Are you eligible for a fiancée (K-1) visa?

The most important step of the fiancé(e) visa process happens before you start preparing any forms. This all-important step is determining whether you are legally eligible to get a fiancé(e) visa in the first place. In this chapter, we walk through each of the legal requirements in detail. Please read this chapter carefully!

1 – Engaged to a U.S. citizen.

To qualify for a fiancé(e) visa, the foreign national must be engaged to marry a United States citizen. There is no requirement that this engagement be formalized in any particular way. For example, you do not need to have a ring or have set a wedding date. To qualify for a fiancé(e) visa, the person’s only goal in coming to the United States must be to marry the U.S. citizen. For example, the person cannot be seeking the visa for the purpose of accepting a job offer by a U.S. company. The couple must also be planning to marry within 90 days of the foreign national’s arrival in the United States. We will talk more about this requirement when it comes to documenting your Form I-129F packet, since you need to include a declaration specifically explaining the intent to marry within 90 days. It’s an easy requirement to meet, but often overlooked.

Only citizens can file a Form I-129F. A major difference between marriage-based visas and fiancé(e) visas is that you must be a citizen to file a fiancé(e) petition. By contrast, a lawful permanent resident (green card holder) is eligible to pursue a marriage-based visa for a spouse. Why? Because that is the way the statute is written. There are no exceptions. What does this mean if you are a green card holder? You basically have two options. Option number one is to get married to your fiancé(e), then File a Form I-130 to start the marriage visa process. When couples do this, they often get legally married abroad, then have a formal marriage ceremony with friends and family after the foreign spouse arrives in the United States. Option number two is for the green card holder to naturalize as a U.S. citizen before starting the visa process. Depending on the couple’s desired timeline this can sometime makes sense. Naturalization often takes between four months and one year, so that is a lengthy waiting period before the visa process can even be started. And on top of that, the resident typically must have been a green card holder for five years before seeking naturalization. Because of the timeline involved, we typically advise our lawful resident clients to pursue a marriage based visa, rather than waiting to naturalize.

2 – Legally eligible to get married.

The couple will be required to demonstrate that they are legally eligible to get married once the foreign national comes to the United States. In practice, this requirement most often becomes an issue if you or your fiancé(e) were previously married. Any prior marriage must have been legally concluded, such as by divorce or by death of the prior spouse. If the marriage has not been legally concluded, stop! You need to address that issue first before continuing with your fiancé(e) visa process. As explained below, you will need to produce the formal documentation – such as certified divorce decree – to prove that you are eligible to get married. Sometimes getting this documentation can be tricky if the foreign fiancé(e) was previously married. Depending on the country, getting a formal copy of a divorce decree can be time consuming.

3 – Met in person in the past two years.

There is a strict requirement that the couple have met in person within the two years to filing the Form I-129F petition. There is no restriction on how long the couple met in person, or where the meeting took place. For example, we have had clients who fulfilled this requirement by meeting in Thailand, for example, even though that’s not where the foreign fiancé(e) actually lived.

It is important to distinguish between this requirement and the requirement that the couple is genuinely intending to get married. For example, you can fulfill the in-person meeting requirement be meeting for lunch one time. But you still need to convince the immigration agencies that you have a legitimate relationship. For that reason, you are going to need to be able to document how your relationship came to be. All other things being equal, the longer you have spent with your fiancé(e), the better shape you will be in. With that being said, we have many clients whose relationship developed primarily online. We talk more about documenting the relationship below.

Immigration law allows one possible exception if you have not met your fiancé(e) in person. To qualify for this exception, you must prove that it would be an “extreme hardship” to meet in person. Financial hardship almost never qualifies – in other words, you can’t simply argue that traveling abroad is too expensive for you. A classic example of a strong waiver request would be a U.S. citizen with a medical condition that makes travel impossible.

You can also request a waiver of the in-person meeting requirement if such a meeting would violate “strict and long established customs” of the foreign national’s culture. This can be a possibility, for example, in cultures where arranged marriage is the norm. But even in such cultures, the couple often meets in a limited capacity prior to the engagement.

4 – No disqualifying criminal history by U.S. citizen.

The U.S. citizen is permanently ineligible to serve as a Form I-129F petitioner if he committed certain criminal offenses against a minor. The list of these serious crimes comes from the Adam Walsh Child Protection and Safety Act of 2007.

Any of the following conduct falls within the Adam Walsh Act if it involved a minor:

• 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;
• 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 conduct that by its nature is a “sex offense against a minor.” This last category is extremely broad.

