FIANCEE VISAS: WHERE SHOULD YOU MARRY?
FIANCEE VISAS: WHERE SHOULD YOU MARRY?
Lawyers enjoy this area of law, because they have happy clients who are looking forward to their new life together. But this area of law also has some tricky areas that you need to know about before beginning the process to get a fiancée visa. Since female fiancées represent over 95% of the cases presented, this article will use the feminine form of fiancée, but it is intended to include both male and female fiancées. A fiancée visa is also called a K1 and is available only for U.S. citizens marrying non-U.S. citizen. K1 visas are not available for permanent residents, also known as Resident Aliens or Green Card holders.
Basically, a fiancée visa:
a. Permits a U.S. citizen to bring someone they met abroad into the United States.
b. The person brought into the United States get a four month window in which they are allowed to stay in the
United States for up to 3 months.
c. The U.S. citizen must either marry the person they brought in or the foreign person must return before the 3-month expiry of the visa.
d. The K1 cannot be extended.
e. A new fiancée may not be substituted on an existing K1 visa.
f. A change of status to another visa is not allowed.
g. A change of status to a visitor visa is not allowed.
h. A fiancée who entered on a K1 visa may not apply for a Green Card number under another category.
In order to understand the value of this visa, a little about immigration law must be explained.
Essentially, if someone comes into the United States desiring to stay (as is assumed about an entering fiancée or spouse), then they cannot come in as a nonimmigrant. This is because a nonimmigrant is a person that enters but just for a temporary period of time, such as a visitor going to Disney World or a business executive flying to New York for a meeting. A common question is whether it would be easier to marry abroad, and then enter the U.S. as a married couple. This is not permitted. If a U.S. citizen marries someone abroad, the new spouse must either wait for a Green Card to be approved, which is a slow process, or they can apply for a K3 visa which allows them to wait inside the United States for the Green Card to be approved. This process can take 6 months or longer, though at times it has taken only 3 months. To find out the wait time, it is best to speak with a lawyer. Remember, that a U.S. citizen may not, under any circumstances, marry someone abroad and bring them back into the United States with them.
However, there are options if a U.S. citizen has met someone abroad (or met someone through the internet, and then went abroad to meet them personally) and realizes that they do not want to ever be separated from that person again. What are the options? Well, the options include: 1. Go to the person’s country, marry there, and then have them wait to receive their Green Card (Resident Alien Card) abroad (longest wait); 2. Go to the person’s country, marry there, apply for a K3 visa, and have the new spouse come to the United States to wait for a Green Card (about equal to or a little longer wait than a K1 Fiancée Visa); or 3. Apply for a K1 Fiancée visa and when the person comes to the United States for their 3 month allowance, marry them, and immediately submit a Green Card application.
If a U.S. citizen decides to go abroad and marry the person, then they need to contact a lawyer before they go, so that they can get all of the requirements they need when they go abroad, saving the trouble and cost of having all of the requirements shipped.
What is that referring to? There are 2 or 3 different sets of information required:
a. Forms for the government must be completed. If a law firm assists in the process, they will have
questionnaires in addition to the government forms. These need to be completed for the U.S. citizen, as well
as, the fiancée so that the law firm may prepare the government forms in time and the U.S. citizen is able to
take them with them when visiting their fiancée abroad. If the forms are not taken with the U.S. citizen upon
their trip abroad, they will have to pay to internationally ship the documents to their fiancée so that original
signatures may be obtained, and then pay to have them shipped back to the United States, delaying the visa
process.
b. The government also requires what is called documentary evidence, which includes pictures, divorce
certificates, birth certificates, and so on. A lot of money can be saved by gathering these items when the U.S.
citizen travels abroad. When submitting the case, copies are required, with originals of the documentary
evidence being required only at the interview unless the government believes that the forms submitted are
fraudulent. If they believe the forms are fraudulent, they may request originals sooner.
c. In addition, law firms like to prepare a Memorandum of Law, which is also called a Memorandum of Points and Authorities, in cases involving K1 visas. This is simply a document that applies the facts of each particular case to cases and code sections of the law so that the law firm can make a case for the visa, because forms cannot always make a case. For example, assume that “J Jones” was charged with theft, and the only thing he submitted in his defense was a form with his name, address, and other basic information. Would that make his case? Absolutely not. The same is true in immigration law. The required forms do not always make a case, and the government may request more information through a ‘RFE’ or Request for Evidence, where they basically ask more questions. To avoid the case being slowed down by a RFE, it is better to provide the government with everything from the start.
A common question is whether a fiancée is able to visit the United States while their K1 visa is pending. If, for instance, an emergency situation came up and they would return abroad shortly, they most likely could visit. The snag is that a K1 is an exception to the nonimmigrant rule, since they intend to immigrate and remain in the United States. So they are not suppose to be given a visa to travel, but if they can prove that they will return to their original country and do not intent to stay in the United States on this trip, then they can technically make the trip. In reality though, Embassy personnel rarely let someone to visit while their K1 is pending.
The same is true for a K3, or Green Card application. Technically, as long as the person does not intend to stay in the United States on this trip then they could be given a visa, but Embassy personnel abroad rarely do this.
One very important issue that needs to be addressed deals with people who believe they will trick immigration officers to allow them to enter the country on a temporary visit and then the person tries to remain in the United States. Yes, there are those that are able to not get caught doing this. But, if the person entering is caught, they risk being permanently barred from the United States for committing immigration fraud. If this fraudulent entry is used to file for a K1 visa, both the U.S. citizen and the foreign person are guilty of first-degree immigration fraud, which has a penalty of 5 years in federal prison and a fine of $250,000. It is unfortunate for someone to wait a year or more for a Green Card interview and then get arrested, or to have an enemy send the Immigration Department a letter, causing them to investigate the foreign person’s immigration status.
Often people talk of situations where someone came into the United States, married, and filed for a case with a successful conclusion. This can and does happen. The key is that the foreign person has to enter the United States without intent to stay. Preferably, the foreign person has not met their fiancée yet, but instead came to the United States for vacation and happened to meet the love of their life, deciding to get married while they are here. In situations like this, there is not a violation of section 214(b), which deals with nonimmigrants not being allowed to stay if they intended to immigrate.
This works only because the foreign person cam into the United States without an intent to stay; they only intend to visit. But cupid intervened, brining the person of their dreams into their life unexpectedly. Then again, if the foreign person and a United States citizen had been communicating and the foreign person later comes to visit, they end up marrying on that trip, and the foreign person remains, the situation is different. First, it is different because the immigration officer would most likely not have allowed them in if they had known the truth. Second, at the Green Card interview an immigration officer can argue that the person came to the United States with the intent to stay and deny the case.
