K-1: Immigrant or Non-Immigrant Visa?

By Richard T. Herman, Esq. Reviewed by Richard T. Herman

Understanding the K-1 Fiancé Visa

The K1 Fiancé Visa is confusing. Many people get mixed up information from friends, family or even online about whether it’s an immigrant or non-immigrant visa.

The K1 Fiancé Visa is one of the most special visas in the U.S. immigration system. Officially it’s a nonimmigrant visa, it allows foreign nationals to enter the U.S. to marry a U.S. citizen within 90 days of arrival.

But its process and purpose is different from other non-immigrant visas so it’s considered a hybrid visa (has both non-immigrant AND immigrant visa features). Below we’ll go into the characteristics that make it a hybrid.

The Basics: Immigrant vs. Non-Immigrant Visas

Immigrant Visa (IV):

Purpose: For individuals who want to live permanently in the United States.
Examples: Family-sponsored visas, employment-based immigrant visas, Diversity Visas.
Key Characteristic: Shows “immigrant intent” – the desire to become a permanent resident.

U.S. immigration law governs the regulations and requirements for immigrant visas.

Non-Immigrant Visa (NIV):

Purpose: For individuals coming to the U.S. for a temporary reason.
Examples: Tourist visas (B2), student visas (F1), work visas (H1B), medical treatment.
Key Characteristic: No “immigrant intent” – only temporary residency for a specific purpose and time frame.

Where Does the K1 Fit?

Official Classification: Non-Immigrant Visa

The K-1 Fiancé Visa is classified as a non-immigrant visa by the U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS). The Department of Homeland Security (DHS) plays a crucial role in the classification and evaluation of K-1 visa applications.

This is based on its characteristics:

1. DS-160 Form

Non-Immigrant Application Form: K1 applicants must file the DS-160 form, the same form used for tourist (B1/B2), student (F1) and other non-immigrant visas.
Purpose: The DS-160 form is for the 90 day temporary stays in the U.S. which aligns with the K1’s purpose: to allow entry for marriage within a specific time frame.
No need to use the CEAC portal to submit documents, as required for spousal immigrant visas (CR-1/IR-1).

2. Limited Duration

90-Day Window: The K1 visa holder must marry the U.S. citizen petitioner within 90 days of arrival or leave the U.S. If they don’t get married within this timeframe the visa is invalid.
Temporary Status: The visa doesn’t confer permanent residency directly, which is why it’s non-immigrant.

3. I-134 Affidavit of Support

The I-864 Affidavit of Support used for immigrant visas is not used for K1 visas. Instead the I-134 Affidavit of Support is used, which typically applies to non-immigrant visas, such as F-1 student visas. A consular officer evaluates the I-134 Affidavit of Support to ensure the applicant has adequate financial support.

How is the K1 different from a Non-Immigrant Visa (e.g., B1/B2)?

Unlike tourist or other temporary visas:

More steps and requirements.
Transitions to permanent residency (not non-immigrant visas).
Police clearances, medical exams, financial affidavits.

Why It’s Treated Like an Immigrant Visa

Although it’s a non-immigrant visa, the K1 process has several elements that are typical of immigrant visas. These requirements are because of the visa’s ultimate purpose: to transition to permanent residency after marriage.

1. Immigrant Medical Exam

Medical Exam: K1 applicants must have a medical exam similar to the one for immigrant visa applicants. This includes:
Screening for communicable diseases (e.g. tuberculosis).
Required vaccinations.
Review of medical history.
Purpose: Although the K1 is temporary, the medical exam is to ensure the applicant is fit for eventual permanent residency. But the full vaccination panel is not required for the K1 but is required for the immigrant visa/green card.

2. Police Clearance Certificates

Requirement: K1 applicants must provide police clearance certificates from any country where they have lived for more than six months after the age of 16.
Comparison to Non-Immigrant Visas: This is not a requirement for other non-immigrant visa categories like B1/B2 or F1 visas, so it’s a K1 unique.

3. Processed Through Immigrant Visa Units

Consular Processing: U.S. Embassies and Consulates process K1 visas through their Immigrant Visa Units, not their Non-Immigrant Visa sections.
Reason: Because the visa’s purpose is to transition the applicant to a green card after marriage.

4. Post-Visa Transition to Permanent Residency

Adjustment of Status (AoS): After marrying within the 90-day period, the K1 visa holder must file Form I-485 to apply for permanent residence and obtain a green card. This step aligns the K1 visa with immigrant pathways as it allows for permanent residency.
Intent: Unlike other non-immigrant visas which assume the applicant will go back to their home country, the K1 visa assumes eventual settlement in the U.S.

Confusion: Foreign Citizen Fiancé

The Department of State has the K1 visa as an immigrant visa, while the Customs and Border Protection (CBP) website lists it as non-immigrant but links to immigrant visa resources.

The K-1 visa permits the foreign-citizen fiancé(e) to enter the United States for the purpose of marriage within 90 days.

