K-1 and K-2 Visas
K-1 Visas are available to foreign nationals who would like to enter the U.S. for the sole purpose of marrying a U.S. citizen. Minor children of the alien fiance(e) may accompany them to the U.S. using a derivative K-2 visa. K visas are unique in that they are the only “non-immigrant” visa classification which require the visa applicant to have the intention of immigrating the U.S. – something which would ordinarily prevent a visa applicant from obtaining a non-immigrant visa.
In order to establish K-1 visa classification for an alien fiance(e), the U.S. citizen must first file a petition with the INS office having jurisdiction over the place of the petitioner’s U.S. residence. Through the petition, the petitioner must establish that s/he:
- Has a genuine intention of marrying the alien fiance(e);
- Is legally able to get married;
- Is willing to get married within 90 days after the date that the alien fiance(e)
enters the U.S.; and - That the petitioner and beneficiary have previously met in person within the
past two years – this requirement, however, may be waived by the INS under
certain limited circumstances.
Once the petition is approved, the INS will forward it to the U.S. consular office in the country where the alien fiance(e) will be applying for his or her visa. There the alien fiance(e) will have to file an non-immigrant visa application, pass a medical exam, submit certain documentation, and appear before a consular officer, through all of which the alien fiance(e) must establish eligibility for the visa.
If the consular officer approves the visa application, the alien fiance(e) will be issued a K-1 visa which will be valid for one entry during a period of six months following the date of approval. Once in the U.S., the the K-1 visa holder must get married to the U.S. citizen petitioner within 90 days. Once in the U.S. K-1 visa holders (as well as K-2’s) may also apply to the INS for work authorization. After the marriage, the K-1 visa holder must apply to the INS for adjustment of status to establish a record of entry for conditional permanent residence. After two years, the alien spouse may apply to the INS for removal of the conditional status, thus making the status permanent. It is important to note that K-1 visa holders may not change their status or adjust status based upon any grounds other than marriage to their U.S. citizen spouse who filed the original K-1 petition.
Recently, through the LIFE Act, the K visa category was expanded to allow immigrants who married U.S. citizens abroad and are awaiting approval of their green card applications, to enter and stay in the U.S. while the INS makes a decision on their applications. Before the LIFE Act, immigrant spouses who married U.S. citizens abroad could not enter the U.S. until their immigrant visas were approved, because they were considered “intending immigrants”. Unlike V visa applicants, K visa applicants do not have to have filed applications by December 21, 2000 and they are not required to show that they have been waiting any particular amount of time to get their visa. In order to qualify for a K visa, a prospective applicant need only have his or her U.S. citizen spouse file a K visa petition on their behalf. K visa holders can also obtain work authorization. This extended category is a great benefit to unmarried children between 18 and 21 years of age (whose parents married U.S. citizens abroad), as they were required to have separate immigrant petitions filed on their behalf – which took many years to be approved. Now, these unmarried children who accompany or follow a parent to the U.S. with a new K visa are able to obtain their immigrant visa in the U.S. by adjusting their status under the immigrant petition that was filed for their parent. Like the new V visa category, neither INS nor DOS have issued any rules or regulations concerning the processing of these K visas and therefore they are not yet accepting petitions for these new benefits.
If you have questions or need assistance with K visas, call South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.
