiver of the requirement to meet, see Sarah B. Ignatius and Elisabeth S. Stickney, Immigration Law & Family § 7:48 (2014 ed.).
  27. See Form I-129F Instructions at 5 (June 13, 2013) (“Submit evidence that you and your fiancé(e) intend to marry within 90 days of your fiancé(e)’s entry as a K-1. Evidence of your intention to marry may include a statement of intent to marry.”)
  28. 9 FAM 41.81 N2.
  29. 8 U.S.C. § 1375a(b)(1)(C).
  30. Id.
  31. 8 U.S.C. § 1375a(e)(4).
  32. Id.
  33. 8 C.F.R. §214.2(k)(4).
  34. 8 C.F.R. § 214.2(k)(5); 9 FAM 41.81 N6.2.
  35. A prior lawsuit, Tran v. Napolitano, filed in the U.S. District Court in Portland, Oregon, in June 2010 and subsequently dismissed, challenged the USCIS regulation limiting petition validity to 4 months as ultra vires.
  36. 9 FAM 502.7-5(C)(3)(e).
  37. U.S. Dep’t of State, Nonimmigrant Visa for a Fiancé(e) (K-1) (visited May 4, 2014), http://travel.state.gov/content/visas/english/immigrate/types/family/fiancé(e)-k-1.html.
  38. Friedberger v. Schultz, 616 F. Supp. 1315, 1318 (E.D. Penn. 1985) (holding that the J-1 foreign residence requirement set forth in INA § 212(e), which by its terms applies to applicants for “an immigrant visa, or for permanent residence,” also applies to K-1s).
  39. 22 C.F.R. § 41.81(d).
  40. Friedberger v. Schultz, 616 F. Supp. 1315, 1318 (E.D. Penn. 1985).
  41. INA § 212(a)(10)(A).
  42. INA § 212(a)(3)(D). See Form I-601 Instructions at 4 (Nov. 23, 2010) (“you may apply for a waiver pursuant to INA section 212(a)(3)(D)(iv) if you are the … fiancée of a U.S. citizen”).
  43. 9 FAM 41.81 N4.
  44. 22 C.F.R. § 41.81(a).
  45. DOS Cable, SOP 61: Guidelines and Changes for Returning DHS/BCIS Approved IV and NIV Petitions, Cable 041682, Feb. 4, 2004.
  46. 9 FAM 41.81 N6.2; OI 214.2(k)(2).
  47. 9 FAM 41.81 N8.
  48. For more on this topic see, Grounds of Inadmissibility under U.S. Immigration Law, http://lawandborder.com/grounds-of-inadmissibility/. K-1 and K-2 visa applicants are subject to the same grounds of inadmissibility and are eligible for the same waivers as immigrant visa applicants. In this sense, they are treated differently than other nonimmigrant visa applicants because their intent is to immigrate to the U.S. 22 C.F.R. §.41.81(c); 9 FAM 41.81 N3-4. Even though the K-l has been characterized as the functional equivalent of an immigrant visa, a K-l fiancée is statutorily ineligible for relief on grounds requiring entry on an immigrant visa. Lee v. INS, 9 F.3d 1552 (9th Cir. 1993).
  49. 8 U.S.C. § 214.2(k)(5).
  50. 22 C.F.R. § 41.81(c).
  51. INA § 221(g)(3).
  52. 22 C.F.R. § 41.101(a).
  53. INA § 222(g); 22 C.F.R. § 41.101(c).
  54. Form I-129F (rev. June 13, 2013), Part 2, item 36.
  55. 9 FAM 502.7-5(C)(3).
  56. Immigrant and K Visa Application Fees, http://ustraveldocs.com/cn/cn-iv-immigrantkvisa.asp (last reviewed June 23, 2015).
  57. CGI Corp. Inc., Track and Retrieve My Passport (last visited Aug. 27, 2013), http://ustraveldocs.com/cn/cn-niv-passporttrack.asp.
  58. http://ustraveldocs.com/cn/cn-niv-passporttrack.asp.
  59. See a sample at http://ustraveldocs.com/cn/LetterOfAuthority.pdf.
  60. U.S. Consulate in Guangzhou, Medical Exam Instructions (Dec. 2008), http://tinyurl.com/cfmpjp.
  61. See generally U.S. Consulate in Guangzhou, K Visa Instructions (downloaded May 4, 2014).
  62. Effective October 2013, this form is required instead of the Forms DS-156, 156K, and DS-230.
  63. 22 C.F.R. 42.64(b); 42.72.
  64. 8 C.F.R. § 211.2; 22 C.F.R. § 42.64(b).
  65. 9 FAM 42.64 PN2.
  66. 9 FAM 42.65 N3.
  67. 9 FAM 40.11 N6 (Oct. 9, 2008).
  68. The State Department states that the Consulate may suggest submission of this form, but the U.S. Consulate in Guangzhou lists it as a required form.
  69. U.S. Dep’t of State, Nonimmigrant Visa for a Fiancé(e) (K-1) (visited May 4, 2014), http://travel.state.gov/content/visas/english/immigrate/types/family/fiancé(e)-k-1.html.
  70. Id. For a person who is unmarried, a notarized “single status” statement is no longer required.
