Who are Fiances?
Fiances are two people who agree to get married at a future date.
The big question in law is where and when did the couple become engaged.
Engagement when both parties are in the U.S.A.
This usually occurs when the non-U.S. citizen fiancé is in the United States on a temporary visa. The non-U.S. citizen fiancé may be working or studying or even visiting the United States.
There are often times when the couple visit each other in their respective countries and then one day decide to get married. If the decision is taken inside the United States, it is possible to skip the Fiance visa process and proceed directly for Permanent Residence (Green Card).
If a person arrives in the U.S.A. on a Visitors visa and gets married the following day, there is a strong presumption that the person knew that he/she was going to remain in the United States permanently and therefore deceived the Immigration Officer into believing that the visit was temporary.
The immigration laws have certain presumptions depending on whether a person got married within 30 days of arriving in the United States, 60 days, or after 90 days. Please refer to Marriage to U.S. Citizen
Decision to get married when non-U.S. citizen is outside the U.S.A.
In this case it is necessary to apply for a Fiance visa. The Fiance visa requires the U.S. citizen fiance to petition the United States Citizenship and Immigration Services for a fiancé visa (K-1 visa)
Once the petition is approved, the U.S. Embassy or Consulate in the foreign fiances’ country is notified and the Fiance visa (K-1 visa) is granted to that person.
The parties must get married within 90 days of the foreign fiancé entering the United States. It is not possible to obtain an extension of the Fiance visa.
The parties must apply for Permanent Residence for the foreign fiancé immediately they are married in the United States.
Parties must be eligible to get married to obtain a Fiance Visa
At the time of applying for the Fiance visa, both parties must be eligible to get married. One party may not still be married, but going through a divorce. The plan may not be to start the Fiance visa application believing that the divorce will be through by the time the Fiance arrives in the United States.
Other Requirements for a Fiance Visa (K-1 visa)
The parties must have met within the last 2 years prior to filing the Fiance visa. While this requirement may be waived if meeting a Fiance in person would violate a long established custom, or meeting a foreign fiancé would create an extreme hardship for the U.S. citizen.
This requirement is so critical when applying for the Fiance visa with the USCIS and at the time when the foreign fiancé applies for the visa at the Embassy or Consulate.
The USCIS and Consulate want to be 100% sure that this is a genuine relationship with an honest intension to get married.
While the US citizen may provide significant proof to the USCIS that the relationship is genuine resulting in the approval of the petition, the foreign fiancé may be denied the visa after his/her interview at the Embassy or Consulate.
It is at the interview that the Consul has the opportunity of meeting face to face with the foreign fiancé. The Consul will question the foreign fiancé thoroughly on the relationship and elements of the U.S. citzens’ life in the United States.
There are some consular officials who will quickly deny the Fiance visa if there is any question as to the genuineness of the relationship. Accordingly, it is absolutely essential to document the relationship very clearly in the petition and for the Fiance to bring such documentation to the interview.
K-3 Visas - When a couple are already married
This occurs when the non-U.S. citizen spouse is outside the U.S.A. and is married to the U.S. citizen.
For many years the only way that a U.S. citizen could bring his/her non-resident spouse into the United States was through a petition for Permanent Residence and a full application for a Green Card through the Embassy or Consulate of the non-U.S. citizen spouses’ country. This process took a long time and resulted in the spouses being separated for lengthy periods.
The immigration laws were changed to permit spouses of U.S. citizens to come to the United States quicker by using the K-3 visa, which is very similar to the Fiance visa.
This process requires the U.S. citizen to file a petition for Permanent Residence and immediately he/she receives a receipt for the petition, the U.S. citizen spouse files a petition for the K-3 visa.
The advantage of the spouse arriving in the United States on a K-3 visa is that it is much faster than waiting for the full green card process to be completed outside the country.
Even though the parties are married, both the Immigration Service and the Consular official will scrutinize the genuineness of the marriage extremely carefully.
Marriage petitions, K-1, and K-3 visas are considered extremely carefully by government officials when the non-U.S. citizen spouse comes from a country where immigration fraud is common place. In these situations, the interview for the visa becomes an interrogation so it is extremely important that the non-U.S. citizen arrive at the interview with extensive proof of the genuineness of the marriage.
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