By Maud Poudat | US Immigration Attorney
Posted: November 5, 2018
In this case, the K-1 fiancé visa would be your best next step moving forward. It is a nonimmigrant visa that allows the prospective resident spouse abroad to obtain permission to marry his or her American fiancé (e) in the United States within 90 days, and then immigrate to the United States through legal permanent resident status.
The visa must be granted in the country where the future spouse lives. Once the visa has been obtained, and the marriage contracted, the latter may then make an application for an adjustment of status in order to obtain permanent residence through the American spouse. Overall, the applicant will have to fulfill the necessary eligibility criteria for this immigrant visa.
If you intend to marry an American citizen and you arrive without the visa that gives you permission to marry for migratory purposes, you will be liable for “visa fraud”. You would have indeed returned with another visa that did not have the same objective (for example, such as if you came under a tourist visa); and as border control is becoming more and more uncompromising, USCIS will have concluded that you hid your real intention to come to the United States. In the end, the risk for expulsion and a ban in returning may last for many years.
As a first step, the U.S. citizen will have to submit an application to USCIS (Petition for Alien Fiancé (e) form I-129F) in order to recognize the foreigner as being his or her fiancé (e). The future spouses must comply with the laws of the U.S. regarding marriage from the time the petition is filed until the day of the marriage. The couple will have to prove that they are able to marry, as well as their intention to marry within 90 days after the arrival of the foreign fiancé(e).
Please be aware that the approval of the I-129F Form does not guarantee the issuance of a K-1 visa. This must first be approved by USCIS, who then transmits such form to the National Visa Center. After this process, the U.S. citizen will be notified of the status of his/her application and his/her fiancé (e) may then apply for the K-1 visa.
The U.S. Department of State (DOS) will check the history of the future spouse. The fiancé (e) will have to take their fingerprints, a medical examination and attend an interview (at the U.S. Embassy or Consulate of his/her home country with the purpose of verifying the authenticity of the relationship). Overall, the foreign fiancé (e) and the American citizen must have met for a minimum duration of two years. However, the facts are often appreciated on a case-by-case basis by the agent following the documents and evidence that you will present in your file as advised by your attorney.
Certain conditions and activities may also render the applicant ineligible. It is therefore important to build an elaborate and well-documented file, because any error or missing information could delay the process.
Once the K-1 visa is granted and the marriage completed, the visa holder may apply for permanent residence (green card) by requesting an adjustment of status (via Form I-485). USCIS will re-check the background of the newlyweds and another interview will be scheduled.
We emphasize the importance of seeking advice from a legal specialist regarding the details and implications of your file, especially due to the increased rigidness on behalf of the immigration officials processing such cases.
Attorney Maud Poudat, specialized in Immigration Law, is able to advise you and determine the best possible approach for your personal situation. You can contact us directly at (01) 407-674-6968 from Monday to Friday between 9 am and 5 pm (EST) to arrange an appointment.