Overview:

For a U.S. citizen planning to marry a foreign fiance(e), one immigration strategy is to file a Form I-129F, Petition for Alien Fiance(e), with U.S. Citizenship and Immigration Services (USCIS). After the petition is approved, the fiance(e) may apply for a K-1 visa at a U.S. consulate abroad. The fiance(e)'s unmarried children under age 21 may also apply for K-2 visas. The marriage must take place within 90 days of the fiance(e) entering the United States in K-1 status.

Comparing the Fiance(e) Petition with Other Strategies:

The following chart briefly compares the fiance(e) petition with other common immigration law strategies for a U.S. citizen to bring a fiance(e) from abroad to the United States.

The decision about which strategy to use is one one of the most important choices to be made. This chart is a brief summary, and you should discuss this matter thoroughly with your immigration attorney. In addition, please refer to the below discussion of the propriety of entering the U.S. as a visitor after you have made the decision to marry a U.S. citizen.

Timing for these strategies varies widely due to, for example, varying processing times at USCIS Service Centers, varying processing times at U.S. consulates, and, as discussed below, the additional step of processing fiance(e) petitions through the National Visa Center. One reason couples may hire an immigration attorney is to minimize the risk of substantial delay due to submission of insufficient or inaccurate documentation.

Filing the Fiance(e) Petition:

The requirements for the fiance(e) petition are as follows:

• You must be a U.S. citizen.
• You and your fiance(e) must be free to marry. This means that both of you are unmarried, or that any previous marriages have ended through divorce, annulment, or death.
• You must have met with your fiance(e) in person within the two-year period before filing the fiance(e) petition. This requirement can be waived only if meeting your fiance(e) in person would violate long-established customs (e.g., marriages in the beneficiary's country are traditionally arranged by the parents and the prospective bride and groom are forbidden from meeting until the wedding day), or if meeting your fiance(e) would create "extreme hardship" for you. The Administrative Appeals Office has held that ''lack of finances'' or inability to take time off work do not constitute extreme hardship.
• You and your fiance(e) must intend to marry within 90 days of your fiance(e) entering the United States.

You must file the fiance(e) petition with the USCIS Service Center with jurisdiction over your place of residence. The petition packet should include:

National Visa Center Processing

On March 3, 2003, USCIS began sending all approved I-129Fs to the National Visa Center (NVC) in Portsmouth, New Hampshire. Once there, they are sorted and forwarded to the consulates. NVC appears to be doing part of the security check previously done by the Consulate. NVC processing should be complete within 2 to 4 weeks after receiving the petition from USCIS. The NVC will create a case record with the petition information. NVC will then send the petition to the U.S. consulate. The U.S. citizen should receive notification by mail when NVC has sent the petition to the U.S. consulate. The notification letter will provide a unique number for the case. If more than 4 weeks pass since the U.S. citizen has received the approval letter but the NVC notification has still not been received, it is possible to contact the NVC to follow up.

Fiance(e) Visa Application at the Consulate:

An approved fiance(e) visa petition is valid for a period of 4 months, but can be revalidated by a district director or consular officer thereafter any number of times for another 4-month period if the officer finds that the parties are free to marry and intend to marry within 90 days after the fiance(e)'s entry into the United States. However, repeated revalidations may provoke concern about the intentions of the parties. Approval of the visa petition is automatically terminated when the U.S. citizen dies or files a written withdrawal of the petition before the fiance(e) arrives in the United States.

The consular officer will notify the fiance(e) when the approved petition is received at the post, providing the necessary forms and instructions to apply for a K visa. The instructions vary from post-to-post and over time.

Then, the fiance(e) must submit to the post a completed Form DS-230 I (immigrant visa application), Form DS-156 (nonimmigrant visa application), and Form DS-156K (nonimmigrant fiance(e) visa application). Upon receipt of these forms, the consulate should initiate security clearance procedures (including a National Crime Information Center name check). Then a personal interview will be scheduled for the fiance(e) at the post.

In the past, it was commonly possible to save time by requesting that the consulate create a "provisional file" and forward the forms and instructions to the fiance(e) before receiving the approved petition from USCIS. Today, the consulates are less likely to accommodate such requests.

The documents which the fiance(e) must submit vary from post-to-post and over time. The following documents are normally required:

An important function of the immigration attorney is to advise your fiance(e) regarding what documents to bring to the consulate in your particular case and to review those documents for sufficiency. The attorney can also advise your fiance(e) regarding what questions to expect during the interview.

