K-1 visa
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A K-1 visa is a United States nonimmigrant visa benefiting fiancés and fiancées of US citizen petitioners. The Application is made by the petitioner in the US on a USCIS form I-129F filed by mail at a USCIS Regional Center. The Applicant must provide detailed information and supporting documentation to establish that both parties are legally free to marry, have met each other, intend to marry, do not have disqualifying criminal histories, and proof of identity and citizenship. Recent changes to the Law limit the number of petitions a Petitioner can make, and the Petitioner must not have a criminal history of sexual or partner abuse. Other recent changes in the Law also severely limit the role of "marriage agencies" in the introductions, and any involvement must be disclosed. The fiancé(e) has a right to be informed about the Petitioner's background. If approved, e.g., six months is about normal, the Application materials will all be forwarded to the National Passport Center for processing. Then the whole paper file wrapper is sent to the US embassy or consulate in the jurisdiction in which the fiancé(e) resides abroad [1]. The Embassy will contact the fiancé(e) and schedule an interview date. In the meantime, the fiancé(e) has to have a medical examination at an approved clinic, to screen for certain infectious diseases like HIV, Tuberculosis and Syphilis. The Embassy staff will question the fiancé(e) and ask for additional documents, all in a search to see if this is a legitimate intention to marry and not some complex plan to skirt US Immigration Laws. If the interview goes well, the visa is granted immediately, but the fiancé(e)'s passport may need to be kept for a few days for processing. The fiancé(e) then has six months to enter the US, and 90 days after that to marry the Petitioner. The fiancé(e) cannot marry any other person, and must return if not married to the Petitioner. If the fiancé(e) has children, and they were properly identified in the original petition, then they will be issued K-2 visas. Such K-2 visas depend on the parent's K-1 visa.
After marrying, an "Adjustment of Status" (using a USCIS form I-485[2]) must be filed that will convert the K1 fiancé(e) and K2 children status to that of "Conditional Lawful Permanent Resident Status", e.g., a green card. It can take as long as a year after the filing of a correct I-485 to be invited to a local USCIS Office for an interview of the Petitioner, K1 fiancé(e), and any K2 children. The Interviewer is essentially interested in ascertaining if this marriage is a legitimate marriage. If the Interview goes well, the Greencards will arrive in the mail in a few weeks. If the Petitioner or the fiancé(e) refuses to attend the Interview, the fiancé(e) will lose legal status and must leave the US. The USCIS will send out a notice to this effect when a scheduled Interview is missed. The Conditional Permanent Resident Card can be converted just before the two year anniversary of the issuance of the conditional Greencard to unconditional status by making another application and attending a second Interview. Otherwise, the Conditional Permanent Resident Card will expire. Again, the Interviewer will be looking to see if this is a legitimate marriage. If however, the couple has split up and a history of spousal abuse can be documented to the USCIS, the fiancé(e) alone can apply for the unconditional status. In other words, the power of the Petitioner to coerce and intimidate the fiancé(e) is reduced and the fiancé(e) will be excused by the USCIS if it can be shown the separation or divorce was the fault of the Petitioner. This ties back in with not granting K1/K2 petitions to US citizens that have a history of violence or sex crimes. The foreign spouse may apply for US citizenship three years after the issuance of the Conditional Permanent Resident Card if married the whole time to the US Citizen, or otherwise five years after the issuance of the Conditional Permanent Resident Card. The foreign spouse may obtain a social security number upon arrival in the US after marriage. An advance parole document might be filed to travel outside the US and return, etc while the adjustment of status (I-485) is pending. A work authorization card (EAD) can be obtained before the Green Card is in hand, but its usefulness and life are very limited.
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[edit] K1 visas designed for ease of entry
The K-1 process was introduced recently (around 2000) as a bureaucracy-reducing measure for US citizens desiring to marry foreigners. It allows the fiancé(e) to enter without first obtaining the green card, which can then be obtained while in the USA. It can still be cumbersome in that the same steps must still be performed (just without such a long wait in the foreign country). The validity of the relationship/marriage is potentially subject to immigration scrutiny at several different times--when the original application for the K-1 visa is made, at the interview at the US Consulate abroad, and then later after marriage when it is time to file for Adjustment, and once again near the end of the 2-year waiting period. It has the advantage that it allows the foreign fiancé(e) to enter the US with the intention of marrying a US citizen.
