K-1 and K-2 Visas for Fiancées and Derivatives

K-1 and K-2 visa, myattorneyusa.com

 

Introduction

U.S. immigration law provides that U.S. citizens (USCs) may petition for K-1 visas for alien fiancées who do not already have immigration status in the United States. The intended beneficiary of a K-1 petition may be approved, provided that all of the eligibility requirements are met. Furthermore, derivative K-2 visas may be available for children of the principal K-1 beneficiary. In order to remain in the United States, a K-1 visa beneficiary must marry the USC spouse within 90 days of admission; otherwise he or she will be without lawful status along with any derivative beneficiaries. K-1 visa beneficiaries may adjust status, but only through marriage to the USC petitioner. This article will explain the eligibility requirements for K-1 visas and the process for maintaining, and eventually adjusting, status.

Statutory Requirements

The primary statute for K-1 and K-2 visas is found in INA § 101(a)(15)(K)(i). In order to be eligible for a K-1 visa, the statute requires that an alien be:

the fiancée of a USC;
who seeks to enter the United States solely to conclude a valid marriage with the petitioner within 90 days of admission.

In order to be eligible for a derivative K-2 visa, an alien must be:

the minor child [unmarried and under 21 years of age] of a K-1 beneficiary who is either accompanying the K-1 beneficiary or following to join.

Pursuant to provisions of the Adam Walsh Act which amended INA § 101(a)(15)(K)(i), USC's with convictions for certain offenses involving the sexual abuse of a child are ineligible to petition unless a waiver is granted in the sole discretion of the Department of Homeland Security (DHS). Please consult this section of our comprehensive article on the Adam Walsh Act and its effects on U.S. immigration law [see section] to learn more about these provisions.

Applying for a K-1 and K-2 visa

A USC must file a Form I-129F, Petition for Alien Fiancé(e) on behalf of the intended beneficiary. The names of derivative beneficiaries should be included on the Form I-129F. A K-1 visa petition is valid for 4 months and may be revalidated in 4-month periods. There is no limit to the number of times a consular officer may revalidate a petition.1 However, multiple requests to revalidate a an approved K-1 visa petition may call the basis for the approved petition into question.

If a petition is approved, a Form DS-160 must be filed with the consulate.2 Note that petitions are automatically terminated where the petitioner dies or withdraws the petition.3

In order for the petition to be approved, the petitioner must demonstrate the following:

That there is a bona fide intention to marry within 90 days of the beneficiary's admission;
That there are no legal impediments to marriage;
That the petitioner and beneficiary have met in person within 2 years of the filing of the Form I-129F;
Pursuant to INA § 214(d)(1), the petitioner must provide his or her criminal record as it relates to certain crimes.4

Bona Fide Intention to Marry Within 90 Days

The Administrative Appeals Office has held that the bona fide intention to marry should take precedent over the perceived closeness of the relationship.5 However, the petitioner and beneficiary must demonstrate that the intended marriage is not being entered into for fraudulent purposes. Please consult our article on marriage fraud [see article] to learn about demonstrating that a marriage is bona fide and not entered into for the purpose of circumventing U.S. immigration law, and for the adverse consequences of entering into a sham marriage.

In addition to that distinction, the petitioner and beneficiary will be required to demonstrate that the intended marriage will take place within 90 days of the beneficiary's admission.

No Legal Impediments to Marriage

The marriage must be legal under U.S. laws and in the jurisdiction where it will take place. See Matter of Manjoukis, 13 I&N Dec. 705 (DD 1971) [PDF version] 6 where a 14-year old USC was held to be ineligible to act as petitioner for a K-1 beneficiary on account of the fact that she was too young to legally marry in Michigan, where the minimum age of marriage for females was 16.

Requirement that Petitioner and Beneficiary Have Met Within 2 Years of Filing

United States Citizenship and Immigration Services (USCIS) may waive this requirement if it would cause “extreme hardship” to the petitioner or if it would “violate the strict and long established customs of the beneficiary's foreign culture or social practice.”7 The customs, culture, and social practice provision is most likely to be satisfied in certain arranged marriage cases. Financial hardship alone has usually been found to be insufficient for waiving the 2-year requirement.8 However, under certain circumstances, it has been held that an inability to travel for both parties may constitute extreme hardship.9

Criminal Record Requirement

The petitioner is required to report the following aspects of a criminal record [if applicable] pursuant to a 2006 USCIS memorandum:

any permanent restraining order against the petitioner;
any conviction regarding domestic violence;
sexual assault;
child abuse and neglect;
dating violence;
elder abuse;
stalking;
certain violent crimes;
any attempt to commit any of the above crimes;
any crimes relating to a controlled substance or to alcohol where the petitioner has been convicted on at least three occasions not arising out of a single act.10

