Immigration Law Article:
Bringing a Foreign Fiancée or Spouse to the United States:
Who is Eligible to File a Petition To Obtain a K-1 Fiancée
Visa or a K-3 Marriage Visa?
NOTE: (This article was written by an attorney at The Solomon Law Firm, P.C. in Houston, Texas ( www.thesolomonlawfirm.com ) who has personal experience in going through the process of bringing a foreign fiancée to America. We think you will find it very enlightening.)
First let me say that you don’t have to ask a lawyer to get an answer to the question at the top of this article. Just read the instructions for filing a petition for a K-1 fiancée visa or a K-3 marriage visa. Let me help you find them. The form that is used to file a petition for a K-1 fiancée visa or a K-3 marriage visa is the Form I-129F. You can do a search on the Internet using Form I-129F as your search term, or you can go to www.uscis.gov and find the form there. You can download and print the Form I-129F for free. You can also download and print the Instructions for Form I-129F, Petition for Alien Fiancé(e) for free. I urge you to do this, even if you decide to hire a law firm to help you with the process.
Pay close attention to all of the instructions for the Form I-129F, starting with this warning:
“The filing addresses provided on this form reflect the most current information as of the date this form was last printed. If you are filing Form I-129F more than 30 days after the latest edition date shown in the lower right-hand corner, please visit our website online at www.uscis.gov before you file, and check the Immigration Forms page to confirm the correct filing address and version currently in use. Check the edition date located in the lower right-hand corner of the form. If the edition date on your Form I-129F matches the edition date listed for Form I-129F on the online Immigration Forms page, your version is current and will be accepted by USCIS. If the edition date on the online version is later, download a copy and use the online version. If you do not have internet access, call the National Customer Service Center at 1-800-375-5283 to verify the current filing address and edition date. Improperly filed forms will be rejected, and the fee returned, with instructions to resubmit the entire filing using the current form instructions.”
That is the government’s warning in bold print, not mine. Yes, if you make a mistake and use the wrong form, or if you follow the wrong instructions and make a mistake, everything will be returned to you and you must start all over again trying to obtain your K-1 fiancée visa or your K-3 marriage visa. You won’t be very happy about this. Your fiancée or your wife will be even less happy.
If you don’t have the ability to download and print the Form I-129F and its instructions, you can order them by calling the toll free number at the United States Citizenship and Immigration Service, which is 1-800-870-3676, or by calling the National customer Service Center at 1-800-375-5283. Before you make that call, however, you should be sure you have a list of all the forms you will need, which is not just the Form I-129F. Otherwise you will just have to call them again to obtain the additional forms you need, and it will delay the date that you and your K-1 fiancée or your K-3 wife can join you in America. We will talk more about this later.
While we are talking about warnings, let’s talk about one more. If you ignore this warning, the penalty is likely to be much worse than just a delay in obtaining approval of your K-1 fiancée visa petition or your K-3 marriage visa petition. Here is the warning that appears on the instructions for K-1 fiancée visa petitions and K-3 marriage visa petitions:
“If you knowingly and willfully falsify or conceal a material fact or submit a false document with this Form I-129F, we will deny the Form I-129F and may deny any other immigration benefit. In addition, you will face severe penalties provided by law and may be subject to criminal prosecution.”
Wow, if that doesn’t scare you, it should! This warning appears all the way at the end of seven pages of instructions. The fact that you were tired by the time you got to that page and didn’t read it carefully is no excuse.
What the heck, you say, I love my fiancée and I will take the risk. I will just tell a little white lie, you think to yourself. Do you really want to take the risk? Aside from a denial or a revocation of approval, what is the risk? Well, the answer is right there in black and white on the Form I-129F, but you probably will skip right over it. Let’s cover it here, though, because they aren’t fooling around. The penalties are quite serious.
A fine of up to $10,000.00 or five years in prison or both “will be” imposed for willfully and knowingly falsifying a material fact, making a false statement, or using a false document.
But wait, there is more:
A fine of not more than $250,000.00 or not more than five years in prison or both “shall be” imposed for knowingly entering into a marriage contract for the purpose of evading any provision of the immigration laws.
So, aside from the little white lie that will get you in trouble, if you were tempted to accept that proffered payment of $30,000.00 or so to file a K-1 fiancée visa petition, or to marry a woman in another country and file a K-3 marriage visa petition so that she can come to America, you better think again.
