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QUESTIONS YOU MIGHT HAVE

Can I marry my fiancee overseas and still bring her on a K-1 visa?

No. K-1 visas are available only to persons who are planning to be married in the U.S. after receiving the K-1 visa. If the marriage occurs, you will have to file an I-130 Relative Visa petition for your spouse. The one exception to this rule is that if the marriage was religious or social ceremony only, and the marriage isn’t a legal marriage in the country, a K-1 visa may be issued.

My fiancee is in the U.S. on the K-1 visa I obtained for her, but I’m not sure I’m ready to get married. Can I extend my fiancee’s K-1 visa?

No. The K-1 non-immigrant status can neither be extended nor changed. If you don’t get married within 90 days of the K-1 status validity period, your fiancee will have to leave the US. This is a very strict law in US immigration and there are no exceptions. If you are sure you want to get married, but unable to get married due to unforeseen circumstances (fiancee is hospitalized, delay in getting marriage license, etc.), then you can get married after the 90 day period and must file Form I-130 (Petition for Alien Relative), along with Form I-485 (Application to Register Permanent Residence or Adjust Status).

My fiancee was in the U.S. on the K-1 visa, but our relationships didn’t work out at the time and she went back to her home country. We have been in touch since then and now want to start the K-1 process again. Can I still petition for her?

Yes, but if you want to apply again within two years of the first petition’s approval, you will have to file for a waiver of the provisions of the International Marriage Broker Regulation Act of 2005 (IMBRA). Your fiancee must also be prepared to explain to a consular officer why your relationship didn’t work out the first time and why you both are certain that it will lead to marriage the second time. It must not appear to the Embassy that you are using the K-1 visa as a way simply to bring your girlfriend on trips to the U.S. So the case to show “intention to marry” has to be particularly strong.

My income level is too low to qualify as a sponsor under the government’s rules. Is there any way to avoid this requirement?

No. You can’t avoid the sponsorship requirements. However, it’s possible to find a co-sponsor to help with you with this problem. The co-sponsor must be able to meet all the government’s financial and document requirements just as though he or she is the sole sponsor. You must submit all your forms and documents as well, even if they show a low level of income. Alternatively, if you certain liquid assets, you may be able to use assets to meet the income requirements.

When I marry my fiancee while she’s in the U.S. on the K-1 visa, will she have to return home after the marriage?

No. Your wife will not have to leave the U.S. and should not leave the U.S. until she receives travel authorization (advance parole). You will, however, have to apply for adjustment of status to permanent residency for your new wife so that she can lawfully remain in the US.

I sponsored my ex-wife’s K-1 visa for the U.S. and she eventually became a permanent resident. Unfortunately, our marriage didn’t work out and we were divorced. I have recently met a lady outside the U.S. and would like to bring her to America on the K-1 fiancee visa. Can I do this?

Yes, but you may be required to file an IMBRA waiver for multiple filings if your last K-1 was approved within 2-years. If you have a record of violent criminal offenses, you would need to file an IMBRA waiver based on extraordinary circumstances. If you get by these hurdles, you will nonetheless have to convince the Embassy that your previous marriage was not a “sham” marriage. You also must provide documentary proof that your ex-wife either left the U.S. or lawfully adjusted her status to permanent residence.

My fiancee has been denied a B1/B2 visitor visa for the U.S. before. Will that affect our current K-1 visa petition?

In most cases, no. If your fiancee did not misrepresent any material fact during the B1/B2 visa interview, she will still be eligible for a K-1 Visa.How long after the approval of the I-129F petition does my Fiancee wait to get the paperwork?

My fiancee has a valid B1/B2 visitor visa for the US. Is she allowed to come to America while my K-1 visa petition for her is pending with the U.S. immigration authorities?

Yes. She is allowed to enter, but she may face difficulties entering because she has to convince the immigration officials in the airport that she has no intentions to stay in the U.S. permanently. She has to show “dual intent” – to stay for a short period on the current B1/B2 visa even though she intends to eventually stay permanently in the US on the K-1 visa. It’s a tricky situation – especially since many immigration officers falsely assume that the pending K-1 visa prevents B1/B2 entry – but we have helped many people get through this situation successfully.

My fiancee was denied entry to the United States some time ago. An immigration officer at the port-of-entry said that the history of her previous visits showed that she had been spending the most of time in America rather than in her home country. Will that affect our pending K-1 visa petition?

No, it should not. If an officer’s decision was based solely on the fact that your fiancee had used her visa to spend the most of her time in the US, then it won’t substantially impact your K-1 petition.

My fiancee has been to the U.S. as an exchange J-1 student before and is a subject of 2 years home residency requirement. Is there any chance to bring her to the U.S. on a K-1 fiancee visa without waiting until the above requirement is fulfilled?

Yes. However, the chances are very slim indeed as this type of waiver is very difficult to obtain

My fiancee has overstayed her visa before. Is she eligible to come to the U.S. on the K-1 fiancee visa?

It depends. If she overstayed her prior visa by over a year, she is barred from re-entering the U.S. for ten years (although an “extreme hardship” waiver is possible). If she overstayed her prior visa by six months to a year, she is barred from re-entering the U.S. for three years (again, an “extreme hardship” waiver is possible). Shorter overstays will cause less severe problems, and can often be overcome.

I have recently met a lady online, but am unable to travel to her country. Is there anything I can do to avoid this requirement?

Probably not. There is a provision in the law that may exempt you from the meeting requirement “if it is established that compliance would result in extreme hardship to the petitioner or that compliance would violate strict and long-established customs of the K-1 beneficiary’s foreign culture or social practice, as where marriages are traditionally arranged by the parents of the contracting parties and the prospective bride and groom are prohibited from meeting subsequent to the arrangement and prior to the wedding day.” Unfortunately, such waivers are very rarely granted by the USCIS. The “extreme hardship” exception has been interpreted by the USCIS to mean something very close to “impossible”. It generally is available only to people who are so disabled that they can’t fly at all. As for the second grounds for a waiver, very few people qualify for this exception, and those that do often have a difficult time proving it to the government’s satisfaction.

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Laurie Wu, Attorney
(732) 387-3668
laurie@lywlaw.com

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