The K-1 Visa classification is available to foreign fiance(e)’s of U.S. citizens. The law requires the parties to have "physically met" within a two year window prior to filing the petition. Only U.S. citizens can file the fiance(e) petition (Form I-129F) with the USCIS. The K-2 visa allows unmarried children (under age 21) of the fiance(e) to move to the US as well. The stepparent/stepchild relationship must be created before the child reaches the age of 18. The child may travel with (accompany) the K-1 parent/fiance(e) or travel later (follow-to-join) within one year from the date of issuance of the K-1 visa to his/her parent. A separate petition is not required if the children accompany or follow the foreign fiancé(e) within one year from the date of issuance of the K-1 visa. If it is longer than one year from the date of visa issuance, a separate immigrant visa petition is required.
Once the fiancé(e) petition has been approved by the USCIS, the file is sent overseas to the nearest U.S. consular office to the foreign fiance(e)’s residence. The consular processing abroad can take between two and six months. This is in addition to the 60 to 120 days it takes for the USCIS to approve the fiancé(e) petition. Once the K-1 visa is issued by the Consulate, the fiancé(e) has six months to enter the U.S., after which the parties have 90 days in which to get married. After marriage, the foreign spouse should immediately file an "adjustment of status" application for permanent resident status. The foreign spouse may also apply for Employment Authorization Document (EAD) until the adjustment of status application (Form I-485) is approved and "advance parole" in case he or she want to travel outside the United States and re-enter before getting the green card (I-485 approval).
If the I-485 is approved prior to two years after the marriage occurred, a "Conditional" Permanent Resident status (temporary green card) which is valid for only two years will be issued. If the foreign spouse is interviewed and I-485 is approved two or more years after the marriage occurred, he or she will obtain regular permanent resident status (Green Card) with no conditions. The time it takes to approve an I-485 depends on the nearest local USCIS office's processing timeline.
If the foreign spouse was given “conditional permanent residency", two years from the date he or she was granted this status an application to remove the conditions on residence (Form I-751) must be filed with the USCIS in order to have the "Conditional" status removed. Upon approval of the I-751, a regular green card will be issued.
Three years after obtaining conditional or permanent resident status, an application to apply for naturalization (citizenship) may be filed with the USCIS assuming that divorce or separation has not occurred.
Please contact our law firm for additional discussion of this category and alternative options.
[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]