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K-1 FIANCÉ VISAS

Technically a non-immigrant visa, though generally considered a "hybrid" visa, the K-1 visa allows a foreign national to enter the United States for a period of ninety (90) days in order to marry the United States Citizen who has petitioned on her behalf.
If the marriage occurs within that ninety (90) day period, the foreign fiancé then becomes eligible to adjust his or her status to conditional permanent resident. Additional petitions must be filed to convert the fiancé to conditional permanent resident status and then, two (2) years later to lift the conditions.
One year after that she is eligible to apply for citizenship. The imposition of "conditional" permanent resident status is not a special negative feature of K-1 visas, nor is the shorter three (3) year waiting period for citizenship eligibility a special favorable feature. Any person who immigrates to the U.S. based upon marriage to a U.S. Citizen is initially placed in conditional status if the marriage has been in existence for less than two (2) years.
Finally, all persons who immigrate to the U.S. based upon marriage to a U.S. Citizen are eligible to apply for citizenship three (3) years after obtaining LPR status rather than the usual five (5) year waiting period.

If the fiancé does not marry the petitioning U.S. Citizen within the allowed ninety (90) day period she must leave the United States. The fiancé may not marry a different U.S. Citizen once she arrives in the U.S.. The fiancé must marry the petitioning U.S. Citizen within ninety (90) days or leave the country.
If she does not leave the country under those circumstances then she is immediately subject to removal (deportation). If the K-1 visa beneficiary is the parent of minor children, his or her minor children will also be allowed to come to the U.S. in K-2 status and convert to permanent residence when their father or mother does, and under the same conditions and limitations.
Probably the single fastest growing area of our practice in recent years has been in assisting U.S. Citizens in obtaining K-1 visas. In years past, K-1 visas were a relatively trouble free "self-help" process, often used by returned U.S. personnel or expatriate American workers who simply wished to get married in the United States near family and friends. Attorneys rarely got involved. However, increased world travel by many Americans, the rapid opening up of the former republics of the Soviet Union and other countries such as Vietnam, and particularly, the emergence of the internet as a means of contact and communication throughout the world has, in our opinion, been responsible for a substantial increase in the number of Americans finding their true life partners abroad.
At the same time, changes in U.S. immigration laws (particularly since the 1996 reforms) have placed new obstacles in the path of those seeking to bring their fiancé to the United States. INS processing times have become slower and the system less forgiving of any errors or omissions. Embassy and Consulate personnel have, properly, become much better trained and more efficient at detecting fraud or problems in an application which may indicate grounds of inadmissibility. Many people are led to believe that simply obtaining an approval from the INS assures approval at the Embassy or Consulate. They are wrong, often tragically wrong. The Consular Officers at U.S. Embassies and Consulates have an independent duty and obligation, which they properly take very seriously, to make a determination as to the eligibility of an applicant for a K-1 visa and to determine if any possible grounds for a denial exist. If the Consular Officer determines that any grounds for a denial exist, they are obligated, perhaps reluctantly, to deny the applicant a visa, notwithstanding the approval from the INS. If the Consular Officer denies an applicant based upon his determination of what the facts about the applicants or their situation are, then, whether the officer is mistaken about the facts or not, the applicant has virtually no right of appeal. High stakes indeed.
Over the past several years, growing anti-immigration sentiment in the United States has produced harsh new grounds of inadmissibility for visa applicants, in many cases for minor technical violations that applicants barely remember or would never, in their wildest dreams, consider a possible grounds for a denial. Nonetheless, many non-legal sites on the internet, continue to treat the K-1 visa process as an undertaking which can be approached with little or no difficulty by the couple. The authors of such advice may well have had an easy time of it with their application. Good for them, they got lucky. Unfortunately, the authors of such uninformed advice have not had the benefit of years of experience and involvement in many cases from which they can form a reasoned opinion about the potential problems in K-1 cases. They are not there to help prepare a couple for dealing with problem issues in their case that will have to be addressed in their interview. They are not there to step in and try to pick up the pieces after a visa denial results from mistakes made by a couple who felt assured that they wouldn't have any problems "doing it themselves". They are not there to identify possible grounds for inadmissibility in advance and to fight for approval of waivers, nor to counsel the couple on viable, and sometimes superior alternatives to the K-1 visa.