Visa fraud is not taken lightly, and people get caught all the time. Because of this, it is more difficult for couples who have a genuine love and relationship to obtain a K-1 fiancée visa or a K-3 marriage visa. In fact, because of the heavy aura of suspicion, there are times that people who are genuinely in love and have a genuine relationship may be denied a K-1 fiancée visa or a K-3 marriage visa. Sometimes they give up and move on with their lives. Sometimes the American man moves to China or wherever his fiancée or wife lives and they make their life together there. Sometimes they apply again, and sometimes they actually are approved for a visa the second time.
The message here is very clear. Don’t even think about falsifying or concealing information or submitting false documents with your Form I-129F. You can bet that everything you say will be the subject of intense scrutiny and even government (including FBI) investigations. If you fail to disclose everything, or if you submit false information, then even if your K-1 fiancée visa petition or K-3 marriage visa petition is approved, that approval can be immediately reversed when your attempt to be sneaky or dishonest comes to light, in addition to any other penalties or criminal charges that you may face.
So are you eligible to file the Form I-129F to seek a K-1 fiancée visa petition or a K-3 marriage visa petition? Let’s check the Instructions for Form I-129F, Petition for Alien Fiance(e):
“You may file this petition if:
1: You are a U.S. Citizen, and
2. You and your fiancé(e) intend to marry within 90 days of your fiancé(e) entering the United States, and are both free to marry, and have met in person within two years before your filing of this petition unless:
- The requirement to meet your fiancé(e) in person would violate strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice; or
- It is established that the requirement to personally meet your fiancé(e) would result in extreme hardship to you.
OR
- You wish to have your spouse enter as a nonimmigrant. See Item 8, How Do You Use This Form for Your Spouse Seeking entry Using a K-3 Visa, on Page 4.
NOTE: Unmarried children of your fiancé(e) or spouse who are under 21 years of age and listed on this form will be eligible to apply to accompany your fiancé(e) or spouse.”
Did your eyes glaze over yet? Let’s break that down.
The first rule is easy. If you are not a U.S. Citizen then you are not eligible to file a Form I-129F to ask for a K-1 fiancée visa. Period. Stop reading. Don’t waste your time or your money.
Most of you who will be reading this article, though, will be a U.S. Citizen, so you can proceed to the next part of the instructions. Later we will discuss what you must do to prove that you are a U.S. citizen. Yes, you have to prove everything. They will accept your word for nothing.
You also read this part correctly. If you obtain a K-1 fiancée visa and bring your fiancée to the United States, you must marry her within 90 days of her arrival. If you don’t marry your K-1 fiancée within that 90 day time period, she must leave the country and cannot return unless you start the process all over again, and she may or may not receive permission to come to the United States again.
I know someone who is going through this difficult process now. His K-1 fiancée arrived in the United States after obtaining a K-1 fiancée visa, but she was homesick, so she left the United States just before the 90 day time period expired. Within a couple of months after returning to her home in China, she decided that she in fact wanted to be in the United States with him and marry him, and wanted him to start the process all over again.
There is a message in that story for you and your K-1 fiancée. Some ladies who arrive in the United States with a K-1 fiancée visa get married and are very happy here. Others are not. If you have concerns, I wrote a book about it. It is called No Price Too Great. It was published around the end of 2008. If you are interested in reading it you can find it at www.nopricetoogreat.com. It is also available through all the major book sellers on line, but there will be an author’s blog with a continuation of the story at www.nopricetoogreat.com.
But don’t miss the second part of the eligibility requirement. Before you have any chance of obtaining approval for your K-1 fiancée visa, you must meet the requirement that you have met your fiancée in person within two years before your filing of the Form I-129F seeking a K-1 fiancée visa.
But, you say, it would be expensive for me to go meet her, or I can’t afford to go meet her, or I am too busy to go meet her, so surely I can get an excuse based on it being an extreme hardship. Sorry, that isn’t going to happen. I don’t care what the instructions say. We are dealing with reality here, and the reality is that the granting of such an exemption would be rare indeed. If you think you meet the other exception, based on strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice, go for it, but again don’t have your hopes too high.
So what am I saying?