  71. U.S. Consulate in Guangzhou, K Visa Instructions (downloaded May 4, 2014). This differs from the State Department’s general rule that “[d]ocuments in foreign languages, other than the language of the country in which the application takes place, should be translated” (emphasis added). U.S. Dep’t of State, Nonimmigrant Visa for a Fiancé(e) (K-1) (visited May 4, 2014), http://travel.state.gov/content/visas/english/immigrate/types/family/fiancé(e)-k-1.html.
  72. 9 FAM 41.81 N12.
  73. The attorney can contact the Consulate before the interview to inquire as to the Consulate’s position on certain legal issues. And if there is a problem at the interview the attorney can contact the Consulate afterwards to try to resolve the issue.
  74. CGI Group Inc. Security Regulations (last visited Aug. 27, 2013), http://ustraveldocs.com/cn/cn-niv-securityinfo.asp.
  75. But see CGI Group Inc., Immigrant Visa Information (last visited Aug. 27, 2013), http://ustraveldocs.com/cn/cn-iv-visaapplyinfo.asp (“All immigrant visa applicants, including children, must appear.”). In contrast, from December 2010 through early 2013, the consular appointment at the U.S. Consulate in Guangzhou had two parts. The first part was the fingerprinting and document intake. This was at the time shown on the appointment notice issued by NVC. Then, the next day the applicant would return to the Consulate for the actual interview at 7:30 am.
  76. CGI Group Inc. Security Regulations (last visited Aug. 27, 2013), http://ustraveldocs.com/cn/cn-niv-securityinfo.asp.
  77. 22 C.F.R. § 42.67(a)(3); 9 FAM 42.67 N2; 9 FAM 42.67 PN1.
  78. 22 C.F.R. §§ 42.62(b)(2), 42.63(c).
  79. 9 FAM 41.81 N6.5.
  80. DOS Cable #041682, SOP 61: Guidelines and Changes for Returning DHS/USCIS Approved IV and NIV Petitions, Feb. 24, 2004.
  81. Id.
  82. In such case, it may be worth arguing that USCIS should exercise its power to extend the validity of the K-1 petition, 8 C.F.R. § 214.2(k)(5), and then reaffirm it. However, I am not aware of any precedent for this.
  83. The actual application is for a nonimmigrant waiver under INA § 212(d)(3)(A). However, the nonimmigrant waiver wouldn’t be appropriate unless an immigrant waiver would also be available when the K-1 fiancée applies for adjustment of status. 9 FAM 41.81 NN9.1 – 9.3. If an immigrant waiver may be available, then the applicant files a Form I-601, Application for Waiver of Grounds of Inadmissibility. Id.
  84. CGI Corp. Inc., Track & Receive My Passport (last visited Aug. 27, 2013), http://ustraveldocs.com/cn/cn-niv-passporttrack.asp.
  85. 22 C.F.R. § 41.121(c). But see 9 FAM 41.121 N2.3-7(a) (the supervisor need not review all refusals).
  86. 9 FAM 41.121(d); 9 FAM 40.6 N6.1.
  87. 9 FAM 42.66 N15.
  88. 9 FAM 42.66 N15; IFM ch. 17.9.
  89. INA § 287; 19 U.S.C. § 1461.
  90. Exception: if you have notice of an impending civil suit or government investigation, you are obligated to preserve relevant material.
  91. A good resource for more information is the Electronic Frontier Foundation’s Defending Privacy at the U.S. Border, a Guide for Travelers Carrying Digital Devices (Dec. 2011), available at www.eff.org.
  92. 31 C.F.R. § 1010.340. The form is available at http://www.fincen.gov/forms/files/fin105_cmir.pdf.
  93. The crime is punishable by a fine of not more than 500,000 USD or imprisonment of not more than 10 years See 31 CFR §§ 1010.820(d), 1010.830, 1010.840.
  94. See8 C.F.R. § 274a.12(a), (a)(6)
  95. Id. ; Memo from Wiliam Yates, Acting Assoc. USCIS Dir. for Ops., “The Meaning of 8 CFR 274a.12(a) as it Relates to Refugee and Asylee Authorization for Employment” (Mar. 10, 2003) (discussing the “confusion … seem[ing] to arise from a blurring of the distinction between an alien having employment authorization versus an alien having evidence of employment authorization).
  96. 8 C.F.R. § 274a.12(a)(6).
