Marrying a Foreign National Part IV
Filing for a K-1 Visa for FiancÚ of a U.S. Citizen Who is Currently Residing Outside the United States
In the previous articles we have discussed options for bringing the spouse of a U.S. citizen to the United States. In this section, we will discuss how to bring your fiancÚ to the United States.
In order to bring your fiancÚ to the United States, you must follow strict U.S. Citizenship and Immigration Services (USCIS) guidelines. Only U.S. citizens can petition for their fiancÚ. In order to file a fiancÚ petition, you must prove that you have met your fiancÚ in person, or demonstrate a valid reason why you are unable to arrange a meeting. A valid reason usually involves a disability or religious or cultural custom, not financial reasons. Additionally, once the K-1 fiancÚ visa is issued and your fiancÚ is admitted to the United States, you MUST marry your fiancÚ within 90 days, or your fiancÚ will be required to leave the country and have no chance to adjust or change his or her status.
In order to bring your fiancÚ to the United States, it is a two step process. The first step is filing the I-129F petition at the Service Center which has jurisdiction over the petitioning U.S. citizen. For example if you are living in Cincinnati, Ohio, the Nebraska Service Center has jurisdiction. Check the USCIS web site if you have questions where to file your application. Step II will be filed in the U.S. Consul in the foreign national's home country.
Step I is filed on Form I-129F and must include color photographs of both parties. The petition must be supported by proof that the parties:
It is O.K. if the petitioner does not have all of these items. However, you must prove that you have personally met your fiancÚ and you are both legally able to marry. Once USCIS receives the I-129F petition and accompanying documentation, USCIS will issue a receipt on Form I-797, and the petitioner can use this receipt number to check the case status on line. If USCIS has no questions about the case, it will eventually approve the petition and send the petition to the appropriate Consul or post. This is the beginning of Step II.
Importantly, On January 5, 2006, President Bush signed International Marriage Broker Regulation Act" (IMBRA). The International Marriage Broker Regulation Act provides that a petitioner for a K nonimmigrant visa for an alien fiancÚ(e) (K-1) or alien spouse (K-3) must submit with his or her Form I-129F information on any criminal convictions of the petitioner for any of the following "specified crimes such as 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
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. This can include Driving Under the Influence (DUI) and public intoxication.
Further, The International Marriage Broker Regulation Act imposes limitations on the number of petitions a petitioner for a K nonimmigrant visa for an alien fiancÚ (K-1) may file If the petitioner has filed two or more K-1 fiancÚ visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver. These limitations do not apply to petitioners for a K nonimmigrant visa for an alien spouse (K-3).
The International Marriage Broker Act can complicate the K-1 fiancÚ visa and K-3 visa petition process if you have been convicted of the listed crimes or have filed previous K-1 fiancÚ petitions in the past.
Step II involves 'Consular processing' when more forms will be filed with the U.S. Department of State's National Visa Center located in New Hampshire. The National Visa Center will contact the U.S. citizen to continue processing of the case. Usually the National Visa Center will require the beneficiary to complete Form DS-156 and obtain the medical examination.
An Affidavit of Support on Form I-864, or I-134, must be submitted for Consular processing. The Affidavit of Support is used to show that the foreign national will not become a 'public charge'. Therefore, the U.S. citizen must show that he or she can 'financially support his or her fiancÚ'. In order to show 'financial stability', the Petitioner must provide USCIS with his or her tax records (IRS Form 1040) for the past three years, including IRS Forms W-2 for all three years, and a letter from his or her employer showing present employment. If the U.S. citizen Petitioner does not meet the financial standards set by the U.S. government, a 'co-sponsor' must be found to help alleviate the financial burden. The Affidavit of Support is a binding contract between the U.S. government and the U.S. citizen that states if the foreign national is ever to receive public benefits from the U.S. government, the U.S. citizen will agree to reimburse the government for these benefits. The contract is binding for ten years, or until the foreign national becomes a U.S. citizen.
The U.S. citizen will be responsible for submitting this documentation in the United States. In the meantime, the foreign national in his or her home country will be required to obtain a valid passport that is good for at least six months from his or her country. Additionally, he or she will be required to undergo a medical exam at a doctor designated by the U.S. Consul. Further, he or she will need to obtain a police certificate from the authorities in every country he or she has lived for one year or more since reaching 16 years of age.
Once these tasks are completed, the U.S. Consul will notify the foreign national to appear at the Consul for an 'fiancÚ visa' interview. The U.S. citizen fiancÚ does not need to attend this interview, but can if he or she wants. At the interview, the Consular Officer will closely scrutinize the visa application. The Immigration examiner tends to look for several things:
- have met in person within two years before filing such as plane tickets and passport stamps showing visits
- intend to marry
- are legally able to marry, including proof of the legal termination of any prior marriages of either
- letters of parties with personal knowledge of the relationship
- photographs showing the parties together
- correspondence between the parties by letter or email
- telephone bills
- receipt for engagement ring
- documentation of wedding plans
The Consul is not looking for 'golden answers', he or she is looking for the truth and consistency. The Consul is just looking to see if there is a bona fide relationship and the couple intends to spend a life together. It is a crime to marry a foreign national in order to help him procure an Immigration benefit like a 'green card'.
At the end of the interview, the Consular Officer will render a decision on the case. If approved, the foreign national will receive a visa in his or her passport. Sometimes it can take a few weeks to obtain the actual visa, therefore no travel arrangements should be made until the foreign national actually receives her passport and visa back from the U.S. Consul. Upon receiving the fiancÚ visa, the foreign national may travel to the United States, and upon landing on U.S. soil, he or she will be admitted to the United States as a fiancÚ on the K-1 Visa.
