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The K-1 Visa Application and
International Marriage Broker Regulation Act

1. The Procedure of a K-1 visa Application

The length of K-1 visa application time varies from case to case according to its circumstances. Some cases are delayed because the applicant does not follow instructions carefully or supplies incomplete information. It is important to give correct addresses and telephone numbers. In addition, the U.S. Embassy or Consulate may need to get security clearances for the applicant. Security clearances take time. There are three steps that the parties must undertake:

1) The U.S. citizen must file an Form I-129F petition with the USCIS;

2) Once the Form I-129F is approved, the USCIS will notify the American Consulate abroad specified on the petition; 

3) The alien fiancée/fiancé should submits an DS-160 non-immigrant visa application with a completed I-693 medical examination form and other requested documents to the U.S. consulate, for the issuance of the K-1 visa. Normally, an interview will be conducted at the U.S. consulate before the K-1 visa is issued. 

2. The Form I-134 as the Affidavit of Support for K-1 Visa Application

After filing the USCIS Form I-129F for an K-1 fiancée visa, the U.S. citizen should begin to consider to file the form I-134, which is needed once the Form I-129F petition reaches the U.S. embassy in the foreign fiancée's home country.

To prepare the USCIS Form I-134, U.S. citizen should contact the bank or other financial institutions, and request information on their procedures to provide the financial documentation required by the Form I-134. For some cases, people may be surprised that gathering the required bank or other financial documentation from them is not simply an office visit, and may require several weeks for them to mail the requested documents and forms.

3. The Form DS-160 for K Visa Applications

A: U.S. Department of State now uses the form DS-160 for both K1/K2 Visa Applications and K3/K4 Visa Applications. All K visa applicants are required to fill the DS-160 Online Nonimmigrant Visa Application. The DS-160 replaces the following previous forms:

  • DS-156 Electronic Visa Application form (EVAF);

  • DS-156K Nonimmigrant Fiance Visa Application form;

  • DS-230 Application for Immigrant Visa and Alien Registration (parts I and II) for processing K-1 and K-2 nonimmigrant visa (NIV) applications. 

  • Department of State will also no longer accept DS-260 Immigrant Visa Electronic Application forms for K visa applications.

4. Form DS-160 - Online Nonimmigrant Visa Application

The online nonimmigrant visa application form DS-160 is used for temporary travel to U.S., and also for K-1/K-2 and K-3/K-4 visa applications. The form DS-160 should be submitted to the Department of State's website at https://ceac.state.gov/genniv/ . The DS-160 form collects all of the required information, and it can be revised as necessary. The DS-160 form is filled out and submitted online at DOS website, and all submitted data is stored in the Department of State's database.

Based on the information provided in the Form DS-160 and the personal visa interview, the U.S. consular officers can determine an applicant's eligibility for a nonimmigrant visa or a K visa. The important notice for completing the DS-160 includes:

1) The DS-160 form is easy to use, and it has interactive help. The applicant should answer all questions on the DS-160 accurately, otherwise the applicant may have to correct the application, or reschedule a visa interview appointment.

2) The form DS-160 application is the first step in the visa application process. After an applicant submit the form DS-160 online application, he or she needs to contact the U.S. embassy or consulate to confirm whether the applicant needs to be interviewed by a U.S. consular officer, and he or she may need to schedule an interview time.

The form DS-160 will ask the visa applicant to provide the current employment information, and the history of employment in the past five years. In addition to the history of U.S. travel, it will also ask the applicant to provide his or her travel history to all other foreign countries in the past five years, including names, years, and visits. If the visa applicant has relatives in the United States, the applicant should also list relatives in the United States, including those who are U.S. citizens or U.S. permanent residents.

In the form DS-160, there are several questions about past immigration information, or possible criminal violations, and any other inadmissibility issues. If the alien applicant has been denied visas or refused entry to the U.S., the dates and details of those events also need to be provided.

5. The Required Evidence of K-1 Visa Application

The K-1 fiancée visa processing times vary with each individual’s circumstances. Under normal circumstances, it takes 3 to 5 months at the USCIS plus 2 to 3 months at the U.S. Consulates to process the visa. To apply for a K-1 visa, a petition must be submitted by U.S. citizen to the USCIS along with:

1) Letter from the U.S. citizen stating the intention to marry each other;

2) Proof that the U.S. citizen and the alien fiancée/fiancé have met in person within two years of filing the petition (this may be waived for reasons like cultural issues or extreme hardship to the U.S. citizen);

3) Proof that both person are legally able to marry (age for getting married, no divorce pending cases etc);

4) Proof of U.S. citizenship of the petitioner;

5) Birth Certificate of alien fiancée/fiancé;

6) Divorce decree or Death Certificate of any previous spouse.

After the USCIS approves the petition, it will send the petition to the U.S. Consulate abroad, which will issue the K-1 visa. The consulate determines whether the foreign fiancée/fiancé would be eligible to receive an immigrant visa, before approving the K-1 visa.

6. After Obtaining a K-1 Visa

After an alien fiancée/fiancé has obtained a K-1 visa and entered the U.S., she or he must get married to the U.S. citizen who petitioned for him/her within 90 days of admission. After marriage, the alien fiancée/fiancé becomes the spouse. She or he may file an immigration petition and adjustment of status application or immigrant visa application to become a permanent resident.