  97. Efforts to facilitate work authorization for K-1s have been unsuccessful. See e.g., AILA USCIS Benefits Policy Committee Meeting with USCIS (Apr. 16, 2015), AILA Doc. No. 15042032. In fact, USCIS and the Social Security Administration have discussed a proposal to eliminate this category of employment authorization. Memo from Emilio T. Gonzalez, Director, USCIS to Prakash Khatri, USCIS Ombudsman, Response to Recommendation #25, Employment Authorization Documents, June 20, 2006. But the proposal was abandoned. Office of the Inpsector General, SSA, Hearing on the Role of Social Security Numbers in Identity Theft and Options to Guard Their Privacy (Apr. 13, 2011), http://oig.ssa.gov/newsroom/congressional-testimony/hearing-role-social-security-numbers-identity-theft-and-options.
  98. This policy is also controversial, and the Social Security Administration is currently considering changing the policy to require that the K-1 fiancée present an EAD.
  99. SSA, Your Social Security Number and Card 5, https://www.ssa.gov/pubs/EN-05-10002.pdf (last viewed Nov. 26, 2015).
  100. INA § 214(d). See e.g. Kalal v. Gonzalez, 402 F.3d 948 (9th Cir. 2005) (A woman who entered in K-1 status but then married a U.S. citizen who was not the petitioner was properly ordered removed.).
  101. For information about the consequences of “overstay,” see our Firm’s article, Admission to the U.S., and Your Rights and Responsibilities as a Nonimmigrant, available at http://lawandborder.com/admission-to-the-u-s-and-your-right-and-responsibilities-as-a-nonimmigrant.
  102. INA § 248(1); 8 C.F.R. § 248.1(a). Under the Violence Against Women and Department of Justice Reauthorization Act of 2005, change to T or U status is possible.
  103. 8 C.F.R. § 214.1(c)(3).
  104. INA § 214(d); INS Operations Instructions 214.2(k)(5). See also Memo from James A. Puleo, Assoc. INS Comm’r, Examinations, Legal Opinion Fiances or Fiancees Who Marry Later than 90 Days after Entry, CO 245-C (July 24, 1991). However, at least one federal appeals court has held that the 90-day limit may be tolled if, due to circumstances beyond the fiancée’s control, it was impossible to conclude the marriage within the given time frame. Moss v. INS, 651 F.2d 1091 (5th Cir. 1981). It may, however, be possible to adjust on the basis of a Form I-130, Petition for Alien Relative, filed simultaneously with a Form I-485. Puleo Memo, supra.
  105. INA § 245(d).
  106. Matter of Sesay, 25 I&N Dec. 431 (BIA 2011). The Board’s rationale is that the K-1 nonimmigrant’s adjustment eligibility is predicated on the I-129F approval and is fixed as of the time of admission to the U.S. as a K-1, conditioned on a timely and legally valid marriage to the petitioner. Id. at 439-440.
  107. Id. at 444.
  108. 8 C.F.R. 213.12(a), (b)(1).
  109. AFM ch. 10.21(b); USCIS Policy Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(k) of the Immigration and Nationality Act (PM-602-0017) (Dec. 16, 2010). See Memorandum, Donald Neufeld, Assoc. Director, Domestic Operations, et al, USCIS, HQDOMO 70/6.1.1-P, 70/6.1.3-P, AFM Update AD10-09, Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (REVISED) (Dec. 2, 2009), AILA InfoNet Doc. No. 09121430.
  110. INA § 245(c); 8 C.F.R. § 245.1(b)(4)(i) and 245.1(b)(5) and (6).
  111. Memorandum, Paul W. Virtue, Acting Exec. Assoc. Comm’r., INS Office of Programs, 96 ACT #055, HQIRT 50/5.12 (Sept. 29, 1997).
  112. INA § 216(a)(1).
  113. Note that the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (Aug. 6, 2002), does not apply to K-2 children. See Memorandum, The Child Status Protection Act—Memorandum Number 2, AD 03-15, Johnny Williams, Exec. Assoc. Comm.,Office of Field Operations, HQADN 70/6.1.1 (Feb. 14, 2003), AILA InfoNet Doc. No. 03031040. See also Alvidrez v. Ridge, 311 F. Supp. 2d 1163, 1165 (D. Kan. 2004).
  114. Matter of Le, 25 I&N Dec. 541, 546 (BIA 2011); cf. Carpio v. Holder, 592 F.3d 1091, 1102 (10th Cir. 2010).
  115. Josh Lunsford, Understanding Marriage-Based K Nonimmigrant Visas: The Difficulty of Saying “I Do,” EOIR Immigration Law Advisor 1, 16 (June-July 2013).
  116. 8 U.S.C. § 1325.
  117. 18 U.S.C. § 100.
  118. INA § 212(a)(6)(C)(i).

