K-1 visa
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A K-1 visa is a United States visa granted to fiancés and fiancées of US citizen sponsors. The application is filed on a USCIS form I-129F by the sponsor on behalf of the fiancé(e), who will then be interviewed at a US consulate abroad[link]. If the visa is granted, the fiancé(e) then has 6 months in which to "apply for entry" (which is done at the US airport) to enter the US one time only for the purpose of marrying the US citizen sponsor within 90 days of entry. The fiance can also apply for visas for children to enter at the same time.
- Legal warning: laws and interpretations can and do change often; they are complex and vary by case. No encyclopedia article can replace trained professional advice and judgement, so use the article accordingly.
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 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 fiancée to openly enter the US with the intention of marrying a US citizen.Visas fall roughly into two classifications, temporary (for visitors, employees, and missionaries, for example), and immigration (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 temporary visa, since the permanent visa is not applied for until already in the USA. Because of the intention to stay, however, much higher scrutiny is used than for a typcial temporary visa.
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 fiance of their (mutual) choosing, no matter what the citizenship (national origin, race, but not sex) of the fianc(e)é. 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 consitutional rights only if they have a "damn good reason" (to quote US Supreme Court justices in more than one famous decision), or, in other words, an overriding concern that affects the rights of other citizens. And the USA has come up with a large list of those reasons: national safety, the national interest to be free from subversive interests (who would take over the government) and many types of crime (including prostitution), and protection from burdening the welfare system. It is also a national concern to protect US citizens, and the country at large, from fiancés who would marry only citizenship rights (and not for love). A large amount of mutual fraud has also historically occurred between the fiances to marry without true intent to be married, which the country has a right to protect itself against. Thus, there are many potential reasons for denial.Problems with K1 visas
In a time of great controversy over foreign residents (11,000,000 of them illegal in 2005), the legal visa process is considered underfunded and disorganized (often called dysfunctional in recent articles (May 2006). It can take 1 to 3 months to get initial approval, and another 1 to 3 months to get the visa, which is all considered an improvement over the old-style spouse (family) visas. While the USCIS and consulates are well organized in many aspects, this "underfunding" also creates a culture of fear and decisions by internal policies, rules, and perceptions, rather than law. For example, the law says that the sponsor must prove current income with documentation such as check stubs, or a letter from the employer, with tax returns for self-employed individuals; however, internal policies have developed (through a myriad of legal interpretations, decisions, and internal procedure-making along with decisions of individual agents) to require 3 years of tax returns (which may or may not be documented or consistent in instructions to the applicant). While it is possible to appeal such decisions based upon constitutional law or immigration law, it may be easier to just get a co-sponsor who has three years of the required current income. Thus, the system is full of surprises and new delays and appointments. These delays can sometimes be greatly reduced (and risks also subtantially reduced) by hiring an immigration lawyer, with typical fees (2005) around $1000 for the application and $1000 for the interview. Some advertise success rates as high as 100% (delays included) for clients who they pre-screen for eligibility.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 fiance(é) is not eligible for permanent residency.
Some fiance(és) 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 fiance(é) 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 may leave the country without repurcussions. 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 permanent visa granted; but in many cases the foreigner is 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.
External links
- [US State Department guidance on Fiancé immigration]
- [USCIS guidance on bringing a Fiancé to the United States]
- [link] K-1 Visa
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