K-1 FIANCE VISAS - WHEN THE RELATIONSHIP GOES SOUR
Internet matchmaking services have never been more popular, particularly if you’re an American man looking for a foreign bride. Eager to find and marry the woman of their dreams, American suitors have been plunking down up to $10,000 for these services. These women in turn readily attend matchmaking parties in the hopes of winning a marriage proposal and a new life in America. Very frequently, the service works and matches are made. But the road to marital bliss is not always smoothly paved, particularly when dealing with US immigration. The process can often be fraught with difficulty and headaches, if not heartaches, particularly for the K-1 blushing brides-to-be.
Gaining Legal Entry into the US
Once a couple decides to marry, it is the US Citizen Petitioner's responsibility to handle the first step of the bride’s legal entry into the United States. The petitioner submits a Fiance Visa Petition to the U.S. Citizenship & Immigration service (USCIS) by filing form I-129F with supporting documentation.
The fiancé visa petition process is governed by section 101(a)(15)(K)(i) of the Immigration Act and by the federal regulations at 8 CFR 212.1(h), 214.2 (k) and 248.1(a). With the striking down of the Defense of Marriage Act by the US Supreme Court, same sex couples may now also petition for their loved ones abroad. For the fiancé to begin the immigration process he or she must be the beneficiary of an approved K-1 visa petition.
This process is relatively easy and averages about six months to process.
Petitioning the US Consulate
The second step falls to the beneficiary of the visa petition and can be quite a bit more daunting and time consuming. The beneficiary must apply for an entry visa at his or her local U.S. consulate. U.S. consular officers closely scrutinize both the visa application and the applicant for any indication of fraud or other serious misconduct, such as evidence of human trafficking. From there, beneficiaries face serious delays in processing due to post-9/11 security concerns and an influx of visa petitions, particularly at the U.S. consulate in Moscow, Manila and Bangkok. Thus, long waits for an entry visa can doom an already tenuous relationship.
"Getting to ‘I DO’"
Assuming the Petition is approved and the fiancé is granted a visa from the consulate, he or she has a mere 90 days upon entering the U.S. to marry the Petitioner. If they do not marry within the appointed time, the beneficiary must depart the U.S., as he or she is no longer in lawful non-immigrant status. Only one U.S. court has stated that a 90-day period can be waived and even then it was only because circumstances beyond the control of the parties made marriage impossible in the 90-day time frame.
Failure to depart in a timely fashion subjects the beneficiary to removal by the government and can jeopardize future immigration opportunities because of the 3 and 10 year bars against re-entry which come into play for visa overstays under INA 212(a)(9)(B).
If the couple does not marry within the appointed time, the beneficiary must leave the U.S. since he or she is no longer a lawful non-immigrant. Failure to depart in a timely fashion subjects the beneficiary to removal by the government and can jeopardize future immigration opportunities. In fact, U.S. immigration law bars re-entry for 3 to 10 years as punishment for visa overstays.
What if the relationship goes sour?
Unfortunately, immigration can be especially tough on the beneficiary if the relationship, which serves as the basis for the K-1 visa, ends without marriage. If the beneficiary chooses to embark on a new life in the U.S. on their own, with a new partner, or with assistance of a U.S. employer willing to sponsor the beneficiary for a visa, USCIS has not been very receptive. Federal regulations prohibit a fiancé
visa holder from changing or extending their K-1 status except through the original K-1 petitioner. A beneficiary will not be able to obtain a green card except through marriage to the original petitioner.
Many intending beneficiaries fail to appreciate the grave consequences of this law and its impact is exacerbated as time passes. Notwithstanding the beneficiary's desire to remain in the U.S. and begin a new life, or the fact that he or she has been an exemplary person since entering, has friends, is learning the language, attends a local church and is not a threat to American society, he or she may not remain here legally and obtain permanent residency, except through marriage to the original petitioner. The sole exception to this restrictive provision is found in the Violence Against Women Act (VAWA).
Are there other options?
With no option for residency except marriage to the original sponsor, a beneficiary who’s petitioning American fiance is no longer supportive of him or her finds that their alternatives are few to none. Furthermore, no law requires petitioners to provide the beneficiary with a return ticket home or any other financial assistance should things go awry between them. Also, if the petitioner chooses, he or she can file and obtain a K-1 visa for another prospective spouse. While USCIS has placed a limit on the number of petitions a US Citizen may file, to the original beneficiary, this is little consolation.
While the fiance visa process on its face may be an appealing option for both the petitioner and beneficiary the foreign beneficiary may very well find themselves facing an unsympathetic immigration system upon entry; a system designed to facilitate only one thing – their marriage to the original petitioner, without regard to the realities facing many couples, particularly when expectations of marital bliss come crashing down.