8 Replies to “K-1 Fiancé(e) Visa Guide”

  1. Dear Sir,

    I’ve been denied a K-1 visa under section 221(g) of the Immigration and Nationality Act. First let me state out what the consulate said in its letter to me:

    We are unable to issue a visa because we have found the applicant ineligible under section 221(g) of the immigration ACT, and INA, this section prohibit the issuance of a visa to anyone whose application doesn’t comply with the INA or regulations issued pursuant thereto.

    Unless revalidated, I-129F petitions are only valid for 4 months from the last action by the USCIS or consular office. We are not able to re validate the above case and will return to the NVC which will then transfer the case to the USCIS office that originally processed the subject petitions. USCIS will not reopen the case. Please do not contact this embassy or the NVC regarding this case.

    Please, what is the next step my fiance and I should take?

    Terrymoore Kevwe Ezekiel

    1. Terrymore,

      As mentioned above, an approved K-1 petition is valid for a period of 4 months, but “may” be revalidated by a USCIS or a consular officer thereafter any number of times for another 4-month period if the officer finds that the parties are free to marry and intend to marry within 90 days after the fiancé(e)’s entry into the United States. So there is a risk that an officer who thinks that the applicant has not pursued the visa timely or who is not convinced of the validity of the marriage may effectively deny the K-1 visa application simply by allowing the petition to expire and refusing as a matter of discretion to revalidate it.

      Your next step may be to consult with our law firm or another competent immigration attorney to analyze the likely reasons for why the officer refused to revalidate the petition (and maybe ask the officer). The next steps in the case will depend on that analysis.

  2. I am an American citizen and my fiancee is a Russian national. We currently live together in Guangzhou, China. I am planning on returning to the United States to enroll in a Graduate degree program, and I plan to bring my fiancee with me.

    We plan on applying for a K-1 visa, but I would like to know if my fiancee will be allowed to enter the United States on her valid B-2 Visitor’s visa during the ~5month processing time for the I-129F petition approval so that we are not separated for such a long time. If so, will she also be able to apply for her K-1 visa inside the United States, or will she need to return to her home country to apply for the visa (after successful I-129F petition approval)?

    Any clarification that you could provide will be helpful as I consider my options for consulting with immigration attorneys.

    1. Brad:

      The purpose of a K-1 visa is to enter the U.S. to marry and file a Form I-485, Application to Adjust Status (i.e., a green card). A K-1 visa cannot be issued in the U.S., only at a U.S. Embassy or Consulate abroad.

      If a Form I-129F, Petition for Alien Fiancee, has been filed on a person’s behalf, a B-2 visa may still be issued to that person and that person may be permitted to enter the U.S. in B-2 status. However, a B-2 visa may only be used for purposes of visiting the U.S., not for purposes of moving to the U.S. A consular officer who suspects a B-2 visa applicant may move to the U.S. will deny the visa, and a CBP officer who believes a B-2 visa holder intends to move to the U.S. will deny admission. For more on this topic, see here.

      While I can’t give advice about your specific case without learning all the facts through a consultation, the bottom line is that a person with a pending Form I-129F filed on her behalf cannot short circuit the K-1 visa process by moving to the U.S. with the B-2 visa.

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