The "grounds of inadmissibility" make some persons ineligible for a visa. For example, applicants who have a communicable disease, or have a dangerous physical or mental disorder; are drug addicts; have committed serious criminal acts, including crimes involving moral turpitude, drug trafficking, and prostitution; are likely to become a public charge; have used fraud or other illegal means to enter the United States; or are ineligible for citizenship, must be refused a visa. The two-year foreign residency requirement for former exchange visitors is also applicable. If found to be ineligible, the consular officer will advise the applicant if the law provides for a waiver.

The following difficulties occur from time-to-time during the consular interview. If the consul finds that the beneficiary's marital history is not consistent with the allegations in the petition, or if the consul otherwise has doubt as to the intentions of the parties to enter into a real marriage, the consul may suspend action and return the petition to the USCIS for further consideration, setting forth his or her findings in an accompanying memorandum. Similarly, if the fiance(e) has a child not named in the fiance(e) petition, the consul may suspend further action and return the visa petition to USCIS for reconsideration. If the petition did not disclose that the fiancee) was pregnant, the consul is authorized to proceed with action on the visa application if the consul receives, in writing or telegram, an acknowledgement from the citizen that the citizen was aware of the pregnancy and wishes to proceed with the marriage. If the pregnant fiancee gives birth to a child before her departure for the United States, the consul is authorized to issue a K-2 visa to the child, if the child is free from a serious mental or physical defect. If the child has such a defect, the consul must ascertain from the citizen whether the citizen is still willing to marry the fiancee and whether the citizen wishes the child to proceed to the United States. When more than one U.S. citizen has an approved petition for the same fiance(e), the consul must suspend action and return all petitions with a covering memorandum to USCIS for further review.

There is no requirement that the citizen attend the consular interview. At most consulates, the U.S. citizen will not be admitted to the building during the interview.

If approved, the K visa will be placed in the fiance(e)'s passport. In addition, the consul will place the supporting documents, including the K visa petition, birth certificate, duplicate Form DS-156, DS-156K, and the medical examination in a sealed envelope. It will be given to the fiance(e) for presentation to the Department of Homeland Security at the port of entry.

Admission to the U.S. at the Port-of-Entry:

The K visa is valid for a maximum period of 6 months, after which it may no longer be used to enter the U.S. The visa does not guarantee admission to the U.S. The visa only authorizes the fiance(e) to appear at the port-of-entry to request admission in K status. The Department of Homeland Security inspector at the port-of-entry makes the decision as to whether to admit the fiance(e). The inspection is usually brief but is some cases may include a review of whether the fiance(e) meets each requirement for K status.

After arriving in the United States, your fiance(e) will be eligible to apply for a work permit. (Depending on local Department of Homeland Security procedures, you may or may not be able to process the work permit within the 90-day time limit for your marriage to take place.) Follow local procedures to file the Form I-765, Application for Employment Authorization. When your fiance(e) applies for adjustment to permanent resident status after the marriage, your fiance(e) must re-apply for a new work permit in connection with the adjustment of status application.

Your fiance(e) may enter the United States only one time with a fiance(e) visa. If your fiance(e) leaves the country before you are married, your fiance(e) may not be allowed back into the United States without a new visa, which it could be time consuming to apply for. The new visa would be valid only for the balance of the 90-day period following the beneficiary's admission to the United States. Moreover, the marriage must still take place within 90 days from the date of the original admission to the United States in K status. Instead of seeking a second K visa, usually the best strategy is for your fiance(e) to apply for adjustment of status and, on that basis, apply for "advance parole" (permission to travel abroad while the adjustment application is pending).

Adjustment to Permanent Resident Status:

Not only the marriage but also the filing of the adjustment of status application with USCIS should occur within 90 days of admission. See BCIS Operations Instruction OI 214.2(k)(5).

A second medical examination is not necessary for the adjustment application if the fiance(e) completed one at the time of the application for a K visa, and if the examination happened within one year of the adjustment application filing.

A K-1 fiance(e) may not obtain an extension of the 90-day original nonimmigrant admission. A K-1 fiance(e) is not eligible to change to another nonimmigrant status. If the marriage does not take place within 90 days or the fiance(e) marries someone other than sponsoring citizen, then the fiance(e) will be required to leave the United States. Otherwise, the fiance(e) becomes subject to removal (deportation). A K-1 fiance(e) is not eligible to adjust to permanent resident status other than through marriage to the U.S. citizen sponsor, except that it may be possible for a battered spouse to self-petition for permanent residence.