Once the alien fiancÚ is admitted to the United States, the U.S. citizen must marry his or her fiancÚ within 90 days or your fiancÚ will be required to leave the country and have no chance to adjust or change his or her status. Employment may be authorized during this period by filing an additional forms with USCIS.
If the U.S. citizen marries his or her fiancÚ within 90 days, the U.S. citizen spouse may now file for their adjustment of status (green card). He or she will apply for adjustment of status to legal permanent residence in the United States.
He or she must accompany this form with proof that he or she married the U.S. citizen fiancÚ within the required 90 days. It is advisable that the U.S. citizen and his new husband or wife show proof of a bona fide relationship such as a co-mingling of assets, or other evidence of a valid relationship.
An Affidavit of Support on Form I-864 must be included in the application for adjustment of status. The Affidavit of Support is used to show that the foreign national will not become a 'public charge'. Therefore, the U.S. citizen must show that he or she can 'financially support his or her spouse'. In order to show 'financial stability', the Petitioner must provide USCIS with his or her tax records (IRS Form 1040) for the past three years, along with IRS forms, W-2 for all three years, and a letter from his or her employer showing present employment. If the U.S. citizen Petitioner does not meet the financial standards set by the U.S. government, a 'co-sponsor' must be found. The Affidavit of Support is a binding contract between the U.S. government and the U.S. citizen that states if the foreign national is ever to receive public benefits from the U.S. government, the U.S. citizen will agree to reimburse the government for these benefits. The contract is binding for ten years, or until the foreign national becomes a U.S. citizen.
One advantage of this filing is that the foreign national may also apply for an EAD (employment authorization document) on Form I-765. This will allow the foreign national to work, pending the adjudication of the I-485.
Once all the forms, fees, and evidence are ready to file, the U.S. citizen Petitioner and alien spouse Beneficiary can file at the 'local' USCIS office. For example, if you are living in Cincinnati, Ohio, you can file at the USCIS office at 550 Main St., Cincinnati, Ohio, 45202. Please check the USCIS web site if you have questions where to file your application.
Once the forms are filed, the local USCIS will forward the application to the National Benefits Center in Missouri (USCIS is preparing to have direct filing in the future). The NBC will then issue receipts to the Petitioner and the Beneficiary. The receipts will instruct the foreign national beneficiary to contact USCIS for fingerprinting and biometrics. Usually, within 90 days of filing, work authorization will be issued, and the foreign national is now able to work. If the foreign national does not receive his or her authorization within those 90 days, he or she may then go in to a local USCIS office to receive an interim EAD card.
Then the wait begins. Upon filing, it can take at least 6 months to be called in to Immigration for an adjustment interview. At this interview, the U.S. citizen petitioner and foreign national beneficiary must appear at their local USCIS office to meet with an Immigration examiner. This meeting will be conducted under oath, and sometimes it will be video recorded.
The USCIS examiner tends to look for several things:
- To confirm the information on the forms, or make changes, if necessary, for example, change of address or phone number
- That the foreign national has violated U.S. Immigration laws
- That the foreign national is not a criminal or terrorist
- That there is a bona fide relationship
- That the U.S. citizen Petitioner can 'financially support' the foreign national
The USCIS examiner will carefully examine the validity of the marriage. Examiners tend to ask questions that 'most married couples know about one another'. For example, they will ask, "How and when did you meet? Have you met each other's family? Who proposed to whom?" Sometimes the questions are more detailed.
The examiner can also separate the couple in different rooms, and question them separately. The examiner will ask questions like, "How many bathrooms are in your home or apartment? What color is the carpet or shower curtain? Is there a television in the bedroom?" Also, they may ask "Who woke up first this morning? Did you eat breakfast together? If so, what did you eat? What did you do last night?"
The examiners are not looking for 'golden answers', they are looking for the truth and consistency. It is O.K. if one spouse was working or out with friends the night before. They are just looking to see if there is a bona fide marriage and the couple intends to spend a life together. It is a crime to marry a foreign national in order to help him procure an Immigration benefit like a 'green card'. If the U.S. citizen spouse was paid to marry the foreign national, he or she can be fined or go to jail. The foreign national will be detained and removed from the United States.
At the end of the interview, if all security checks and evidence is present, the Immigration examiner will render a decision on the case. If approved, the foreign national will receive an I-551 stamp in his or her passport. This is valid proof of permanent residence. The foreign national can work and travel with the stamp, and eventually the actual 'green card' will come in the mail.
Sometimes the USCIS examiner will request 'additional evidence'. If there is something missing from the file, for example a birth certificate, translation, or divorce certificate, the examiner will request that these documents be provided. Additionally, the examiner may ask for more proof of a bona fide marriage. That is why it is so important to try to provide Immigration with this evidence before the interview. There are countless scenarios in which Immigration may request additional evidence. Therefore, it is extremely important to bring everything relevant and 'the kitchen sink' to the interview.
It must be noted, if the U.S. citizen and the foreign national have been married less than two years, residence will be 'conditional'. The conditional status is like permanent residence in all respects and benefits except it is subject to termination within two years. Termination usually comes as a result of divorce. Additionally, the permanent residence status could be revoked if the couple fails to apply to remove the condition by using Form I-751 during the 90 days prior to the two year anniversary of the foreign national obtaining conditional status. If the couple is divorced during this two year period, the foreign national will have the burden of showing that when he or she entered the marriage, it was in good faith. If the foreign national is able to do so, he or she will receive permanent residence.
Bringing your fiancÚ to the United States can be an exciting time. However, you must be prepared and patient, but eventually you and your fiancÚ will be able to enjoy life together.
- To confirm the information on the forms or make changes, for example, change of address or phone number
- That the foreign national entered the United States legally
- That the foreign national is not a criminal or terrorist
- That there is a bona fide marriage
- That the U.S. citizen Petitioner can 'financially support' the foreign national