The minor children of K-1 visa holders will be admitted for a period of time the same as that of their parents, or until the day before such children's 21st birthday or marriage, whichever is shorter. An alien admitted to the U.S. as a K nonimmigrant will be authorized to work after filing an I-765 application with the USCIS. 

The K-1/K-2 holders may enter the U.S. only one time with their K-1/K-2 visas. If they leave the U.S. before marriage, they need to apply for a new visa to come back. After they file the adjustment of status application, they are required to obtain Advance Parole before the trip abroad, in order to avoid abandonment of the adjustment application. 

After the marriage in U.S., the new spouse will initially receive conditional permanent residence status for two years. Conditional permanent residency is granted when the marriage is less than two years old at the time of adjustment to permanent residence status. The permanent resident status will expire in two years from when it was given, unless you successfully petition to have the condition removed. As a new couple, you need to file the Form I-751 during the 90-day period immediately before the second anniversary of the date your alien spouse was granted conditional permanent residence.

7. The Law to Protect International Marriage Victims of Domestic Abuse, and the Documents Needed to Comply with the IMBRA

President George W. Bush signed a bill into law on January 5, 2006 that is aimed at protecting foreign nationals who enter into marriages with U.S. citizens through international marriage brokers. These individuals are typically women, commonly referred to as mail-order brides, although it is now the Internet and certain Internet-based businesses that facilitate many of these arrangements. 

The law, known as the International Marriage Broker Regulation Act of 2005 (IMBRA), was passed as part of the reauthorization of the Violence against Women Act (VAWA). The purpose of such a law is to protect spouses in any abusive relationship, not only women. Even though VAWA refers to women in its title, and women traditionally are more often abused or victimized, the law has always been gender neutral and protects both women and men who are victims of domestic abuse.

As an U.S. citizen petitioner, If you have filed two or more Form I-129F K-1 visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of this petition, you must apply for a waiver. To request a waiver, you must submit a written request with the Form I-129F petition accompanied by documentation of your claim to the waiver.

If you have committed a violent offense against a person, USCIS may not grant such a waiver unless you can demonstrate that extraordinary circumstances exist. The documents needed to comply with the International Marriage Broker Regulation Act in the Form I-129F petition include: 

1) If you have ever been convicted of crimes;

2) If you are seeking a waiver of the filing limitations imposed by IMBRA.

If you have committed a violent offense and seek a waiver, you must attach a signed and dated request for the waiver, together with evidence that extraordinary circumstances exist in your case, i.e., that you were being battered or subjected to extreme cruelty by your spouse, parent, or adult child at the time you committed your violent offense, you were not the primary perpetrator of violence in the relationship.

8. How to Prove a "Bona Fide" Marriage or Relationship for the Immigration Purpose

To obtain a U.S. Lawful Permanent Residence (Green Card) based on marriage, the petitioner has to prove that the marriage is real or "bona fide". This means a marriage in which the two people intend, from the start, to establish a life together as husband and wife.

Although marriage can mean different things to different people, a marriage entered into for the sole purpose of getting the immigrant a U.S. Green Card is clearly not bona fide. It’s called a “sham” or “fraudulent” marriage.

Uncovering sham marriages is a top priority of U.S. Citizenship and Immigration Services (USCIS), which believes that a high number of the marriage-based green card applications it receives are fraudulent. USCIS is well aware that some U.S. citizens accept money to marry a foreign-born person, and some even create illegal, organized services that arrange marriages between U.S. citizens and green card seeking foreign nationals.

The result is that, when it comes to deciding whether a marriage is "bona fide", USCIS will take a hard look, and expect the applicant to provide plenty of solid proof that their marriage is real. Below are some ways that you can prepare to supply the needed proof, including steps you can take far in advance.

    * make your spouse a beneficiary on your retirement account or other accounts that require or allow a payout to a beneficiary upon the holder’s death;

    *  make sure that both spouses are covered under your health insurance policy, if the other spouse doesn't have his or her own insurance;

    *  if you live together, add your spouse to your house deed, mortgage, or apartment lease;

    *  if you live together, add your spouse’s name to your garbage, utility, cable, and other bills;

    * take out a joint credit card;

    *  open a joint bank account;

    *  file joint tax returns;

    *  join a gym or club together.

9. Conditional Residence Green Card and How to Remove the Conditions

If you are a U.S. citizen or Green Card holder, if you have been married less than two years when your alien spouse is granted U.S. permanent resident status, the alien spouse will receive U.S. permanent resident status on a conditional basis.

To remove the conditions on you spouse's residence status in United States, you and your spouse should apply together using USCIS Form I-751, Petition to Remove the Conditions of Residence. You must apply to remove conditional status within the 90-day period before the expiration date on the conditional resident card. If you fail to file during this time, your spouse’s resident status will be terminated and he or she may be subject to removal from the United States.

If your alien spuse has a child in previous marriage and if you are petitioning for a step-child and have not been married to the child’s genetic parent genetic or legal gestational mother for 2 years at the time the child receives permanent residence, the child will be granted conditional permanent resident status also.

Therefore Form I-751 can also be used to remove the conditional basis of permanent residence for the child. If your spouse and child became conditional permanent resident at the same time or within 6 months, the child can be included in your spouse’s petition. If the child became a permanent resident more than 6 months after your spouse, the child will need to file a separate Form I-751.

 


 

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