• K-1 and K-2 Nonimmigrant Visas
  • October 8, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Introduction
     
    The K nonimmigrant visa category includes the K-1 visa for fiancées of U.S. citizens and the K-2 visa for accompanying minor children. The U.S. citizen and his or her fiancée are required to marry within 90 days of the fiancées admission into the United States with a K-1 visa for the K-1 and any K-2 beneficiaries to be allowed to remain in the United States. Provided that the marriage occurs within 90 days, the K-1 beneficiary and any K-2 beneficiaries should immediately apply for adjustment of status based upon marriage to a U.S. citizen.

    Eligibility Requirements

    In order for a fiancée to be eligible for a K-1 visa, he or she must be seeking to enter the United States solely to conclude a valid marriage with the petitioning U.S. citizen fiancée within 90 days of entry.1 The minor unmarried child (defined as under 21 years of age) of the beneficiary of a K-1 petition is eligible for a K-2 visa whether he or she is accompanying or following to join.2

    The petitioner for a K-1 visa must be a U.S. citizen. Therefore, a lawful permanent resident may not file a petition for a fiancée to be admitted with a K-1 visa. If the U.S. citizen fiancée has been convicted of certain offenses involving the sexual abuse of a child, he or she will be ineligible to be a petitioner unless a waiver is granted by the Department of Homeland Security. Please follow this link to learn about the specific crimes covered and the waivers that may be available.

    Filing Process
     
    The petitioner must file a Form I-129F, Petition for Alien Fiancé(e). The names of any derivative minor children of the fiancée should be included on the Form I-129F if the petitioner is seeking K-2 visas for them.

    In order for the petition to be approved, it must demonstrate the following:
    • That there is a bona fide intention to marry within 90 days of the K-1 beneficiary’s admission;
    • That there are no legal impediments to marriage;
    • That the petitioner and beneficiary have met in person within 2 years of the filing of the Form I-129F
    • That the petitioner provides his or her criminal record as it relates to certain crimes (e.g. domestic violence, child abuse and neglect, sexual assault, certain violent crimes)3
    To learn more about any of these requirements, please follow the links included in the list. It is important to remember that the petitioner and fiancée must demonstrate that the intended marriage is bona fide, that is that the marriage is not being entered into for the purpose of circumventing U.S. immigration laws.

    If the petition is ultimately approved, a Form DS-160 must be filed with the K-1 beneficiary’s U.S. consulate.

    An approved K-1 visa petition is valid for four months from the date of approval, and it may be revalidated by a consular officer any number of times in four-month intervals.4 While this allows the petitioner and the K-1 beneficiary additional time to make arrangements, it is important to note that consular officials may question the intentions of the couple as more time elapses from the approval of the petition.

    Other Challenges for Approval

     
    In addition to not meeting the requirements on the Form I-129F, there are other reasons for which a petition may not be approved.

    In order for the petition to be approved, the K-1 beneficiary must be admissible to the United States.5 Because a K-1 petition is approved with the understanding that the K-1 beneficiary is entering the United States solely to marry the petitioner and then apply for adjustment of status, the only grounds of inadmissibility that may be waived are those that would be waivable of the K-1 beneficiary marries the U.S. citizen.6

    If the petitioner has previously filed K-1 petitions for 2 or more fiancées and the most recent petition was filed within 2 years of the current petition, the petition will generally be denied.7 If the petitioner has had two previous petitions approved and the most recent petition was approved within 10 years of the current petition, the petitioner will have to demonstrate that unusual circumstances weigh in favor of granting a waiver.8

    If the petitioner has a history of violent criminal offenses, the petition will be denied unless a waiver is granted due to “extraordinary circumstances” or because the offenses in question came as a result of the petitioner being subject to battery or extreme cruelty.

    After Admission
     
    Upon admission to the United States with a K-1 or K-2 visa, a beneficiary may obtain employment authorization.9 However, the beneficiary will need a new employment authorization document after marrying the petitioner.

    It is imperative that the K-1 beneficiary marry the petitioner within 90 days of entry. K-1 beneficiaries are ineligible to change status while admitted as a K-1, and may not apply for adjustment of status through any means but through marriage to the petitioner. Once the fiancée is admitted, there is no extension of the 90-day period. The K-1 beneficiary and any K-2 beneficiaries will be removable if the marriage does not occur within 90 days.

    Upon marrying, the K-1 should immediately apply for adjustment of status in order to obtain conditional permanent resident status. K-2 beneficiaries should adjust along with the K-1 principal.

    Advice
     
    Couples considering a K-1 fiancée visa should consult with an experienced immigration attorney for help in ensuring that the Form I-129F is properly filed with all of the necessary documentation. While many cases may be relatively straightforward, there are factors that can make the K-1 petitioning process complicated. After approval, the couple must make sure to marry within 90 days. An experienced immigration attorney will be able to provide sound counsel to the couple both in applying for adjustment of status and subsequently in applying to have the conditions removed from the spouse’s permanent resident status.
    1. INA § 101(a)(15)(K)(i)
    2. INA § 101(a)(15)(K)(iii)
    3. INA § 214(d)(1)
    4. 9 FAM 41.82 N6.2
    5. 22 C.F.R. § 41.81(d)
    6. INA § 212(a)(9)(A)(i), § 212(a)(9)(A)(ii), 212(a)(9)(B)(v), § 212(d)(11), § 212(d)(12), § 212(g), § 212(i) [includes the 3-year bar of inadmissibility, prior removal for inadmissibility, and prior deportation]
    7. INA § 214(d)(2)(a)
    8. INA § 214(r)(4)(B)(i); Memo, Aytes, Assoc. Dir. Domestic Operations, USCIS, HQOPRD 70/6.2.11 (July 21, 2006) at 2-3
    9. 8 C.F.R. § 274a.12(a)(6)