In order to facilitate marriages between a U.S. Citizen and his or her foreign national non-citizen fiance, US immigration law provides a type of nonimmigrant visa as a legal vehicle through which a foreign fiance can lawfully enter the United States in order to marry their intended US Citizen spouse. This visa is called a K-1 Visa and is commonly known as a “Fiancé visa”.
There are several benefits that come with a K-1/Fiancé visa. To understand it’s full benefits and how to apply, call Tucker, Nong and Associates or use our online form. Our experienced Fiancé visa lawyer can help you understand your options and make sure the filing process goes quickly and is error free.
Requirements for K-1 Visa Eligibility
In order to qualify for a K-1 Visa, the couple must have met in the past two years, although the requirement can be waived if the couple can provide evidence that one or both come from a country or practice a religion in which meeting one’s spouse prior to marriage is not customary or allowed. The couple must also intend to marry within 90 days of the foreign fiance’s entry into the United States. One of the intended spouses must also be an American citizen. Additionally, both must be legally allowed to marry. If one or both have been previously married, they must be able to show proof that the marriage was ended through a completed divorce, annulment or death of the prior spouse at the time of application.
K-1 Visas for Same-Sex Couples
If a person wishes to travel to the United States in order to marry their same sex partner, they are now able to do so following the United States Supreme Court’s recent decision in which it declared unconstitutional a part of the Defense of Marriage Act. In order for a foreign same-sex fiance to qualify for a K-1 visa, the US citizen fiance must either live in a state which recognizes and allows same-sex marriages, or the couple should plan to marry in a state which does.
There are currently 32 states in which same-sex marriage is now legal (as of 10/2014)l. Some states have legal same-sex marriage through popular vote, others by court decisions and still others through legislative action. In any case, even if it is necessary to marry in one of those states, K-1 Visa recipients do not have to intend to continue residing in the marriage state following the marriage.
K-1 Visas for Couples Related by Blood
All US states have their own individual laws regarding the degree of allowable relation between people who intend to marry. For people who are related to one another but who wish to marry in the United States, they will need to research the laws of the individual states in order to find which state will allow them to marry prior to getting a K-1 Visa. No state allows marriage between siblings, parents and children, grandparent or great-grandparent and grandchild, or with aunts, uncles, nieces or nephews. Some states do allow first cousins to marry, while others do not. If a US citizen and his or her first cousin wish to marry, they will need to determine which states will allow them to do so and plan to marry there.
K-1 Visa Availability for Couples with One Fiance Under Age 18
In most states, both intended spouses must be at least age 18 in order to legally marry in the United States. Some states do allow people to marry when one is younger than 18 with consent of the minor’s parents. In that situation, it is important for the couple to research the state laws and plan to marry in a state which allows an underage person to marry another. Prior to obtaining a K-1 Visa, the underage person will first have to obtain written documentation that they have parental consent for the marriage.
Proving the Legal Ability to Marry when Previously Married
Generally, documents obtained from a local civil court that granted a divorce of a previously-married spouse are easy to obtain and will be recognized by the US government. If the divorce occurred outside of the United States, at least one of the intended spouses must have been a resident of the jurisdiction that granted the divorce at the time it was granted. The country in which the divorce or annulment was obtained must also be one in which it is legally recognized in order for the United States to likewise recognize documentation of it as sufficient proof of the person’s legal ability to marry.
Qualifying as a US Citizen
There are several ways in which one intended spouse may have the US Citizenship required for granting a K-1 Visa to the other. The most obvious is that the person was born in the United States or in a U.S. territory such as Puerto Rico or Guam. The second way in which one fiance can be a U.S. citizen is that they acquired citizenship through their relationship with other people. A common example is a person who was born to at least one U.S. citizen parent in a foreign country.
Lawful Permanent Resident Status
Another example is a child who is a lawful permanent resident when their parent becomes a U.S. citizen and obtain citizenship through their parent’s change in status. Finally, a U.S. citizen can be someone who obtained citizenship by going through the naturalization process. Unfortunately, if the U.S. intended spouse is a lawful permanent resident, a K-1 visa is not available to the foreign national spouse. A couple in that case must marry elsewhere and then, following the marriage, the resident spouse may apply for a green card for his or her spouse based on the marriage.
Traveling on a K-1 Visa
A K-1 Visa provides a method for a foreign fiance of a U.S. citizen to be able to travel to the United States for purposes of marrying their intended spouse. It is preferable over a tourist visa as in many cases, people’s wishes change regarding residence status. By obtaining a K-1 visa, people can ensure their status is easily convertible to an immigrant status if they later decide to remain in the United States.
How we can help you
People who are intending to marry in cases in which one spouse is a U.S. citizen while the other is a foreign national may wish to consult with an immigration attorney. An immigration attorney may be able to provide advice regarding the documents and application.