Penalties for Marriage Fraud or Submitting False Information:

• Title 8, United States Code, Section 1325 states that any individual who knowingly enters into a marriage contract for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than five years, or fined not more than $250,000, or both.
• Title 18, United States Code, Section 100 states that whoever willfully and knowingly falsifies a material fact, makes a false statement, or makes use of a false document will be fined up to $10,000 or imprisoned up to five years, or both.
• Section 212(a)(6)(C)(i) of the Immigration and Nationality Act states that "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible." This means that a person who has engaged in such fraud or misrepresentation is permanently barred from entering the United States unless a waiver is granted.

Entering the U.S. as a Visitor after the Decision to Marry

Once you have made a decision to marry, it may be difficult for you to enter the U.S. as a visitor (i.e., a B-1 visitor for business, B-2 visitor for pleasure, or under the Visa Waiver Program).

Under the Immigration and Nationality Act, there is a legal presumption that all persons seeking reentry intend to remain in the United States permanently. Therefore, you are only admissible to the United States as a visitor if you can overcome that presumption by proving that you have a nonimmigrant intent. This "intending immigrant problem" accounts for the overwhelming majority of visa denials and cases of denial of admission at the port-of-entry. To determine whether you have the proper nonimmigrant intent, the government may consider factors such as:

• Comparative closeness of family ties in the United States and abroad
• Permanency of domicile, employment, etc. in the home country
• Financial ability to return
• Previous efforts to obtain an immigrant visa

Once you are engaged to a U.S. citizen, it is harder to prove nonimmigrant intent based on these factors.

In addition, visitors are required to have a foreign residence which they have no intention of abandoning. "Residence" is defined as "the place of general abode," a person's "principal, actual dwelling place in fact, without regard to intent." According to the State Department, this requirement does not mean that a visitor must maintain an "independent household." "If the visitor customarily resides in the household of another, that household is the residence in fact." Nor need the residence abroad be the one the alien had in the past. "For example, an alien who has been living in Germany may meet the residence abroad requirement by showing a clear intention to establish a residence in Canada after a temporary visit to the United States." In any case, if it appears to the government that a visitor intends to make their residence in the U.S., the visitor will not be admitted to the U.S. Therefore, once you are engaged to a U.S. citizen, it may be harder to prove you have a foreign residence that you have no intention to abandon.

Besides the risk that you may not be admitted to the U.S., there are other potential pitfalls to seeking entry as a visitor once you are engaged to a U.S. citizen:

• If you attempt to enter the U.S. but are not admitted, the Department of Homeland Security may allow you to "withdraw" your request for admission and go home or may order you "summarily removed." In either case, you may be fingerprinted by the Department of Homeland Security. When the consulate later performs a security check, their may be a "hit" showing that you have been fingerprinted in the past. The consulate may then need to wait 2-3 months for an FBI report, thereby delaying issuance of the K-1 visa. In addition, if you are "summarily removed," you are barred from entering the U.S. for 5 years.
• Even if you succeed in obtaining a visitor's visa or admission to the U.S. as a visitor, you may later face charges that you in fact had a preconceived immigrant intent. As mentioned above, section 212(a)(6)(C)(i) of the Immigration and Nationality Act states that "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible." This means that a person who has engaged in such fraud or misrepresentation is permanently barred from entering the United States or from being granted adjustment of status unless granted a waiver. While many persons have successfully obtained permanent residence after entering the U.S. as visitors with preconceived immigrant intent, a significant percentage of persons have been permanently barred from the U.S. on the account of this activity.

If you do decide to seek admission to the United States after you have decided to marry, it is important that you seek the advice of immigration counsel to minimize the chance of these pitfalls. For example, the attorney can advise you on the evidence to carry that you do not have immigrant intent and are maintaining a foreign residence (e.g., a letter from your employer stating when you are expected to return, apartment lease agreement, bank account statements, evidence of family remaining in your home country). And the attorney can provide you with a letter setting forth the legal grounds supporting your entry.

According to the State Department's Foreign Affairs Manual, there are some legitimate reasons for a fiance(e) of a U.S. citizen to enter the U.S. A fiance(e) coming to U.S. to marry a U.S. citizen may be issued a B-2 visa as a temporary visitor, if it is proven that soon after the marriage the fiance(e) will depart from the U.S. A B-2 visa may also be issued to a person coming to the U.S.: (1) Simply to meet the family of his and/or her fiance(e); (2) To become engaged; (3) To make arrangements for the wedding; or (4) To renew a relationship with the prospective spouse. The person seeking admission to the U.S. bears the burden of proving that they should be admitted and not excluded.