Legal Requirements for a K-1 Fiancé Visa

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A fiancé visa will get you into the United States to get married. To be eligible for a fiancé visa, you do not have to intend to live permanently in the United States after your marriage. Whether you decide to stay in the United States and apply for a green card is up to you.

In fact, if you know in advance that you won’t be staying in the United States, however, you could apply for a tourist visa instead—but watch for changing your mind and deciding to apply for a green card right away, in which case you could be accused of having misused the tourist visa. You would then be denied the green card as a result.

In order to be eligible for a fiancé visa, the law requires that you:

• intend to marry a U.S. citizen,

• have met your intended spouse in person within the last two years (though this can be waived based on cultural customs or extreme hardship), and

• are legally able to marry.

We'll discuss all of these in more detail below.

You Must Intend to Marry

The requirement that you intend to marry might seem obvious -- you wouldn’t be applying for a fiancé visa if your plan was not to get married in the United States. But the U.S. government wants more than your assurance that a marriage is somewhere in your future. It will want proof that you’ve made actual plans, such as a place, a type of ceremony or proceedings (even if the proceedings are only in front of a judge), and more.

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If possible, make your wedding plans flexible. You can’t know exactly how long it will take to get the fiancé visa, but you’ll have to hold your wedding within 90 days of entering the United States. Before you sign any contracts for catering, photographic, or other services, discuss the situation with the service providers and build some flexibility into your contracts or agreements in case the date needs to change.

Your Intended Spouse Must Be a U.S. Citizen

In order for you to be eligible for a fiancé visa, the person that you plan to marry must be a U.S. citizen, not a permanent resident (a green card holder). A U.S. citizen is someone who either was:

• born in the United States or its territories

• became a citizen through application and testing (called naturalization), or

• acquired or derived citizenship through a family member. (Acquisition and derivation of citizenship are complex areas of the law. In general, however, people may acquire citizenship by being born abroad to one or two U.S. citizen parents; they may derive citizenship if they are lawful permanent residents first and one of their parents is or becomes a U.S. citizen.) See “U.S. Citizenship by Birth or Through Parents” for who exactly qualifies.

Unlike some other countries, the United States does not require that its citizens carry any sort of national identity card. People who are U.S. citizens may have different types of documents that prove their status, such as a birth certificate, a U.S. passport, or a naturalization certificate. .

If your fiance is only a permanent resident, he or she can petition to obtain permanent residency for you only after your marriage has taken place. A fiancé visa is not available to you at this time.

You Must Have Met in Person Within the Last Two Years

To protect against sham marriages, U.S. immigration law requires that fiance visa applicants have met in person within the last two years. Given how many couples fall in love over the Internet, or even through old-fashioned letter writing or arranged marriages, such a meeting may not always have happened between fiances. Couples who have not yet met, however, will need to make sure they do so at least once in the two years before applying for the fiancé visa. Even a brief meeting may be sufficient.

In some countries, prospective husbands and wives customarily do not meet before their wedding. If one or both of you come from a country where such a meeting would not be acceptable, you may find the meeting requirement a bit of a hurdle. Fortunately, if you provide documentation of the prevailing customs in your country, USCIS may overlook this requirement.

You Must Be Legally Able to Marry

Last but not least, to be eligible for a fiancé visa there must not be any legal barrier to your getting married. You may not have to provide anything at all to satisfy this requirement if you are an adult who has never been married before and you are not a blood relative of your fiancé. This requirement is mostly directed at couples in which:

• one person is under the age of consent

• one person has been previously married and needs to prove that that marriage was legally ended

• the two members of the couple are related by blood, or

• the two members of the couple are of the same sex and intend to get married in one of the states (or District of Columbia) that recognize same-sex marriage.

If one of you is under the age of 18, you are likely to be considered underage in the United States. Your legal ability to marry will depend on the laws of the state where you plan to get married. Each of the 50 U.S. states sets its own rules, and you will need to research them. For example, you may find that in one state you must be 18 years of age to marry, while in another you can marry younger if you can show the consent of your parents.

If you or your fiancé have been previously married, you will not be given a fiancé visa until you prove that that marriage was legally ended, perhaps by death, divorce, or annulment. This is usually easy to prove, by obtaining copies of records from the court or local civic records office. If your divorce or annulment took place overseas, the U.S. government will recognize it as long as it is recognized in the country where it took place, and as long as at least one of the divorcing parties had a residence in the place where the divorce took place.

If you and your fiancé are blood relations, your legal ability to marry will depend on the laws of the state where you plan to get married. You will need to research these rules. You’ll find that all states prohibit marrying your sister or brother (sibling), half sibling, parent, grandparent, great grandparent, child, grandchild, great grandchild, aunt, uncle, niece, or nephew. But some states have additional prohibitions, such as marrying your first cousin.

In a recent development due to the U.S. Supreme Court's striking down a discriminatory provision of the Defense of Marriage Act, U.S. citizens can now sponsor their same-sex fiancé for a visa. The requirements are the same as for any other fiancé visa, except that you and your fiancé must legally marry in one of the states that recognizes same-sex marriage. A civil union or domestic partnership will not (under USCIS policy as of early 2014) count as a "marriage" to fulfill the requirement that those entering the U.S. on a fiancé visa must marry within 90 days. Therefore, if you currently reside in a state that does not issue full marriage licenses to lesbian, gay, bisexual, and transgendered ("LGBT") couples, you must plan to travel to and legally marry in a state that DOES recognize same-sex marriage. However, it is not necessary that you make that state your home after you get married.

Need help researching marriage laws in the United States? See Nolo's “Marriage Requirements, Procedures, and Ceremonies FAQ.”

by: , J.D.

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