Well, if your fiancée lives in a country where she can obtain a visa that allows her to visit you in America, you can bring her to America to meet you. But if your fiancée lives in a country where she will not be able to obtain a visa to come and visit you, like China, for example, then you have only one choice. Well several, I guess, but only one is practical. You have to get across that big pond that separates you from your fiancée somehow. Swimming isn’t a very good option. A boat is almost as impractical. A hot air balloon also isn’t a very good choice. You probably don’t know anyone who can “beam you” over there. So let’s be real. You will have to get on an airplane and go see her. That costs money. But if you are concerned about the cost of a plane ticket, you should look carefully at what it will eventually cost if you decide to bring your K-1 fiancée or your K-3 wife to America.
Now you will also be required to submit evidence that you and your fiancée intend to marry within 90 days after she arrives in America if her K-1 fiancée visa is approved, but that isn’t difficult to do if you are being honest. You can each sign a statement swearing to the truth of the fact that you do intend to marry within that 90 day time period, though they invite you to provide more than just your statements. What else can you do? Plan a wedding and provide evidence of those plans. Submit or have available at the interview photos of the two of you with other members of her family in the photo with you. Have photos of the two of you with friends and family that were taken at an engagement party when you were visiting her. Visit her as many times as you can, and prove it with copies of plane tickets and hotel receipts and passport pages.
Notice here that you don’t have to promise to marry, you just have to swear that you intend to marry. There is a difference. There is a 90 day window of time to act after your K-1 fiancée arrives in America for a reason. First of all, it may take a little time for you and your K-1 fiancée to finish planning your wedding after she arrives. Second, you and your K-1 fiancée may want to spend some time together before you actually have the wedding ceremony after she arrives. Sometimes, as I have already indicated, one or the other of you will change your mind about wanting to get married.
When seeking a K-1 fiancée visa, those are the only eligibility requirements for filing the Form I-129F. That doesn’t mean that the I-129F fiancée visa petition will be approved, but as I already indicated, they are almost always approved. Remember, though, that approval of the Form I-129F fiancée visa petition is one thing. Obtaining approval at the United States Consulate in the country where your K-1 fiancée lives is a completely different, and often far more difficult, issue.
Don’t be misled by advertising statements and promises on law firm websites. All that a decision by the government about the Form I-129F accomplishes is to determine whether you have established eligibility for the requested benefit. Don’t believe me? Read page seven of the Instructions for Form I-129F, Petition for Alien Fiancé(s).
For the sake of brevity, we will assume in this article that you are seeking a K-1 fiancée visa. If you are in fact seeking a K-3 marriage visa, by definition that means you have already married the woman who you are trying to bring to the United States. In that event, there are additional instructions for you to follow. These additional instructions also appear in the Instructions for Form I-129F, Petition for Alien Fiance(e). Just look at section 8.
Whether you are seeking a K-1 fiancée visa or a K-3 marriage visa, you may also be interested in bringing one or more children to the United States with your fiancée or spouse. You will be comforted to know that, as previously quoted from the instructions, unmarried children of your fiancée or spouse who are under 21 years of age and listed on the Form I-129F will be eligible to accompany your fiancée or wife to the United States. What you should also know, though, is that the child will be required to leave the United States if he or she arrives so close to their twenty first birthday that they don’t receive a green card in time.
While it is beyond the scope of this article, it is possible for the child or children of your fiancée or wife to come at a later date. Depending on how long a delay there will be, it may or may not be necessary to obtain separate approval for the child or children.
Either way, we need to introduce some new terms. A child who accompanies or follows a K-1 fiancée to the United States will receive a K-2 visa. A child who accompanies or follows a K-3 spouse to the United States will receive a K-4 visa.
Ah but wait.
Even though you have decided that you meet the eligibility requirements that we have discussed so far, there are other rules that must be considered if you are seeking a K-1 fiancée visa.
If you have filed two or more K-1 visa petitions at any time in the past, you must apply for a waiver. If you have previously had a K-1 visa petition approved within two years prior to the filing of your Form I-129F seeking a K-1 fiancée visa, you must obtain a waiver. This latter requirement would apply to the person I mentioned previously, whose fiancée came to America when their K-1 fiancée visa application was approved, and then she returned to China within the 90 day period without marrying him, because she was homesick. Now she wants to return. They must try to obtain a waiver. That means they have some explaining to do, an extra hurdle to cross, and they may or may not be successful.
If you are in a situation where you must obtain a waiver, follow the rules in the Instructions for Form I-129F, Petition for Alien Fiance(e). This basically requires the submission of a written request along with the Form I-129F, accompanied by documentation of whatever the basis of your claim for a waiver might be. I hope you never have to go there.
