US IMMIGRATION

K-1, The Fiance(e) Visa

The K-1 visa permits the fiancé(e) of a U.S. citizen to enter the United States for a 90-day admission period in which the couple must marry and then apply for adjustment of status to permanent residence. The K-1 is actually a nonimmigrant visa classification designed to facilitate the admission of intending immigrants to the U.S. Therefore, issuance of the K-1 at the Consulate requires much of the same information as an immigrant visa would. This comprehensive information is basically then re-submitted to the U.S. Citizenship and Immigration Services (“CIS”) when the adjustment of status application is filed. K-1 visa processing can take longer in the end since it requires comprehensive (and often duplicative) personal and supporting documentation to be submitted at two stages of the process.

A K-1 visa is issued to the fiancé(e) of a U.S. citizen after a petition is filed with CIS and approved. The couple must prove to CIS that: a) they have previously met in person within two years of the date of filing the petition (unless a waiver is granted); b) they have a legitimate intention to marry; and c) they are legally able and willing to conclude a valid marriage in the U.S. within 90 days of the fiancé(e)’s arrival. If the couple does not marry within 90 days, the K-1 fiance(e) and any of his or her K-2 dependents (children under 21) must depart the U.S. If they fail to leave, they may be rendered removable from the U.S.

Once CIS approves the fiancé(e) petition, the appropriate Consulate is notified (in Canada, this is Montreal) and they issue a letter to the beneficiary outlining the next set of steps for the visa application. Once the required documents are submitted to the Consulate and the necessary security clearances are conducted, the applicant is interviewed and the K-1 visa will be issued with a validity period of six months. The visa is a one-entry visa, meaning once it is “activated” the 90 day period required for marriage begins. However, the beneficiary may enter the U.S. as a visitor and then choose later to enter as a K-1 within the six-month validity of the visa.

K-3 Visa

The K-3 visa permits the spouse and unmarried, dependent children of a U.S. citizen to enter the U.S. as nonimmigrants and adjust to permanent resident status later provided they are the beneficiaries of a pending or approved alien relative petition. The application process is very similar to the K-1. Once the petition for alien relative is approved, the beneficiary can apply for immigrant visa processing at the appropriate Consulate abroad or adjustment of status within the U.S.

A K-3 visa is issued to the spouse of a U.S. citizen provided that: a) the beneficiary is already married to the U.S. citizen; b) the U.S. citizen spouse has filed a petition for alien relative on behalf of the alien spouse with CIS for the purpose of obtaining an immigrant visa; and c) a petition for alien fiancée must also have been filed and approved by CIS.

Once CIS approves the fiancé(e) petition, the appropriate Consulate is notified and a letter is issued to the beneficiary outlining the next set of steps for the visa application. Once the required documents are submitted to the Consulate and the necessary security clearances are conducted, the applicant is interviewed and the K-3 visa will be issued. The K-3 visa is a multiple-entry visa with a validity of up to 10 years. Once the visa is “activated” at the port-of-entry, the alien spouse will be admitted to the U.S. for a two year period. Please note, the petition for alien relative may have been approved but not actually received at the Consulate. At the K-3 interview, the consular officer may ask if the beneficiary wants the status of the petition for alien relative checked to see if it has been received by the National Visa Center (“NVC”). If is has been approved and received by the NVC, the applicant will then have the opportunity to process an immigrant visa rather than the nonimmigrant K-3.

The application for permanent residence, either through adjustment of status or immigrant visa processing abroad, may be filed only after the petition for alien relative is approved.

Immigrant Visa

An immigrant visa is a permanent visa, otherwise known as the “green card”. This process allows the foreign spouse and/or unmarried, dependent children of a U.S. citizen to live and work permanently upon entry into the United States.

An immigrant visa is issued to the spouse of a U.S. citizen provided that: a) the beneficiary is married to the U.S. citizen; b) a petition for alien relative has been filed by the U.S. citizen on behalf of their foreign national spouse and approved by CIS; and c) an immigrant visa number has been assigned to the beneficiary by the National Visa Center.

Once CIS approves the petition for alien relative, the NVC is notified and an immigrant visa number is assigned. The NVC sends a detailed package to the beneficiary outlining the comprehensive set of documents which will be needed to file the case for interview. Once the required information and documentation is sent to the NVC it is reviewed, and, if satisfactory, the case is sent to the appropriate Consulate for interview.

The interview at the Consulate is basically a review of the application forms and supporting documentation and also takes place to ensure that the beneficiary and U.S. citizen sponsor are in fact legitimately married and have not entered into an agreement for the sole purpose of evading immigration laws. Upon successful completion of the interview process, an immigrant visa packet is issued to the beneficiary. When the foreign national spouse enters the U.S. through the port-of-entry, Customs and Border Protection processes the immigrant visa packet and stamps their passport. At that time, the individual is considered a lawful permanent resident of the U.S. The actual green card arrives several months later.

If you have been married for less than two years at the time lawful permanent resident status is accorded, the foreign spouse will be given conditional status which is accorded for two years. Prior to the two year anniversary of the green card being granted, the couple must apply to remove the conditions on residency. This acts as an “insurance policy” to make sure that the couple is still married and living together as a bona-fide couple.