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To
K or not to K: A good question
Article
by Neena
Bohra, Immigration
Attorney with Law Offices of Neena Bohra
Have you ever contemplated marriage
to someone from another country but were unsure
about the process of applying for that special
person to enter the U.S. and also be able to study,
work and/or travel outside the U.S.? This article
addresses some common questions about the K visa,
a viable option for U.S. citizens who are serious
about engaging in marriage after entry into the
U.S. and desire results in a timely manner
The K visa, or Fiancé (e) visa,
as it is more commonly known, is a nonimmigrant
visa option that is not as heavily utilized as other
visas, but is laden with tremendous benefits for
the petitioner and the beneficiary. The timeline
for a K fiancé (e)visa is expeditious compared to
an alien relative petition for a spouse. The requirements
for filing the first step of this process with the
Immigration and Naturalization Service (INS) focus
on establishing eligibility of the petitioner, and
proving that the petitioner and beneficiary have
met within the last two years. There must
be proof of a bona fide intention to marry and the
parties must legally be able to marry. Matter
of Manjoukis, 13 I&N Dec. 705 (DD 1971)
[Fourteen year old women cannot legally marry];
Matter of Souza, 14 I&N Dec. 1 (R.C.
1972) [Existing prior marriage. Where divorce filed
although likely to be finalized within 90 days,
was not yet finalized].
Only U.S. citizens are eligible to apply
for fiancées. A copy of a birth certificate or
naturalization certificate is ample documentation.
In addition, biographic information is needed
for both parties including five years of past
home addresses and work history. Depending
on the jurisdiction in which the petitioner resides,
the petition for a fiancé (e) is filed at a regional
INS office in Vermont, Nebraska, California or
Texas. This type of petition cannot be filed a
consulate overseas and cannot be filed for a beneficiary
already in the United States. The processing
times differ at each regional service center depending
on current workload, staffing issues and other
factors.
Once a petition is approved, INS generates
an approval notice and the file is sent to the
National Visa Center (NVC), which forwards the
petition to the consulate, previously designated
in the petition. This overseas consulate is responsible
for issuing the K-1 visa. The consular officers
abroad have much discretion, as a matter of law,
to determine whether to issue a visa even after
the INS has approved a petition. Candidates
must be ready, able and willing to answer any
related questions about status and eligibility.
Various factors for candidates to consider
include the fact that the fiancé/e must enter
the U.S. solely for the purpose of marriage to
the petitioner and the marriage must occur within
90 days from entry into the U.S. A K visa holder
cannot change status or apply for adjustment of
status on any other grounds beside marriage.
Other potential benefits are:
1.
Additional filings are not necessary for children
and the visas are generally issued in a timely
fashion. Children (under 21) of the fiancé/e may
accompany on a K-2 visa. K-1 and K-2 holders can
obtain authorization to work under that visa status.
2. Once the marriage has taken place
in the U.S. and a marriage certificate issued,
the K visa holders apply to adjust to residency
status. This interview for adjustment of
status based on a K visa generally takes place
on the same day as the filing at a local INS office.
This saves much waiting time. Currently, an I-485
application based on marriage in New York takes
578 days from the date of filing.
3. A K visa holder initially obtains
a two-year conditional residency status, not legal
permanent residency status. On the second
anniversary from the date the beneficiary becomes
a conditional resident, she/he must file additional
documentation to establish the existing bona fide
nature of the marriage. A package with supporting
documentation is filed to prove that above so
INS can “lift” the conditional elements of this
status. If the couple has been living together
as a bona fide couple and has requisite evidence
to prove that they are currently living together
and married in good faith, this requirement is
usually not difficult to fulfill.
4. K-1s and K-2s are authorized to
work in the U.S. (8 CFR Sec. 274a.12(a)(6)) and
must apply for separate work authorization using
Form I-765 at an INS office. This option is for
those who wish to work before marriage and applying
for adjustment of status.
5. Once a petition is approved, it is valid
for four months. It can be revalidated for four-month
intervals but law does not allow extensions of
stay for the K visa holder. The petition is automatically
terminated upon death of the petitioner or if
the petitioner withdraws the petition.
In summary,
the advantages are: quick turnaround times for
processing and entry into the U.S. as well as
a cursory interview at the I-485 stage and same
day interviews. This is because the “checks and
balances” have already occurred at the consular
processing stage abroad.
This option is not a viable one for those
not serious about marriage and not willing to
wait until the beneficiary enters the U.S. Remember
that the beneficiary must marry within 90 days
of entry; the visa will not be valid after 90
days after entry and an adjustment of status case
must be filed in a timely manner.
About
the Author
Law Offices of Neena Bohra
302 W 37 th St, 5th Floor
New York, NY 10018
(212) 279-0424
neena@neenalaw.com
The above information is
general in nature and not to be used as a substitute
for legal advice on a particular case. For more
detailed and case specific information, please
contact Neena
Bohra at 212-279-0424.
For a limited time, we are offering FREE initial
consultations!
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