Certified copies of all court and police records showing dispositions are required to satisfy this requirement.11 USCIS may disclose these aspects of the petitioner's criminal history to the beneficiary or legal guardian. Any disclosure must be “pursuant to a showing of compelling circumstances affecting the health and safety an individual.”12 The disclosure must also be provided in writing to the petitioner.13

Scenarios Where Petition Will Not Be Approved

The beneficiary must be admissible to the United States in order for a K-1 petition to be approved. Furthermore, all approved petitions go to consul, who will make a final determination on whether the beneficiary is admissible before formally approving the petition.14 A waiver of inadmissibility for a K-1 beneficiary may only be granted where the ground would be waivable in the event that the beneficiary marries the USC under INA § 212(g)-(i), § 212(a)(9)(B)(v),15 or § 212(d)(11)-(12), or where a waiver would be approved for INA § 212(a)(9)(A)(i) [prior removal for inadmissibility] and INA § 212(a)(9)(A)(ii) [prior deportation].16

Petitions will generally not be approved when the petitioner had previously filed petitions for 2 or more fiancées and the previously approved petition was filed within 2 years of the current petition.17 In the event that a petitioner has had at least 2 previous petitions approved, DHS will notify the petitioner and beneficiary about the previous number of petitions if the current petition is filed within 10 years of at least one of the previous petitions.18 These bars may be waived if DHS finds that unusual circumstances, such as the death or incapacity of a previous beneficiary, weigh in favor of a waiver.19 However, negative factors against the waiver are considered. A waiver will only be granted in “extraordinary circumstances” if the petitioner has a history of violent criminal offenses.20 However, if the petitioner was battered or subject to extreme cruelty at the time he or she committed the violent offense, a waiver will be granted provided that the petitioner was not the primary perpetrator of the violence, that there was a connection between the crime and the petitioner's victimization, and:

that the petitioner was acting in self-defense;
violated a protective order aimed at protecting him or her, or
or the crime did not result in serious bodily injury.

Persons convicted of offenses against a minor specified in section 111(7) of the Adam Walsh Act are ineligible to petition for a fiancée to obtain a K-1 visa. Please see our article on the Adam Walsh Act for more details [see article].

After Approval: Adjustment of Status

While on K-1 or K-2 status, a beneficiary may obtain an employment authorization document.21 This employment authorization will be valid for the duration of K status, and the beneficiary will require a new employment authorization after marrying the petitioner and applying for adjustment of status.

In order to be eligible for adjustment of status, a K-1 beneficiary must marry his or her petitioner within 90 days of admission. Furthermore, INA § 245(d) precludes the K-1 visa beneficiary from adjusting status with any USC spouse but the petitioner.22 If the K-1 beneficiary applies for adjustment of status within 2 years of marrying the petitioner, his or her status will be adjusted to that of conditional permanent resident (CR) status. If the K-1 beneficiary applies for and is granted adjustment of status after 2 years from the date of the marriage, he or she may adjust to lawful permanent resident (LPR) status.

If a K-1 beneficiary marries the petitioner but is subsequently divorced prior to obtaining LPR status, may, under certain circumstances still be granted adjustment of status.23 USCIS guidelines require that the K-1 spouse will require a Form I-864, Affidavit of Support [see article], to be filed, or still be filed, by the original petitioning spouse.24 However, if the marriage ended with the death of the original petitioning spouse, the K-1 beneficiary would likely be eligible to adjust status as a widower, and would not require an affidavit of support to be filed on his or her behalf.25

K-1 beneficiaries are ineligible to change status to a different nonimmigrant status.26 K-1 beneficiaries are also not permitted to adjust status on any ground aside from marrying the K-1 petitioner.27 There are no extensions of stay if the K-1 beneficiary does not marry the petitioner within 90 days of admission.28

K-2 beneficiaries may adjust status along with the K-1 principal. A K-2 beneficiary may adjust even if over 18, but under 21, because he or she enters as a child (of the K-1 beneficiary) rather than as a step-child of the petitioner.29 Courts have held that provided the K-2 beneficiary was admitted with K-2 status prior to turning 21, he or she may adjust even if unable to adjust status prior to turning 21.30

Advice

The adjudication process for a K-1 visa petition may vary, so petitioners and beneficiaries should take this into account when making future plans. As is the case with visa applications in general, it is wise to seek the assistance of an experienced immigration attorney for guidance through the K-1 and K-2 visa petitioning process. Generally, the main complications for a K-1 visa petition would stem from certain criminal convictions of the petitioner [especially for crimes covered in the Adam Walsh Act], if the petitioner had previously filed K-1 petitions for other intended beneficiaries, inadmissibility grounds for one or more intended beneficiaries, or circumstances in which the petitioner and beneficiary had not met in person within 2 years of filing the petition. In these scenarios, an experienced immigration attorney may assess the situation and determine if the petitioner and beneficiary have grounds to reasonably expect that the petition will be approved.