If the U.S. citizen has engaged in any of this conduct he cannot serve as a Form I-129F petitioner. The only exception is if he can prove to USCIS that he is zero risk to the fiancé(e) visa applicant. In practice, that is an extraordinarily tough standard to prove. At an absolutely minimum a successful waiver will require a very strong and thorough evaluation from a clinical psychologist with expertise with sexual risk assessment. The leading national organization for such professionals is the Association for the Treatment of Sexual Abusers (www.atsa.com).

5 – International Marriage Broker Regulation Act (IMBRA).

In 2005 Congress created an additional wrinkle for fiancé(e) visa applicants when it passed the International Marriage Broker Regulation Act (IMBRA). Basically, IMBRA imposes three new requirements. First, it requires the immigration agencies to examine the criminal background of the U.S. citizen, not just the foreign national. Second, it imposes requirements on couples who meet through the services of a “marriage broker.” Read this section carefully, since marriage brokers can potentially include many dating websites. Third, IMBRA imposed new regulations on U.S. citizens who have filed multiple fiancé(e) petitions.

Let’s look at each of those three components of IMBRA.

Petitioner’s criminal history.

Congress passed IMBRA out of concern that fiancé(e) visa applicants were being subjected to abuse. In most immigration processes, the U.S. petitioner is not subjected to a criminal background check. Not so with fiancé(e) visas. A Form I-129F petitioner is required to report prior criminal matters.

A waiver is automatically granted if the citizen can show that he was “battered” or “subject to extreme cruelty” at the time he committed the prior crime. In practice, this exception is extremely rare.

Meeting through a “marriage broker.”

IMBRA cracked down on international match-making services, which it terms “marriage brokers.” The new law placed restrictions on those brokers that aren’t important to go into here – such as restrictions on information the brokers can disclose. But IMBRA also put new restrictions on couples who meet through marriage brokers. That’s the part you need to be aware of, since it’s not always obvious if you met through an entity that USCIS considers to be a marriage broker.
Multiple-filer rules. If the U.S. citizen has filed fiancé(e) petitions in the past, this can prevent approval in your case.

Under IMBRA, a fiancé(e) visa can’t be approved if the U.S. citizen (1) filed two or more fiancé(e) petitions in the past and (2) the current petition is filed within two years of the last petition. In other words, did the U.S. citizen file two or more Form I-129F petitions in the past? If so, was the most recent one filed within two years of when you plan to file your current Form I-129F? If the answer is yes, then IMBRA will not allow your fiancé(e) visa to be approved.
If you are subject to this bar, you are allowed to ask USCIS to grant a special exception for you – called a waiver. It is completely within the discretion of USCIS to decide whether or not to grant a waiver to you. In deciding whether to grant a waiver, USCIS will consider the following factors:

• Whether there are unusual circumstances such as the death of a previous beneficiary. So, for example, if the citizen’s former spouses died, that weights in favor of granting the waiver.
• Whether the petitioner has a history of domestic violence.
• Whether the petitioner has a pattern of filing multiple petitions for different beneficiaries at the same time, of filing and withdrawing petitions, or obtaining approvals every few years. Basically, it weighs against the waiver request if it looks like the citizen has been indiscriminately casting about for a foreign spouse.

One additional word about multiple filers. If the U.S. citizen has had two or more Form I-120F petitions previously approved, then the current visa applicant will be notified of that fact. This happens if the past petitions were approved within ten years of the current petition. If this applies, your visa applicant will receive a written notification of the prior visa petitions.

6 – Not subject to any grounds of inadmissibility.

We’ve saved the most complicated eligibility issue for last. Here goes.

U.S. immigration saw sets forth a long (long) list of grounds of inadmissibility. If you have engaged in conduct that fits into any of these categories, then you are inadmissible to – cannot be allowed into – the United States. The State Department will not issue a visa to a person who is inadmissible. And even if they did, Customs and Border Protection would deny entry to someone who is inadmissible.

There are no two ways around it: the grounds of inadmissibility are complicated. I’ve done my best here to break the grounds of inadmissibility into those that come up often, and those that are more obscure. Do not skip over any of this section of the book. You need to look at each ground of inadmissibility separately and be absolutely sure it does not apply to your foreign fiancée.

I have included citations to the Immigration and Nationality Act for each ground of inadmissibility. In case you have concerns about any ground of inadmissibility, this will make it easier for you to conduct additional research or – if needed – consult with a lawyer.