Edit: (C.Old) The K-1/K-2 visa came into existence with the enactment of (Pub.L. 91-225 on April 17 1970) for the sole purpose of conducting a valid marriage with the original US citizen petitioner within 90 days of entry for the ultimate grant of Legal Permanent Residency. This is to correct the statement above “The K-1 process was introduced recently (around 2000)” This contributor maybe thinking of the addition of the K-3/K-4 visa classes that were implemented due to the LIFE Act or Legal Immigration Family Equity (LIFE) Act of 2000 Pub. L. 106-553.
Visas fall roughly into two classifications, nonimmigrant (for visitors, employees, and missionaries, for example), and immigrant (permanent visas for things like the visa lottery, families intending to move permanently to the USA, business investment, and new marriage partners). The K1 visa is in a bit of a grey area: although it is officially called a nonimmigrant visa, applicants intend to apply for immigrant status after arriving in the USA.
[edit] Legal philosophy of K1 visas
A US citizen may marry any foreigner under the law, with a long list of exceptions. Human rights laws, international law, and US constitutional law together create the right of a US citizen to marry a fiancé(e) of their (mutual) choosing, no matter what the citizenship (national origin, race) of the fiancé(e). The legal philosophy behind the bureaucracy (forms, interviews, and proofs) of K1 visas (along with visas for spouses and their family members) is that the government can limit human and constitutional rights only if there is a compelling state interest, or, in other words, an overriding concern that affects the rights of other citizens. And the USA has established a large list of reasons: national security, controls against "subversives", crime, etc.[citation needed]
[edit] Problems with K1 visas
In a time of great controversy over foreign residents, the legal immigration process is considered slow and underfunded. A review of 1,899 K1 Visas showed that the average wait from initial filing to a Consular interview is 181 days[3], with more delays possible after the interview. However, this is considered an improvement over the old-style spousal visas.
[edit] Problems using other visas to get married
A foreigner may enter the US on a different type of visa, and then get married. However, the laws on temporary visitation are clear that the purpose of the visit must be honest. If someone has this intention to marry a US citizen when they first enter the US as a visitor (e.g. on a tourist or student visa) and then plan to remain in the US to live and work, they can be denied admission if immigration finds out that they had concealed this intention at the time of admission. This requires the "tourist" to be quite covert about their intentions, hiding things like engagement rings, photos of the couple together, and large amounts of personal belongings that might signify an interest in moving permanently to the US. It is important for the applicant to keep a clear intention when entering the US on any visa: are they entering to work, to study, to visit as a tourist, to do missionary work, or to immigrate (which is the only status that seems to include everything). Behavior that mixes these codified intents is, at best, frowned upon by immigration, and at worst might ultimately result in denial of visa, entry, adjustment of status, and possible deportation of the foreign national, even after a couple is legally married. They must maintain good records of their relationship and eligibility and show the government no cause whatsoever to believe that the fiancé(e) is not eligible for permanent residency.
Some fiancé(e)s think they might want to get married, but are not 100% certain, and need more time to get to know each other or to adjust to the new country. The fiancé(e) may qualify for a visitor visa if the intention is not to get married in the USA (but to come and go and get married in another country, to return again on an immigrant visa). However, by applying for a K-1, the foreign fiancé(e) may be much more open about their intentions since the purpose of the visa is to allow a foreign citizen to remain in the United States for 90 days to get married, with the idea of living and working legally after marriage. If the intent to marry is made clear enough, and something does happen that makes the couple decide not to marry, then the fiancé(e) may leave the country without repercussions. However, in the case that the couple marry after entry on another type of temporary visa, there are some penalties under the law. In many cases the marriage will be upheld and immigrant status granted to the foreign spouse, but sometimes the foreign spouse risks being deported. Limitations have also been put into place to discourage marriage by visitors on other visas. For example, a K1 visa may not be issued to a recent student visitor (to discourage foreigners being students merely for the purpose of meeting US spouses). Though the K1 visa may take more time in planning, it minimizes risks that wedding plans will be scuttled at the last moment by a denial of admission.
A person traveling to the United States to marry a U.S. citizen with the intention of returning to his/her place of permanent residence abroad may apply for a visitor (B-2) visa, or if eligible, travel visa free under the Visa Waiver Program.[4][5]
