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Fiancé Visa (K1) FAQ’s

immigration lawyers

 

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Can I transmit citizenship to my spouse?

No, a United States citizen cannot transmit citizenship to a souse. If your spouse wishes to relocate with you to the United States, he/she will require an immigrant visa. A Lawful Permanent Resident who is married to a U.S. citizen may apply to become a naturalized U.S. citizen after three years residence in the United States.

My American citizen fiancé (e) is sponsoring me for immigration; does it matter where we get married?

If you wish to marry in the United States and take up indefinite residence there after marriage, you require a fiancé (e) visa (k1). If you wish to marry outside the United States and travel to the United States to take up residence, you will require a K3 visa.  The quickest way, usually is through a fiancé visa.  You can also file directly for the Permanent Visa (Green Card), however this would take many months and perhaps a year or more, depending on the Consulate.

Which is quicker to process, an immigrant or a fiancé (e) visa?

The time it takes to process a visa application various with each individual case. However, in general, a fiancé (e) visa application may be slightly quicker than an application for an immigrant visa, as immigrant visa petitions are taking longer to be processed and approved by the Immigration and Naturalization Service in the United States. An alternative is to marry your fiancé (e) abroad and then file a K3 visa.

My spouse was granted conditional resident status; what do we do to have the status removed?

You and your spouse are required to file a petition with the office of the Immigration and Naturalization Service to have the conditional resident status removed. The petition must be filed 90 days before the second anniversary of your spouse being admitted into the United States on an immigrant visa, or adjusting his or her status on marriage, if he/she entered on a fiancé (e) visa.

I have a partner/ common-law spouse who is an U.S. citizen.

U.S. immigration law does not recognize common-law marriages. A U.S. citizen cannot file an immigrant visa petition for a partner in the immediate relative category as the spouse of U.S. citizen, or a fiancé (e) visa petition. You will be required to apply for an immigrant visa either in one of the employment based preference categories or through the Diversity Visa Program, commonly known as the lottery.

My fiancé(e) and I will not marry within 90 days of our arrival. Can he/she still apply for a fiancé (e) visa?

No. If the marriage will not take place within 90 days of the fiancé (e) visa applicant's arrival in the United States, it will not be possible to process an application for a fiancé (e) visa. An immigrant visa will be required. Visa free travel under the Visa Waiver Program or a nonimmigrant visitor or work visa is not appropriate.

Can we apply for the fiancé (e) visa while my fiancé (e) is in the United States.

No. An applicant for a fiancé (e) visa must apply for the fiancé (e) at a U.S. Embassy or Consulate outside the U.S. as he or she is required to enter the United States on the visa.

If I cannot sponsor my fiancé (e) how can he/reside with me in the United States?

Your fiancé (e) will be required to qualify for a visa either in one of the employment based preference categories, or through the Diversity Visa Program commonly known as the lottery.

Can my fiancé (e) work in the United States before we marry?

The USCIS may grant permission for the alien fiancé (e) to take up employment in the United States before the marriage takes place. 

My fiancé (e) is still married; can we apply for a fiancé(e) visa?

The fiancé (e) visa petition cannot be filed until you are both legally free to marry. Therefore, you will be required to wait until your fiancé (e)'s divorce is finalized. However, it is possible to begin the administrative processing of your application. If you have not already returned the completed visa application forms to the Immigrant Visa Unit, you may wish to do so in order for them to begin the processing of your application.

We only wish to travel to the United States to marry. We will return to our country after marriage. Do we still need a fiancé (e) visa?

A person traveling to the United States to marry a U.S. citizen with the intention of returning to his/her place of permanent residence abroad may apply for a visitor (B-2) visa, or if eligible, travel visa free under the Visa Waiver Program. Evidence of a residence abroad to which the B-2 visa holder or visa free traveler intends returning should be carried for presentation to an officer of the Immigration and Naturalization Service at the port of entry.

Can I enter the United States on a fiancé (e) visa, marry and then leave the United States for my honeymoon?

On marriage, you may apply for Advance parole, which will allow you to reenter the United States after a short absence. If you leave the United States without first obtaining permission from them to re-enter the country, you will be required to apply for an immigrant visa in order to return. This could delay your return by many months.

Can I travel to the United States while my application for an immigrant or fiancé (e) visa is being processed?