Policy Implications:

During COVID-19, presidential proclamations and travel bans created confusion about how K1 visas were being processed. Knowing its classification helps with eligibility and processing times.

Eligibility and Requirements

To be eligible for a K-1 visa, both the foreign citizen fiancé(e) and the U.S. citizen sponsor must meet specific criteria. These requirements ensure that the couple is genuinely intending to marry and that the foreign citizen fiancé(e) can legally enter the United States. Here are the key eligibility requirements:

U.S. Citizenship: The sponsor must be a U.S. citizen.
Foreign Citizenship: The fiancé(e) must be a foreign citizen.
In-Person Meeting: The couple must have met in person at least once within the past two years, unless an exception is granted due to extreme hardship or cultural reasons.
Intent to Marry: The couple must intend to marry within 90 days of the foreign citizen fiancé(e)’s arrival in the United States.
Legal Freedom to Marry: Both individuals must be legally free to marry, meaning they are not currently married to someone else and are not closely related by blood.
Income Requirements: The U.S. citizen sponsor must meet the income requirements, which are 100% of the Federal Poverty Guidelines for a household of two.

Meeting these requirements is crucial for the successful approval of the K-1 visa application.

Documentation and Evidence

When applying for a K-1 visa, the U.S. citizen sponsor and the foreign citizen fiancé(e) must provide a variety of documents and evidence to support their application. Proper documentation is essential to demonstrate the legitimacy of the relationship and the couple’s intent to marry. Here’s what you’ll need:

Form I-129F: A completed Petition for Alien Fiancé(e).
U.S. Citizen Sponsor’s Passport: A copy of the sponsor’s passport.
Foreign Citizen Fiancé(e)’s Passport: A copy of the fiancé(e)’s passport.
Proof of Relationship: Evidence such as photos, letters, emails, and other communication records.
Proof of Intent to Marry: Documents like a wedding invitation or a letter from the couple explaining their marriage plans.
Income Proof: The U.S. citizen sponsor’s tax returns, pay stubs, and other financial documents to prove they meet the income requirements.
Medical Examination Report: A report from an authorized panel physician confirming the foreign citizen fiancé(e) has undergone the required medical examination.

Having all these supporting documents all ready and organized will help streamline the visa application process.

Rights and Protections

As a K-1 visa holder, the foreign citizen fiancé(e) is entitled to certain rights and protections. These are designed to ensure their well-being and provide a clear path to permanent residency. Here are some of the key rights and protections:

Entry for Marriage: The right to enter the United States for the purpose of marrying a U.S. citizen within 90 days.
Work Authorization: The right to apply for a work permit, allowing the fiancé(e) to work in the United States.
Green Card Application: The right to apply for a green card after marrying the U.S. citizen sponsor, leading to permanent residency.
Protection from Abuse: Protection from domestic violence and abuse, including the right to apply for a green card independently of the U.S. citizen sponsor if necessary.

These rights, immigration benefits and protections are in place to support the foreign citizen fiancé(e) as they transition to life in the United States.

Ineligibilities and Restrictions

Certain factors can make an individual ineligible for a K-1 visa or impose restrictions on their eligibility. It’s important to be aware of these to avoid potential issues during the application process. Here are some common ineligibilities and restrictions:

Criminal Convictions: Individuals convicted of certain crimes, such as domestic violence or child abuse, may be ineligible.
Immigration Fraud: Those found to have committed immigration fraud or misrepresentation.
Unlawful Status: Individuals currently in the United States in an unlawful status.
Previous Deportation: Those who have been previously deported from the United States.
Communicable Diseases: Individuals with communicable diseases, such as tuberculosis.
Mental or Physical Disorders: Those with a physical or mental disorder that poses a threat to themselves or others.

Understanding these ineligibilities and restrictions can help applicants determine their eligibility and address any potential issues before applying.

Note: The information provided is general in nature and may not apply to every individual’s situation. It is recommended that individuals consult with an immigration attorney to determine their eligibility for a K-1 visa and to ensure they meet all the requirements.

Why Does This Matter?

Understanding the K1 hybrid is important for:

1. Applicants

Clear Expectations: Knowing the visa is temporary but has immigrant-like requirements.
Preparation: Having all necessary documents (medical exams, police clearances) ready to avoid delays.

2. Consular Processing

Scheduling Interviews: Many consulates list the K1 visa under immigrant visa categories in their appointment scheduling systems.
Requirements: Knowing the visa’s unique nature can help with preparation and reduce confusion.

3. Legal

Presidential Proclamations: Policies on travel bans, vaccines and prioritization can vary based on the visa type.

K1 Process Steps

File I-129F petition with USCIS.

This takes 5 to 12 months. After USCIS approves the I-129F petition it goes through several stages:

NVC and DOS

The petition is transferred from USCIS to NVC and then to the U.S. Embassy or Consulate in the beneficiary’s country.
Timeline: Unpredictable, can take weeks to months.

I-129F Validity Period

USCIS gives the I-129F petition a 4 month validity period. But the U.S. Embassy or Consulate will automatically extend it if there are delays.

