Fiance visa / K1 visa.
To initiate marriage-based consular processing a couple must be legally married, as further described below. In scenarios where the couple is engaged but not yet married, it often makes greater practical sense to pursue a fiance visa (also known as a K1 visa) instead of a marriage visa. Generally, the couple is required to have met in person within the two years prior to commencing the immigration process. Unlike marriage-based petitions, a fiance visa may be initiated only by a U.S. citizen; they are not available to U.S. permanent residents.
Procedure for a fiance visa / K1 visa.
Immigration for fiance visa (K1 visa) follows roughly the same outline as marriage-based visas. The U.S. citizen petitioner starts the process by filing a Form I-129F Petition for Alien Fiancé(e). U.S. permanent residents are not eligible to file such petitions. Fiance visa petitions go through the same initial review by USCIS as the marriage petitions described above. Historically fiance visa petitions are adjudicated in significantly shorter time than marriage-based petitions. At the time of writing adjudication could be expected in two to four months.
Once the fiance visa petition is approved by USCIS the process varies slightly from marriage-based petitions. Instead of being sent first to the National Visa Center (NVC), the fiance visa case is forwarded directly to the appropriate U.S. consulate abroad. This direct line to the consulate may result in significant time savings given the stringent documentation requirements imposed by the NVC. The U.S. consulate will issue a letter to the foreign applicant, advising her of the documentation requirements required in her case. But unlike a marriage visa these documents need not be produced until the applicant appears for her in-person interview at the consulate. While a fiance visa is technically categorized as a non-immigrant (temporary) visa, the application is typically processed by the consular section responsible for immigrant (permanent) visas.
In fiance visa cases, the U.S. petitioner does not file the I-864 financial support contact until after the foreign spouse has entered the United States. Indeed, the consulate is expressly forbidden to require the Form I-864. Instead, the consulate may – and generally does – require submission of the non-binding Form I-134 Affidavit of Support. As with the Form I-864, this document is submitted by the U.S. citizen petitioner, promising to provide financial support for the foreign spouse. Unlike the Form I-864, however, courts have held that the Form I-134 is not an enforceable contract.
Following K1 visa approval at the U.S. consulate – unlike in marriage based cases – the fiance visa process is not complete. After entering the U.S. on the fiance visa, the couple has 90 days in which to be legally married. This 90-day limit is strictly enforced and jurisdictional. If the marriage is timely completed, the foreign spouse then files an I-485 Application to Adjust Status, seeking to acquire status as U.S. permanent resident. At this stage the U.S. petitioner concurrently files the I-864 financial support contract.
The adjustment of status application typically will be set for an interview at a USCIS Field Office, though approval is sometimes given without an interview. The time from filing to interview follows the same timeframe discussed in the next Section, below. Because the fiancé visa does not serve as work authorization, the foreign spouse is required to apply for work authorization concurrently with permanent residence. Work authorization should be issued in three months, and in any event the spouse will be authorized to work once the permanent residency application is approved.
Marriage Broker Regulation Act (IMBRA)
The International Marriage Broker Regulation Act (IMBRA) imposes further requirements on couples who met through a paid facilitator. Passed in order to address violence towards “mail-order brides,” IMBRA imposes strict disclosure requirements both on both international marriage brokers and on the U.S. petitioner who meets a fiancé through such a service. IMBRA exempts both culturally- or religiously-sanctioned matchmaking organizations, as well as dating services that are not geared principally at facilitating international courtship. Additionally, IMBRA imposes criminal background restrictions on the U.S. petitioner. In most family-based immigration contexts, while strict criminal background standards are imposed on the foreign national, the background of the U.S. petitioner is immaterial. In the fiancé context, however, certain crimes by the U.S. petitioner – including documented violence and stalking – must be disclosed and documented. A petitioner with such prior convictions may be required to seek a waiver before the petition may move forward. Finally, IMBRA imposes rules on the number of successive fiancé petitions that U.S. citizen may file without having to seek special permission to petition. In certain scenarios where the U.S. citizen has sponsored multiple foreign fiancés, a subsequently sponsored fiancé will be informed of this history by the State Department.