Now I will tell you some things that you may find hard to believe. As difficult as the government is going to make it for you and your sweet lady to obtain a K-1 fiancée visa or a K-3 marriage visa, they still leave the door open for others in a way that might make you wonder. But first let’s talk about how everyone got swept into what seems like a suspicious category, including in all probability, you.
That is because you may well fall under the International Marriage Broker Regulation Act (called IMBRA, for short). I didn’t use a marriage broker, you say. I met my lady through a dating website, just like men and women in America meet each other every day. All either one of us did was pay a monthly fee to join, and then we were able to look at profiles of other people. We saw each other’s profile and liked what we saw, so we started writing to each other. Neither one of us paid a marriage broker to do anything.
Guess what? IMBRA defines “international marriage broker” to mean a corporation, partnership, business, individual, or other legal entity, whether or not organized under any law of the United States, that charges fees for providing dating, matrimonial, matchmaking services, or social referrals between United States citizens or nationals or aliens lawfully admitted to the United States as lawful permanent residents and foreign national clients by providing personal contact information or otherwise facilitating communication between individuals.
There are some exclusions listed that we won’t go into here, but the bottom line is that many, if not most, if not nearly everyone, who is reading this is likely to have met his or her foreign love through the Internet in one way or another, or some website like I have described was used to facilitate their communications.
The first thing to remember is this: when you are asked how you met, tell the truth. Don’t make up some cover story about how so and so introduced you. You are just buying trouble. If you make up a story you may very well slow down your path to a K-1 fiancée visa or a K-3 marriage visa, or cause your petition to be denied because you lied about how you met. If you met through a dating site on the Internet, say so, and don’t worry about it. Rest assured that the United States Consulates see this answer every day of the week on many, many K-1 fiancée visa and K-3 marriage visa petitions. They don’t deny K-1 fiancée visa and K-3 marriage visa petitions just because a couple met on an Internet dating site.
You might find it a bit distasteful to give a positive answer on the IMBRA questions about how you met, because you will see that there are additional disclosure requirements under IMBRA for anyone who has been convicted of certain crimes. A person who falls in this category must submit certified copies of all court and police records showing the charges and dispositions for every such conviction.
And pay attention now, if you fall in this category, because this requirement is there even if a person’s records were sealed or otherwise cleared or if anyone, including a judge, law enforcement officer, or attorney, told you that you no longer have a record.
This information must be disclosed, but not so the government can prohibit someone from obtaining a K-1 fiancée visa or a K-3 marriage visa. It is obtained because if a K-1 fiancée visa or a K-3 marriage visa is approved for a person who made such disclosures, a copy of his petition, including all information submitted about his criminal convictions, will be provided to the Department of State so it can be given to the woman such a person is trying to bring to the United States either through a K-1 fiancée visa or a K-3 marriage visa.
Surely, you say, these rules must relate only to crimes that did not hurt anyone. Surely, you say, someone who committed violent crimes would be excluded from trying to obtain a K-1 fiancée visa or a K-3 marriage visa on those grounds alone. Surely you are wrong.
This IMBRA disclosure rule applies to convictions for domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking.
If that isn’t bad enough, this IMBRA disclosure rule also applies to convictions for homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of these crimes.
Whew! And we still aren’t done. This IMBRA disclosure rule also applies to crimes relating to a controlled substance or alcohol on three or more occasions, and such crimes did not arise from a single act.
Well the good news is that at least anyone who is required to make these kinds of disclosures under IMBRA must seek a waiver of the filing limitation that is imposed by IMBRA. Basically anyone who committed a violent offense must present evidence to show that extraordinary circumstances exist in his case. If, for example, someone was being attacked by their spouse or parent at the time and was acting in self defense, they might seek a waiver.
Under other provisions of IMBRA it might be necessary to seek a waiver when seeking a K-1 fiancée visa or a K-3 marriage visa where you have previously obtained one or more of such visas. You might be required to submit a death certificate and other evidence, for example, if your previous alien spouse died.
So how do you feel now? Are you confident that you can meet the eligibility requirements? Good. In another article we still need to discuss the actual filing process. And remember, this process that we have discussed so far will only get you a piece of paper that says your visa has been approved, assuming you submit everything correctly and meet all of the requirements. You will still face the more difficult part of the process, but that discussion is for another day.
© 2008 Lee Solomon
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