Maggio+Kattar

K-1 visas are temporary visas available for foreign nationals to enter the United States for the sole purpose of marrying their U.S. citizen fiancé(e)s.  In order to apply for a fiancée visa, the U.S. citizen must submit a petition and supporting documentation on behalf of the foreign national, demonstrating the bona fide nature of the fiancé(e) relationship, to U.S. Citizenship and Immigration Services (USCIS).  If the petition is approved, the foreign national’s file is then forwarded to the Department of State for additional processing and security checks. Once that process is complete, it is then sent to the relevant U.S. consulate, which sends additional instructions to the foreign national regarding the fiancé(e) visa process and schedules the foreign national for a visa interview.  Should the foreign national be granted the K-1 visa after his or her interview at the consulate, he or she may then travel to the United States.   

Obtaining a K-1 visa allows a foreign national a one-time entry into the United States for the sole purpose of marrying his or her U.S. citizen fiancé(e).  Significantly, most individuals entering the U.S. on a K-1 visa are required to apply for and obtain an employment authorization document (EAD) before they are eligible to work in the U.S. lawfully.  The couple must marry within 90 days of the foreign national’s entry into the United States.  After the lawful marriage, the foreign national may then be eligible to submit an application to adjust status to permanent resident (“green card”) based on his or her marriage to a United States citizen.  Minor children of foreign national fiancé(e)s (under 21 years old) may accompany them to the United States on K-2 visas.  The beneficiaries of K-1 petitions who are lawfully in the U.S. in valid non-immigrant status are ineligible to change to K-1 or K-2 non-immigrant status.  They must depart the U.S. and apply for and obtain a K visa at a U.S. consulate abroad, and then seek admission in K status.  It is important to remember that K-1 and K-2 visa holders can only adjust their status in the United States to that of lawful permanent residence based on the marriage to the U.S. citizen who petitioned for the K-1 and K-2 visas.  If they fail to adjust their status within the three month period of time and later become eligible for permanent residence through another avenue – either family or employment-based – they are ineligible to adjust their status in the U.S. and instead will have to obtain their visas at the appropriate U.S. consulate abroad.   

Most family-based visa petitions are initiated when the sponsoring relative files an immigrant visa petition, also known as a Form I-130, with the appropriate Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Service Center or U.S. Consulate abroad. The date of receipt of this petition by USCIS establishes the “priority date,” or place in line for an immigrant visa. Processing times for these petitions vary from several months or much longer depending on visa availability.  When a petition is approved, and the “priority date” becomes current (i.e. after any applicable waiting line has passed), the sponsored individual may apply for an immigrant visa or, where eligible, apply for adjustment of status to obtain lawful permanent residence in the United States.   An immigrant visa permits the individual to become a legal permanent resident (“green card” holder) after admission to the United States with the immigrant visa. It is important to note that filing an immigrant visa petition for a relative can make it more difficult for the sponsored individual to obtain a tourist, student, or certain other types of temporary visas or it may bring an individual here in the United States without authorization to the attention of the immigration authorities. Additionally, an individual must otherwise be eligible to obtain lawful permanent resident status in the United States or be eligible for a waiver of inadmissibility.  An individual’s admissibility should also be thoroughly assessed before a visa petition is filed.  As such, we recommend that immigration counsel be consulted before a visa petition is filed.