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1. The Benefits
and Conditions of K-1 Visa
The K-1
fiancée visa is a nonimmigrant visa which allows the
fiancé or fiancée of a U.S. citizen to enter into
the U.S. and get married to the U.S. citizen. The benefits of the K-1
visa include:
1)
The K-1 fiancée visa generally has a shorter processing time
compared to marriage-based immigration visa petitions;
2)
The alien fiancée/fiancé can apply for a work
permit by filing Form I-765 and engage in employment;
3)
The children of alien fiancée/fiancé can
accompany the alien to the U.S. on the K-2 dependent visa, as long as
they are named in the fiancée visa petition.
Until
the marriage takes place, the alien
fiancée/fiancé is
considered a non-immigrant. The fiancée/fiancé
may enter
the United States only one time with a fiancée visa. If the
fiancée/fiancé leaves the country before you are
married,
the fiancée/fiancé may not be allowed back into
the
United States without a new visa.
If the marriage does not take place within 90 days, or the
fiancée/fiancé marries someone other than the
U.S.
citizen filing the petition, the fiancée/fiancé
will be
required to leave the United States. If the
fiancée/fiancé intends to live and work
permanently in
the United States, the fiancée/fiancé should
apply to
become a permanent resident after the marriage. If the
fiancée/fiancé does not intend to become a
permanent
resident after the marriage, the new spouse must leave the country
within the 90-day original non-immigrant admission.
2. The Limitations of K-1 Visa
The K-1 visa expires 90 days after the alien
fiancée/fiancé enters
the United States. Within that period, the alien
fiancée/fiancé must
marry the United States citizen petitioner, or face termination of
her/his status and potential removal from the United States. If the
alien fiancée/fiancé fails to marry the petitioner, the alien
fiancée/fiancé will
not be allowed to adjust his/her status in the United States from K-1
visa to immigrant status.
The
law does not allow non-immigrant aliens to change to K status while
they are in the U.S. It is solely available to those outside the U.S.
for the purpose of family reunification with the U.S. citizens. Further
more, K-1/ K-2 visa holders may not change to any other non-immigrant
status while they are in the U.S. If a person is
temporarily barred from entering into the U.S. for previous violation
of U.S. immigration law, she or he cannot use K-1/K-2 visa to enter
into the U.S.
If
the fiancée/fiancé fails to marry the petitioner,
she or he will not be allowed to adjust his/her status in the United
States from K-1 visa holder to any other immigrant or nonimmigrant
status. This does not mean that she or he would be barred from
acquiring lawful permanent resident status if she or he were in fact
eligible to immigrate based on other grounds, such as qualifying
employment. She or he could only obtain such residency, however, by
applying for an immigrant visa at an appropriate United States
consulate abroad. she or he is also subject to the same grounds of
inadmissibility caused by previous immigration law violations such as
overstay status, etc.
3. The Termination of K-1/K-2 Status
The
K-1/K-2 status will be terminated when the alien
fiancée/fiancé marries someone other than the
U.S. citizen who petitioned for her/him, and K-1/K-2 nonimmigrants are
required to leave the U.S. if the anticipated marriage does not take
place within 90 days.
Besides the 2-year limit for the status, K-1/K-2 nonimmigrant status
will be terminated 30 days after the denial of one of the following:
The
K-2 status will also be terminated when the alien turns 21 years of age
or is married.
4. Children Who Are about to Reach 21 Years
Old
If
you have children who intend to immigrate with you to the United
States, if any of your children will turn 21 within 60 days, please
notify the U. S. embassy or consulate
immediately. If visa will be
available in your category prior to your son or daughter's birthday,
your case will receive expedited processing in order to ensure that
your son or daughter will be able to immigrate with you.
Failure
to notify the U. S. embassy or consulate that you have a child who will
turn 21 could result in that child being above the legal age at the
time your visa is issued. In that event, you will be required to file a
separate petition for your child after you immigrate, and your son or
daughter will face a waiting period before he or she will be eligible
for visa processing.
5.
The Adjustment of Status in U.S. for K-2 Child before the Age of 21
The
Immigration and Nationality Act defines a child as an unmarried person
under twenty-one years of age. Generally, a K-2 child can seek
adjustment of status as the minor child of a K-1 parent. Therefore, if
the K-2 child adjusts status based on the K-1 parent's s adjustment,
then the K-2 child can only adjust status prior to his or her 21st
birthday. Several issues may impact a K-2 child's ability to seek
adjustment beyond the age of 21.
The child must still be under 21 at the time to begin the Form I-485
application process, although turning 21 once the application is
pending should not cause the child to lose the eligibility as a
"child". If the child will attain the age of 21 years while the Form
I-485 application is pending, the child may be covered under the Child
Status Protection Act (CSPA)
Nonetheless, K-2 visa holders should make sure they apply for
adjustment of status, with or after their K-1 visa holding parent,
within the 90-day validity period of their K-2 visa. This is because,
even though K-1 visa holders can still easily apply for adjustment of
status after the expiration of their I-94, this option seems more
limited for K-2 visa holders.
6.
Limited CSPA Coverage for K-2 Child before 21 Birthday
A
K-2 child does not generally have a Form I-130 petition for alien
relative filed by the U.S. citizen, which is required in order for
Child Status Protection Act (CSPA) provisions to be applicable.
Therefore, a K-2 child cannot utilize the CSPA when seeking to adjust
status. Thus, a K-2 child may only seek Form I-485 adjustment before
reaching the 21st birthday, and must adjust prior to his/her 21st
birthday.
U.S. Citizenship and Immigration Services (USCIS) may accept a Form
I-130 application filed by the U.S. citizen based on a parent-child
relationship between the U.S. citizen and the K-2 child. For example,
when the U.S. citizen has married the K-1 alien, and the K-2 child was
not yet 18 years old at that time. In this situation, the K-2 child is
considered the step-child of the U.S. citizen under the law. This will
allow an alien child who once was in a K-2 status to adjust on the
basis of being an immediate relative of a U.S. citizen, and allow the
K-2 child to utilize the Child Status Protection Act (CSPA) when
seeking adjustment of status - not age out while the Form I-485
application is pending. Exercising this CSPA option will require:
* An existing parent-child relationship
between the U.S. citizen petitioner and the K-2 child;
* Filing of Form I-130 prior to the K-2 child's 21st birthday;
* Submitting all required documentation and paying the required fees
associated with Forms I-130 and I-485.
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