IN previous editions of this article, the process of obtaining permanent residence through marriage was explored. Discussion of that procedure began with the supposition that the couple was married, and continued with the various steps to ultimately gain permanent residence. In many cases, however, a problem exists in even getting to the point at which a couple is married. Often, a foreign national is in his/her home country and, for one reason or another, the U.S. citizen cannot travel to that country to marry him/her. A solution in such a scenario can be found with the K-1 Fiance(e) Visa.
A K-1 visa allows a foreign national to come to the United States to marry a United States citizen. The K-1 visa is valid for ninety (90) days after entry to the United States, during which time the marriage must take place. Once the foreign national is issued a K-1 visa, any of his/her unmarried children under the age of 21 may be issued K-1 visas. Upon arrival in the United States, the foreign national may immediately apply for permission to work. A two-step process is involved to obtain a K-1 visa.
First, the United States citizen (the petitioner) must file Petition for Alien Fiance(e) along with supporting documents with the USCIS. Through the filed petition and documents, the petitioner must demonstrate three things. To begin, it must be shown that the foreign national has a bona fide intent to marry within ninety (90) days after arrival. This is often accomplished by producing evidence that a marriage is going to take place—i.e. wedding announcements, catering contracts, etc. In addition, it must be shown that both parties are unmarried and of legal age. Birth certificates, and if one has been previously married, evidence that the prior marriage has been legally terminated are usually satisfactory to accomplish this. Finally, evidence must be provided to show that the parties have physically met each other within the past two (2) years. The petitioner may submit photos of the couple, plane tickets, hotel receipts, etc. as proof that the couple has met. Exceptions to this third requirement apply in certain circumstances that cannot be explored here due to space limitations of this article. The USCIS may also schedule an interview of the petitioner wherein inquiry will be made on the foregoing issues. Once approved, notice is sent to the petitioner and the file is forwarded to the appropriate consulate abroad.
Second, after the petition is approved, the foreign national can apply for a K-1 visa in his/ her home country. An interview is scheduled where the foreign national must provide certain documents for issuance of the visa. An affidavit of support from the petitioner, proving that the foreign national will not be relying on public assistance upon arrival, in addition to originals of documents mentioned hereinabove, must be presented. Other documents may also be requested by a particular consulate. If all requirements are met, visa issuance will follow. After arrival in the United States and marriage, the foreign national may thereafter begin the process to obtain permanent residence.
The fiance may also bring any children below the age of 21 years old as derivative beneficiary as a K-2 visa. This is another advantage of the fiance visa route. It is not necessary to prove that the marriage to the US Citizen Petitioner occurred prior to the immigrant’s children turning 18 years of age. The K-2 derivative can still adjust to greencard after the K-1 fiance marries the US Citizen even if the marriage occurs after the K-2 derivative reaches the age of 18 as long as they are under 21 years of age.
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Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APLC. This article is not a solicitation.
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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association for 2005. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. Mr. Reyes is a Certified Family Law Specialist. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, APLC is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected]; visit at www.kenreyeslaw.com