It is imperative that the petitioner and beneficiary marry within 90 days of the beneficiary's admission, otherwise the K-1 beneficiary and any K-2 beneficiary's will no longer have lawful status in the United States. K-1 and K-2 beneficiaries should immediately apply for adjustment of status after entering into marriage so that they can remain in lawful immigration status and obtain the benefits of conditional permanent residency. After two years have elapsed from the date of the marriage, the beneficiaries may apply to have the conditions removed from their status [see section]. In the event that the married couple is divorced before the beneficiary of the K-1 petition may adjust status, he or she should retain an experienced immigration attorney to assess if there is an available avenue for obtaining LPR status.

______________________

  1. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1031, citing 9 FAM 41.81 N6.2.
  2. Kurzban 1031
  3. Id.
  4. Citing for the list: Kurzban 1031
  5. Kurzban 1031, citing Matter of __, EAC 07-014-50957 (AAO Feb. 4, 2008)
  6. Citing for the case reference: Kurzban 1032
  7. Kurzban 1031, citing 8 C.F.R. § 214.2(k)(2); 50 FR 30011, 30013 (Aug. 10, 1988).
  8. Kurzban 1031, citing Matter of __ (AAO Jan. 2, 2009) [unemployment alone insufficient]; Matter of __ (AAO Feb. 28, 2003), reported in 80 No. 21 Interpreter Releases 750-51 (May 23, 2003).
  9. Kurzban 1031, citing Matter of __, EAC 07-119-50666 (AAO Feb. 4, 2008), reprinted in 85 No. 23 Interpreter Releases 1667 (June 9, 2008) [denial of extreme hardship overturned where petitioner could not travel fly to lung disease and beneficiary was denied a B-2 visa]; Matter of __, WAC 07-241-52293 (AAO Jule 28, 2008), reprinted in 85 No. 46 Interpreter Releases 3150-51 (Nov. 24, 2008) [petitioner could not travel due to probation and fiancé could not obtain visa to enter the United States].
  10. Kurzban 1031, citing for the section Memo, Aytes, Assoc. Dir. Domestic Operations, USCIS, HQOPRD 70/6.2.11 (July 21, 2006), published on AILA InfoNet at Doc. No. 06080164.
  11. Id.
  12. Kurzban 1032, citing 5 U.S.C. § 552a(b)(8)
  13. Kurzban 1032, citing Memo, Divine, Acting Deputy Director, HQOPRD 70/6.1.1 (May 3, 2006), published on AILA InfoNet at Doc. No. 06051563
  14. Kurzban 1031, citing 22 C.F.R. § 41.81(d)
  15. Pertains to the 3 year bar of inadmissibility. Please see our full article on the 3 and 10 year bars of inadmissibility to learn more.
  16. Kurzban 1032, citing 9 FAM § 41.81 N.9.1; 22 C.F.R. § 41.81(d)
  17. Kurzban 1032, citing INA § 214(d)(2)(A)
  18. Kurzban 1032, citing INA § 214(r)(4)(B)(i)
  19. Kurzban 1032, citing Memo, Aytes, Assoc. Dir. Domestic Operations, USCIS, HQOPRD 70/6.2.11 (July 21, 2006) at 2-3, published on AILA InfoNet at Doc. No. 06080164.
  20. Id.
  21. Kurzban 1035, citing 8 C.F.R. § 274a.12(a)(6)
  22. Kurzban 1035, citing Matter of Sesay, 25 I&N Dec. 431, 433, 437-38 (BIA 2011)
  23. Kurzban 1035, citing Matter of Sesay, 25 I&N Dec. 431, 433, 437-38 (BIA 2011) [K-1 beneficiary who married within 90 days, had child with petitioner, and divorced after more than 2 years of marriage but prior to final adjudication of AOS, may be granted AOS when AOS was pending outside of the 2-year CR period]; Choin v. Mukasey, 537 F.3d 1116 (9th Cir. 2008)
  24. Kurzban 1035, citing Q&A, USCIS Field Operations-AILA Meeting (Mar. 21, 2012), published on AILA InfoNet at Doc. No 12050847
  25. Kurzban 1035, citing Q&A, USCIS-AILA Meeting (Oct. 9, 2012), published on AILA InfoNet at Doc No. 12101045
  26. Kurzban 1035, citing INA § 248
  27. Kurzban 1035, citing INA § 245(d)
  28. Kurzban 1035, citing 8 C.F.R. § 214.1(c)(3)
  29. Kurzban 1035, citing 8 C.F.R. § 214.2(k)(6)(ii); Memo, Aytes, Assoc. Dir. Domestic Operations, HQOPRD AD07-04 (Mar. 15, 2007), published on AILA InfoNet at Doc No. 07040618
  30. Kurzban 1035-36, citing Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010); Matter of Le, 25 I&N Dec. 541 (BIA 2011)

RESOURCES AND MATERIALS:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1031-35, Print. Treatises & Primers.