File DS-160 and schedule interview

Prepare for Next Steps

While waiting for the interview:

Read the IMBRA Pamphlet
Understand your rights under the International Marriage Broker Regulation Act (IMBRA). Learn more here.
Make sure Health Requirements Are Met
Get vaccinated.
Consider a pre-medical checkup to address any potential issues like STDs or tuberculosis.
Get Police Clearances
Get police clearance certificates from any country where you’ve lived for more than 6 months after you turned 16. Check requirements here.
File Taxes
Make sure your most recent tax returns are complete. These will be reviewed in the I-134 Affidavit of Support.
Check Passport Validity
The beneficiary’s passport must be valid for at least 6 months beyond the interview date. Renew it if needed.

Enter the U.S.

After visa approval, the fiancé(e) enters the U.S. and must marry the petitioner within 90 days.

Adjustment of Status

File Form I-485 to get a green card and become a permanent resident.

Quick Facts

K1 Fiancé Visa is a non-immigrant visa but treated like an immigrant visa.
Knowing its hybrid nature will help you understand the requirements and expectations.
Consulting with an immigration attorney will clarify the steps, prevent mistakes and give you support throughout the process.

What is FAQ?

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What is FAQ?

1. Is the K-1 Fiancé Visa a Non-Immigrant or Immigrant Visa?

The K-1 Visa is classified as a non-immigrant visa because it uses Form DS-160 and the intent at entry is temporary—to marry a U.S. citizen within 90 days. But it behaves like an immigrant visa because the ultimate goal is for the foreign fiancé(e) to stay in the U.S. and adjust to permanent residency after marriage.

2. Why is the K-1 Visa a “Hybrid Visa”?

The K-1 is called a hybrid visa because:
i. It’s filed as a non-immigrant visa.
ii. It requires procedures of immigrant visas (medical exams, police clearances and consular processing by Immigrant Visa Units).
iii. It transitions to permanent residency after marriage through adjustment of status (AoS).

3. Why does the K-1 Visa use the Non-Immigrant Form DS-160?

Form DS-160 is the application for temporary non-immigrant visas. Since the initial purpose of the K-1 Visa is temporary entry into the U.S. (marry within 90 days) it uses this form.

4. Why Do I Need a Medical Exam for the K-1 Visa?

Although it’s a non-immigrant visa, the K-1 requires an immigrant-style medical exam to:
i. Screen for communicable diseases (e.g. tuberculosis).
ii. Ensure vaccination compliance.
iii. Prepare the applicant for adjustment of status to a green card.

5.Do K-1 Applicants Need Police Clearance Certificates?

Yes, police clearance certificates are required for the K-1 Visa. Applicants must provide clearances from all countries where they have lived for more than six months after the age of 16. This is the same requirement for immigrant visas.

6. How is the K-1 process different from other non-immigrant visas?

Unlike other non-immigrant visas the K-1 process includes:
i. Filing Form I-129F with USCIS.
ii. Processing through the National Visa Center (NVC) and U.S. Embassy’s Immigrant Visa Unit.
iii. A detailed medical exam and police clearance.

7. Why can’t I schedule my K-1 interview in the non-immigrant visa system?

The K-1 Visa is managed by the Immigrant Visa Unit at U.S. Embassies and Consulates. You must select “immigrant visa” in the online scheduling system to access the K-1 option.

8.Why is the K1 in both visa categories?

i. On many scheduling platforms selecting “non-immigrant visa” will not show the K1 option. You must select “immigrant visa” to proceed.
ii. This dual classification reflects the visa’s hybrid nature: non-immigrant in form but immigrant in intent.

9.Can I schedule my interview through the non-immigrant visa system?

No. The K1 requires an interview scheduled through consulates with Immigrant Visa Units.
Example:

i. Brazil: Only the consulate in Rio de Janeiro processes K1 visas.
ii. Canada: K1 visas are only in Montreal.
iii. Philippines: K1 visas are processed in Manila.

10. Can I choose any embassy or consulate for my interview?

No. The K-1 Visa interview must be at a U.S. Embassy or Consulate with an Immigrant Visa Unit. Examples:
i. Brazil: Only Rio de Janeiro processes K-1 visas.
ii. Canada: Only Montreal processes K-1 cases.
iii. Philippines: K-1 visas are only in Manila.

11.Are there additional medical requirements during AoS?

Yes, if certain vaccinations or tests were not completed during the initial medical exam they must be completed during the adjustment of status process.

12. Why is the K-1 treated as an immigrant visa?

Although classified as non-immigrant, the K-1 requires procedures similar to immigrant visas. This dual nature often causes confusion during application and processing.

13. What if my embassy misclassifies my K-1?

If issues arise:
i. Contact the embassy or consulate.
ii. Consult an immigration attorney.

The K-1 Fiancé Visa is a non-immigrant visa but has immigrant-like processes. Knowing its dual nature will help you prepare for the journey from fiancé(e) to permanent resident, and make the process easier.