Fiancé Visas: The Visa of Love

Hanes & Bartels March 5, 2012

When discussing immigration law topics, we all too often focus on the bad news, such as families shattered by deportation, seemingly never-ending wait times, and the bureaucratic nightmare that is the U.S. immigration system. When followed properly, however, U.S. immigration law does provide plenty of opportunity for successes and happy endings.

Take, for example, the Fiancé Visa (also known as the K-1 Visa). This visa is a mechanism provided by the government that allows a U.S. citizen living within the United States to bring his or her non-citizen fiancé into the country for the purpose of getting married.

For example, suppose that Nick, a U.S. citizen, travels to Costa Rica for an extended vacation. One day while sipping an exotic beverage from a hollowed-out coconut – complete with miniature umbrella – Nick fixes his gaze on Rita, a Costa Rican national who turns out to be the girl of his dreams. After several months of long distance calls, emails, Skype (no one writes love letters anymore) and using up all of his frequent flier miles, the two decide they want to tie the knot and raise a family in an American suburb.

Once Nick and Rita are married, Nick will be able to submit a petition to the United States Citizenship and Immigration Services (USCIS) to adjust Rita’s U.S. immigration status to that of a permanent resident. However, that can only happen after the two are married, and even then, the marriage petition process can take months. What if Rita wants to enter to U.S. to participate in the wedding ceremony itself?

With the Fiancé Visa, Rita can enter the U.S. for the marriage. The requirements for the Fiancé Visa are as follows:

• The party petitioning for his or her fiancé must be a U.S. citizen;• The couple must intend to marry within 90 days of the foreign national fiancé entering the United States;• Any prior marriages of either party must have been legally terminated; and• The two fiancés must have actually met each other, face to face, at least once during the two years leading up to the filing of the visa application. (There are a few limited exceptions to this last requirement.)

It is important to note that once the visa has been admitted and processed and the fiancé has successfully entered the U.S., the couple must be married within 90 days. Otherwise, the visa will become invalid and the foreign national fiancé must return to his or her country. The visa cannot be extended.

Once the couple does marry, however, the foreign national spouse can apply for permanent residence and remain in the U.S. while the petition is processed. He or she can also apply for a temporary work permit while waiting for the petition.

If the foreign national spouse has children who are under 21 and unmarried, he or she may include them on the application for the Fiancé Visa. If granted, the USCIS will issue K-2 visas for the children.

As with many immigration categories, I have found that there are many misconceptions concerning the Fiancé Visa. For example, if a U.S. citizen plans to marry an immigrant who entered the United States legally prior to the couple making marriage plans (such as on a student, visitor, or other type of visa), the foreign national does not have to return to his or her home country and then re-enter the U.S. on a Fiancé Visa. However, be very careful with using any visa other than the Fiancé Visa to enter the U.S. when the purpose of the trip is to get married. If the USCIS determines that the foreign national misrepresented the purpose of his or her trip on the visa application, the immigrant can be accused of fraud, which could prevent not only obtaining a Green Card based on the marriage, but could also mean potential deportation and denial of any future immigration benefits.

While both the Fiancé Visa and the permanent residency through marriage can provide great immigration benefits, they can be quite complicated and require attention to significant detail. Anyone considering taking such steps should seriously consider speaking with a qualified immigration attorney.