By Daniela A. Hoegerle

Is my fiancé eligible?

A petitioner may be eligible to bring his or her fiancé(e) to the United States on a fiancé(e) visa if the petitioner meets the following requirements:

• He or she is a U.S. citizen;
• He or she and his or her fiancé(e) intend to marry one another within 90 days of his or her fiancé(e)'s admission to the U.S. on a K-1 nonimmigrant visa;
• He or she and his or her fiancé(e) are both legally free to marry (this means they both are legally able to marry in the U.S. and any previous marriages have been legally terminated by divorce, death, or annulment); and
• He or she and his or her fiancé(e) met each other in person at least once within the two-year period before the petitioner files the petition. The petitioner may request a waiver of this in-person meeting requirement if he or she can show that meeting in person would:
  
  • Violate strict and long-established customs of his or her fiancé(e)'s foreign culture or social practice; or
  • Result in extreme hardship to the U.S. citizen petitioner.

How do I bring my fiancé to the US?

The first step to bringing a foreign fiancé(e) to the U.S. is filing the petition to USCIS.

• The petitioner files Form I-129F, Petition for Alien Fiancé(e) according to the form instructions. This form asks USCIS to recognize the relationship between the petitioner and his or her fiancé(e).
• USCIS reviews the Form I-129F and the supporting documentation submitted. They may mail the petitioner a request for evidence if they need additional documentation or information.
• USCIS sends the approved Form I-129F to the DOS National Visa Center (NVC).

The second step to bringing a foreign fiancé(e) to the U.S. is applying for a visa with DOS.

• The NVC forwards the approved Form I-129F to the U.S. Embassy or consulate where the foreign fiancé(e) will apply for a K-1 nonimmigrant visa. 
• The fiancé(e) applies for the K-1 nonimmigrant visa and brings the required forms and documents to the visa interview.
• The DOS consular officer determines whether the fiancé(e) qualifies for the K-1 nonimmigrant visa. If the consular officer grants the K-1 nonimmigrant visa, it is valid for up to 6 months for a single entry.

The third step to bringing a foreign fiancé(e) to the U.S. is inspection at a port of entry by CBP. If DOS issues a K-1 nonimmigrant visa, the foreign fiancé(e) travels to the U.S. and seeks admission at a port of entry while the K-1 nonimmigrant visa is valid. A CBP officer at the port of entry will make the ultimate decision about whether to admit the foreign fiancé(e).

The fourth step is marriage. If the foreign fiancé(e) is admitted as a K-1 nonimmigrant, the petitioner and his or her fiancé(e) have 90 days to marry each other.

The final step is applying for adjustment of status with USCIS. If the petitioner and the fiancé(e) marry within 90 days, the fiancé(e) (now spouse) may apply for a Green Card by filing Form I-485, Application to Register Permanent Residence or Adjust Status. USCIS reviews Form I-485 and the documents the spouse submitted. If they were married for less than two years at the time the Form I-485 is approved, USCIS will grant the spouse conditional permanent resident status and issue a Green Card valid for two years. 

Required documentation

The foreign-citizen fiancé(e) (and eligible children applying for K-2 visas) will be required to bring the following forms and documents to the visa interview:

• Completed Form DS-160, Online Nonimmigrant Visa Application
• A passport valid for travel to the U.S. and with a validity date at least six months beyond the intended period of stay in the U.S.
• Birth certificate
• Divorce or death certificate(s) of any previous spouse(s) for both the foreign fiancé(e) and the U.S. citizen sponsor
• Police certificates from the present country of residence and all countries where the foreign fiancé(e) has lived for six months or more since age 16
• Medical examination
• Evidence of financial support (Form I-134, Affidavit of Support)
• Two passport-style photographs
• Evidence of relationship with the U.S. citizen fiancé(e)
• Payment of fees

Children of fiancé(e)s

If the foreign fiancé(e) has a child who is under 21 years of age and unmarried, the child may be eligible to come to the U.S. on a K-2 nonimmigrant visa. The petitioner must include the names of his or her fiancé(e)'s children on the Form I-129F if they wish to bring them to the U.S. the children must continue to be unmarried and under 21 in order to be admitted to the U.S. as K-2 nonimmigrants. They may travel with the fiancé(e) or later, but they cannot travel to the U.S. before the fiancé(e).

If the petitioner and his or her fiancé(e) married within 90 days of the fiancé(e)'s admission into the U.S., the fiancé(e)'s children who were admitted as K-2 nonimmigrants may also apply for a Green Card by filing Form I-485 with USCIS. However, K-2 nonimmigrant children must remain unmarried in order to be eligible for a Green Card. K-2 nonimmigrant children should apply for a Green Card at the same time or after the fiancé(e).

Permission to work

After being admitted to the U.S. on a K-1 nonimmigrant visa, the fiancé(e) may immediately apply for evidence of work authorization by filing Form I-765, Application for Employment Authorization. In this case, the fiancé(e)'s work authorization is valid for only 90 days after his or her entry into the U.S. As USCIS is taking more than 90 days to approve an EAD, this step is a waste of time and money.

The fiancé(e) may also apply for work authorization at the same time he or she applies for a Green Card. In this case, the fiancé(e) can file Form I-765 together with the Form I-485. The fiancé(e)'s work authorization is valid for one year and may be extended in one-year increments. Note: The validity for work authorizations has recently increased to up to five years.

Failure to marry within 90 days

K-1 and K-2 nonimmigrant status automatically expires after 90 days and cannot be extended. Generally, the fiancé(e) and his or her children must leave the U.S. at the end of the 90 days if they do not marry. If they do not depart, they will be in violation of U.S. immigration law. This may result in removal (deportation) and could affect their future eligibility for U.S. immigration benefits.

However, if the petitioner marries his or her fiancé(e) after the 90 day period, he or she may file a Form I-130, Petition for Alien Relative. Generally, the fiancé(e) may not apply for a Green Card on any other basis besides marriage to the petitioner.

Contact the Law Offices of James D. Eiss today to schedule a consultation regarding filing a petition for a foreign citizen fiancé(e).