16 Nov Immigrating as A Fiancé(e)
By Attorney Devin M. Connolly & Nancy E. Miller
It is nearly a universal dream to be happily married. To be with the person that you consider to be your soul mate, the person with whom you can share life’s joys and happy moments. Though this dream is not limited to U.S. citizens, what is limited to U.S. citizens is the ability to file a petition for their fiancé(e) to join them in the U.S. This ability is extremely important because, as anybody who has been in a long-distance relationship can tell you, telephone calls and text messages are just not the same as seeing your significant other on a daily basis.
It is commonly known that both U.S. citizens and lawful permanent residents (green card holders) can petition for their spouses to join them in the U.S. But if there is not a legal marriage between the parties, green card holders are unable to petition their significant other. And no, neither the duration of the relationship nor the strength of the commitment is relevant. Only U.S. citizens may file petitions for a fiancé(e)! This petition is filed with the U.S. Citizenship and Immigration Service (USCIS). Once approved, it may lead to the issuance of a fiancé(e) visa, commonly referred to as a K-1 visa.
There are several requirements that must be met by the U.S. citizen petitioner and his or her fiancé(e). The U.S. citizen petitioner and his or her fiancé(e) must intend to marry within 90 days of the foreign national’s entry to the U.S. This intention must be sincere; it is not permissible for a person to enter the U.S. simply to decide whether they actually want to marry their petitioner. There also must not be any legal impediments to marriage. This includes the requirement that any and all prior marriages have been legally terminated through divorce, death or annulment.
In addition, the U.S. citizen petitioner and his or her fiancé(e) must have met, in person, at least once in the two-year period preceding the filing of the petition. There are exceptions to this requirement if an in-person meeting would violate strict and long-established customs of either party’s foreign culture or social practice, or if the in-person meeting requirement would result in extreme hardship to the U.S. citizen petitioner. The mere inconvenience to have to travel to a foreign country, or to take time off from work or purchase an expensive airline ticket will not qualify you for an exception to the in-person meeting requirement.
After the USCIS approves the petition, the foreign national must apply for the fiancé(e) visa. Following submission of the application and required supporting documents, the fiancé(e) will be required to appear for a personal interview at the U.S. Embassy in their home country. At this interview, they will be questioned extensively by a Consular Officer who must be convinced that the relationship is not one that has been entered into solely to obtain immigration benefits. To assist in that determination, the Consular Officer will need to see documentary evidence of the true, actual relationship. The inability to submit sufficient proof or correctly answer questions may lead the Consular Officer to deny the application for a fiancé(e) visa if they believe that the application was being submitted solely to avoid immigration requirements and enter the U.S. .
Following the foreign national’s entry into the U.S., they must marry their petitioner within 90 days of entry. It does not matter if this marriage is before many friends and family members or a small civil ceremony, so long as it occurs within 90 days of entry to the U.S. After this timely marriage, the foreign national may then proceed to file an application for a green card. Yes, that entails more applications, more documents, and likely a second interview, but the process should hopefully be more enjoyable since now you are able to go through it while living in the same house as your beloved spouse.
Finally, a fiancé(e) of a U.S. citizen may also be eligible to bring their children with them to the U.S. The children will only be allowed to enter the U.S. if they are unmarried and under 21-years-old.
Immigrating to the U.S. with a fiancé(e) visa can be complex. There are some unique aspects to K-1 visas about which many people are unfortunately not aware. Be sure to consult with an experienced and knowledgeable immigration attorney so that you can be reunited with your significant other as soon as possible.