If you intend taking up permanent residence in the U.S., you are required to wait until the immigrant or fiancé (e) visa is issued. You cannot reside in the U.S. on a tourist visa or visa free under the Visa Waiver Program while waiting the issuance of an immigrant or fiancé (e) visa. However, if you wish to make a temporary visit at the end of which you will return to your permanent residence outside the United States, you may travel on a tourist (B-2) visa, or visa free under the Visa Waiver Program, if qualified.
If applying for a B-2 visa, you are required to furnish evidence of your residence outside the United States to which you intend returning at the end of your temporary stay. Although a pending immigrant or fiancé (e) visa application is not necessarily conclusive evidence of intent to abandon your foreign residence, it is a factor considered by consular officers reviewing a visa application. If you are unable to convince the consular officer reviewing the application that you do not intend abandoning your residence, you will not be issued a visa.
When traveling to the U.S. either with a visa or visa free under the Visa Waiver Program, you should be sure to carry with you for presentation to U.S. immigration evidence of your residence outside the U.S. If the immigration inspector is not convinced that you are a bona fide visitor for pleasure, you will be denied entry into the United States.

I am interested in filing a visa petition for my fiancée in order that she can enter the U.S., marry me, and get her Green Card.  Originally I met her in 2005 when I was a student in Rio de Janeiro and the last time I actually saw her was in 2009 when I moved to the U.S.  We maintained contact every month through letters since our separation.  Do you believe that I will succeed?

You will not succeed.  The immigration regulations require that the petitioner and beneficiary meet within the last two years. The Immigration Service generally follows this rule to the letter.  Under certain conditions, however, which display an exceptional circumstance the District Director may waiver this requirement.  In a recent case, the District Director granted a fiancée visa (K) where the petitioner and beneficiary NEVER MET.  In making a determination that exceptional circumstances existed the Director considered that the petitioner could not return to Chile without serious threats to his personal safety, the parties have been corresponding for four (4) years, the petitioner had personally met other members of the family, and the petitioners brother is married to the beneficiary's sister.   Unless you believe that the reason you have not been able to meet your fiancée in the last two years is as exceptional as this case you would be wise to take a quick rip to Brazil before filing your application.

What do you do if the fiancée visa is denied? Can the Visa Services in Washington help?

Visa Services does not exercise authority to change consular officers’ decision on visa applications, but they can assist in finding out the status of an application. They can also suggest several different methods for getting the information addresses for letters, telexes, faxes, and, in emergency situations, cables. If you have some facts on an individual case, they can frequently explain the legal grounds for refusal and any possible avenues of relief, for example. You should know that a senior consular officer reviews all denials. There is no "appeal" process per se on visa denials, but an applicant can reapply for a nonimmigrant visa if he/she can present new evidence to overcome the previous grounds for refusal. Some high-volume posts require that a significant period of time (six months to one year) elapse before reapplication with new qualifying evidence.

What is the procedure after entry into the United States?


Your alien fiancée (e) may apply for conditional permanent resident status after you have entered into a valid marriage to each other performed within ninety days of your finance (e)’s entry into the United States. Your new spouse should apply promptly to the Immigration and Naturalization Service for adjustment of status to conditional permanent residence using Form I-485.  An Immediate Relative Kit is Available through our service.  He or she will be a conditional permanent resident for a two-year period, which begins on the date that he or she adjusts to conditional status. The rights, privileges, responsibilities and duties that apply to all other permanent residents apply equally to a conditional permanent resident. For example, a conditional permanent resident has the right to apply for naturalization, under certain conditions, to file petitions in behalf of qualifying relatives, or to reside permanently in the United States an immigrant in accordance with the immigration laws. Both you and your conditional permanent resident spouse are required to file a petition, Form I-751, Joint Petition to Remove the Conditional Basis of Alien’s Permanent Resident Status during the ninety-day period immediately before the second anniversary of the date your alien spouse was granted conditional permanent residence. Children who have been admitted as conditional permanent residents may be included in the joint petition to remove conditions.



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Moses Apsan and his staff, based in New York City and Newark, NJ provide exceptional legal services throughout the world, in all aspects of immigration to the United States, including non-immigrant (temporary visas), immigrant visa (Green Card) and deportation defense. In addition Mr. Apsan, has been practicing Bankruptcy law and Divorce laws for over 30 years, He was the President of the Federal Bar Association, New Jersey Chapter (1997-2002). He speaks Portuguese and Spanish..
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