With the exception of tragic and compelling refugee cases, there are few things more disturbing to an experienced immigration lawyer than to receive a desperate call for help from someone who's fiancé has just left a consular interview in tears with a denial in hand for a problem, many times minor, that could have been identified and handled legally at an early stage. After the denial, there is often, although not always, nothing that even a very experienced immigration lawyer can do to salvage the situation. The cavalier dispensing of such uninformed legal advice on the net, when the stakes are as high as a couple's future happiness and life together, is both irresponsible and callous.
In our opinion, of all the non-immigrant visas, K-1 visa cases are the ones that most need review by experienced immigration counsel. If we had to pick one type of case that should always receive at least an initial review by an immigration attorney, K-1 visa cases would the one. That does not mean that all K-1 cases need a lawyer to handle them. In many cases, we are able to review a K-1 case in an initial consultation and make a fairly clear determination that there are no potential problems which require legal counsel. In such cases, the attorney's role is usually limited to advising the couple on proper procedures for filing, on evidence and documents required to prevent delays in the case and often, reviewing the completed application before the couple files it to check for errors, omissions or potential "red flag" problems. In other cases, the attorneys role may be limited to assisting the couple in dealing only with a specific, known, identified problem issue. Finally, some cases simply require that an attorney handle them from beginning to end because the stakes and the chances for error are so high.
Are the non-lawyer visa gurus on the internet right about K-1 visas? Do you need the advice of an immigration attorney if you wish to bring your fiancé to the United States? We believe that in all K-1 cases the couple should, at the minimum, have a review of their case performed by counsel before filing their petition with the INS. The principal reason that we feel so strongly about couples obtaining competent immigration advice in K-1 cases is that the stakes are so high and the consequences of a denial, particularly an unnecessary denial, are so harsh. Blow it on the first try and the case may be finished forever. If a couple is prepared to face the consequences of an unnecessary denial, or the separation caused by unnecessary delays, the answer, for them, may be no, they don't need counsel. If the U.S. citizen is prepared to either move to his fiancé's country and try to make a life there or, abandon his relationship with his fiancé, in the event of a denial then the answer may be no, that petitioner does not need counsel. But for couples who genuinely wish to make a life together, with the ability for the alien spouse to travel to, and live in the U.S., then the safest and most logical course of action is to obtain competent counsel and diligently seek to avoid unnecessary and avoidable denials and delays. Experienced immigration counsel cannot, and no ethical counsel would ever, guarantee a favorable outcome when dealing with any U.S. Government agencies, but experienced immigration counsel offers the best opportunity to avoid many of the pitfalls, avoidable mistakes and delays which lay in wait for the unprepared in the K-1 visa process.
Finally, there are alternatives to a K-1 that need to be considered in each case. For example, delayed processing times in some regional offices and Consulates has now actually made it faster to get married, file an I-130 spousal petition and a K-3 petition which will allow the new spouse to come the U.S. while the case is pending. The choice between the K-1 route and the I-130/K-3 route is highly dependent on which country the fiancé resides in. Determining which option is best requires detailed knowledge of the facts of the case, current processing times in various locations and local consular practice. Bear in mind though, that if you elect to go the I-130/K-3 route you will have to marry before you know the outcome of your immigration case. You are therefore committed to the marriage regardless of the outcome of your case if you elect to go the I-130/K-3 route.
If you are considering attempting to obtain a K-1 visa for your fiancé, or are considering marrying and then filing an I-130/K-3 case, we urge you in the strongest possible terms to obtain at least a review of your situation and the facts of your case by qualified counsel, either in our office or in the offices of other qualified immigration attorneys. Do not rely on uninformed attempts at legal advice on the internet from people who don't have to be there when things get rough and unpleasant.
If you have any questions regarding the fiancé visa process, or wish to schedule an appointment for a consultation, please refer to our contact page or our consultation page for contact information. Please contact our office nearest to the country where your fiancé resides.