1. You and your fiancée must both be free to get married at the time you file your petition. This means that you are both not married at the time the petition is filed with USCIS. Wait until your divorce is final before you file your K1 petition. You should have any annulments or divorce decrees reviewed by a Family Law Attorney prior to the filing of your case. The family law attorney can verify that your annulment or divorce is in fact valid and final. Many people who think that they are divorced are still actually married (as a result of not finalizing their divorce paperwork). If you file your K1 fiancé visa case while you are still married then the case will be denied. It is much better to wait until you know, for sure, that your divorce is final, then to file your case prematurely and have it denied. If your case is denied do not expect to appeal the decision. Rather, you will need to start the whole process all over again.
2. You must be a United States Citizen. Lawful permanent residents (green card holders) cannot successfully submit fiancée petitions. They are not eligible. If you only have a green card and you wish to do a fiancé visa then you should talk to an Immigration Attorney to see if you qualify to become a United States Citizen. If you cannot become a United States citizen then you should consider marrying your fiance and then doing a marriage based visa. This will take much longer than doing a fiance visa.
When you file your fiancé visa case you will prove that you are a U.S. Citizen by providing your birth certificate, U.S. Passport, or Certificate of Naturalization.
3. You need to have met your fiancée in person in the last two years. You will need to prove to USCIS that you have met your fiancée face to face sometime in the past two years. Even if you call or skype your fiance every day you will still not meet this requirement. If your fiancé was your childhood sweetheart, who you grew up with and saw every day, but you have not seen her in over 2 years you will not meet this requirement. You may be able to get a waiver to this face to face requirement based on medical or religious reasons. However, these are not generally easy to obtain.
You can prove that you have met in person by showing: date stamped photos of the two of you together; photocopies of dated plane tickets, restaurant receipts, hotel receipts; passport pages showing entry stamps to the foreign country where the 2 of you met; and signed affidavits by family and friends attesting, under oath, that you have met each other. Have an immigration attorney review your evidence to make sure it will be strong enough for you to obtain your fiancé visa. If your evidence is not strong enough it can and should be made stronger prior to filing the case.
4. Your fiancée must not have violated U.S. immigration laws. He or she cannot have used fraud or other illegal means to enter the United States. In addition past immigration violations by the non citizen fiancé can put the K1 fiancé visa process in jeopardy. These would include: violating student visa rules; entering the U.S. without a visa; overstaying a visa; working in the United States without work authorization. An experienced Immigration Attorney will review the Immigration history of your fiancé to make sure there will not be any issues in your fiancé visa case.
5. You must not have filed more than two fiancée visas in the past nor had an approved fiancée petition in the last two years. Once again, a waiver is available from USCIS but there is no guarantee that it will be granted. If this is your situation you should definitely consult with an experienced Immigration Attorney prior to moving forward with your case.
6. You cannot have been convicted of certain crimes. USCIS will be looking at the criminal background of the US citizen. The US Citizen must not have been convicted of a variety of crimes such as domestic violence, sexual abuse, child abuse, dating violence, stalking, controlled substance violations and homicide. Just to be safe, if you have had any crime in your past then an immigration attorney should review the matter prior to you filing your fiance visa case. It is better to take the time in the beginning to clear up any criminal issues then to have them come up during the case. You should never lie to USCIS and you should expect them to know about your criminal history.
Also, your fiancé should be told about your criminal past. It will really hurt your case if, at the interview, your fiancé has no idea that you were convicted of the crime in question. It will make your relationship seem less bona fide and can lead to your case being denied.
7. You must get married to your fiancée within ninety days of your fiancée entering the United States. In addition, your fiancée will only be able to marry you (the good news is that she cannot substitute someone else) once she comes over on her fiancée visa. If she enters the United States on a fiancée visa and does not marry you within 90 days then she will need to return to her home country. Do not put the marriage off. Marry her within the 90 day period so your fiancé remains in legal status. If you did not get married within the 90 day period then you should consult with a fiance visa attorney immediately. Once you get married you can then file for adjustment of status so that she may get her green card. At the same time she can apply for work authorization. At the present time it takes approximately 90 days to receive the work authorization card. Therefore, if you are sure you are going to get married don’t wait until the last minute. Get married and start the green card process so that you can obtain the work authorization card sooner.
8. Your fiancée must not have: a dangerous physical or mental disorder; a communicable disease; or committed serious criminal acts (including drug trafficking and prostitution). Also, you fiancée must not be: a drug addict; likely to become a public charge (welfare recipient); or ineligible for citizenship. If any of these things apply to your fiancé then make sure to consult with an Immigration Attorney prior to moving forward with your case.
9. You will have to show that you have sufficient income to support your fiance when she arrives in the United States. The income requirement is not very high and it varies based on the size of your household. Your income must be at least 125% of the federal poverty line for your new household size. (At the fiancé visa stage your income will need to be at least 100% of the federal poverty line. However, after you marry your fiancé and apply for the green card in the United States, your income will need to be at least 125% of the federal poverty line for your new household size.) If you do not meet the income requirement you may be able to use assets which you own to meet the requirements. In the alternative, you can get a co-sponsor. At the fiancé visa stage you will be filing Form I-134. You will also supply: a bank letter (showing the amount you have on deposit with the bank, the date the account was opened and the total amount that was deposited in the past year); an employer letter on company letterhead which states that you currently work there, how long you have worked there, how much you make, what your job is, and whether the job is temporary or permanent); statements from your investment accounts and your last 3 years worth of federal tax returns.
10. You must show USCIS that you intend to marry your fiancée and that you have a bona fide fiancé relationship. USCIS will be requiring both you and your fiance to sign affidavits under oath that you intend to marry each other within 90 days of your fiancé entering the United States. You will also be stating under oath how you met each other and how your relationship has developed over the time you have known each other.
You will also need to prove that you have a bona fide fiancé relationship with each other. (This is generally shown through email correspondence, evidence of gifts, receipts and photos of the engagement ring(s), evidence of trips you have taken together, affidavits from family members and friends etc., Facebook posts from friends and family congratulating you on your engagement–yes, USCIS does know how to use Facebook and they do use it, at times, when investigating cases.)
If you do not meet these requirements then the K1 will not work for you. However, you may be able to go to your fiancee’s home country, marry her, and bring her into the United States on a green card. Marriage based green cards are currently taking about 9-12 months. Unlike the fiance visa process (where a fiance will still need to apply for a green card in the United States) with a marriage visa your spouse will arrive with a green card. The requirements for a marriage based green card are outside the scope of this article. You should consult with an experienced fiance visa attorney in San Diego to review your situation.
These are not all of the considerations you must consider prior to applying for a fiancé visa. There are many more. You may email or call our office, free of charge about your potential case. We may be reached at 888-801-6558.
Lawrence Gruner is a San Diego Fiance Visa Attorney and a Fiance visa attorney San Diego, and a fiance visa attorney in San Diego with almost 20 years of experience. We have office locations throughout California. We have clients throughout the World. Our office handles cases throughout California, the United States and the World.
You may reach our office toll free at 888-801-6558 . Attorney Gruner would be happy to review your situation and your options. This post is under Fiance Visa Attorney San Diego and Fiance Visa Lawyer San Diego. When hiring a fiance visa attorney in San Diego please make sure to evaluate their total experience in handling fiance visa cases.
The information provided on this site is not legal advice but general information only. Laws do change and additional laws may apply in your case. Every case is different. Please contact our office or the office of another immigration attorney to review your matter prior to filing any documentation with USCIS.
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