AK-1 fiancé(e) visa allows you to enter the US, and it buys you some time (90 days, to be exact) to stabilize your immigration status. Marrying your US citizen partner, however, is not the end of the story — you are still going to need to change your status to permanent resident in order to remain in the US long-term. That is going to require a considerable amount of paperwork and meticulous preparation.
The Battle of the Forms
Folders / Forms
Following is a list of documents that you may need to adjust your status from fiancé(e) visa to permanent resident. Some of them are mandatory for everyone, and some are needed only under certain circumstances.
- Form I-485, Application to Register Permanent Residence or Adjust Status. This is the main petition needed to apply for permanent residence.
- Form I-864, Affidavit of Support Under Section 213A of the Act. You will need this affidavit of support even though a similar form, Form I-134, was submitted during your fiancé(e) visa application process.
- Form I-765, Application for Employment Authorization, if you wish to work prior to the issuance of your green card.
- Form I-131, Application for Travel Document., if you plan to leave the US while your green card application is pending. Without it, your I-485 will be considered abandoned the moment you leave the US.
- Form I-693, Report of Medical Examination and Vaccination Record. You only need this if your previous medical examination (for your fiancé(e) visa) is over one year old, or if your previous medical exam uncovered a Class A medical condition. You might also need a vaccination record (Form DS-3025).
- G-1450, Authorization for Credit Card Transactions, if you are paying the filing fee by credit card.
Supporting Documents
Supporting Evidence / Documents
You will need the following supporting documents to adjust status from fiancé(e) visa to permanent resident:
- A certified copy of your birth certificate (long form), accompanied by a certified translation if your birth certificate is not written in English.
- A copy of your passport’s biographical information page, plus a copy of the passport pages containing your fiancé(e) visa and your US entry stamp (these might both be located on the same page)
- A copy of your I-94 Arrival/Departure Record that you received when you entered the US. If you lost it, it is available online.
- A copy of the USCIS Approval Notice for your fiancé(e) visa petition.
- A certified copy of your marriage certificate.
- At least two color passport-style photographs of you (you will need a total of four photographs if you are applying for a work permit). These must be prepared in accordance with USCIS specifications.
The USCIS may request additional documentation, depending on your circumstances (and perhaps on the political climate at the time).
Filing
You will need to mail the application packet (the forms plus your supporting documents) to the USCIS Chicago Lockbox. You can expect to receive a Receipt Notice in the mail within a few weeks. Afterward, you might receive a Request for Evidence (RFE), which you will need to respond to promptly.
The End Game
Bio-metrics – Fingerprint
Several weeks or even several months after you submit Form I-485 you will be scheduled for fingerprinting, probably at the USCIS office nearest you.
The Conditional Permanent Residence Interview
After you are fingerprinted, an in-person interview with the USCIS will be scheduled. You will be notified of the date well in advance, and the USCIS will send you a list of documents to bring with you. This list will include evidence of the bona fide nature of your relationship (photo, correspondence, evidence of a joint bank account, etc.).
At the interview, the officer will inspect the documents you brought with you and ask you some questions. The questions will be mainly designed to determine whether your marriage is legitimate, or entered into for the sole purpose of obtaining immigration benefits. If the interview is successful, you will receive your green card in the mail within a few weeks.
Since you will have been married less than two years by the time your interview takes place, you will receive something called a “conditional permanent residence.” What this means is that at this point, your green card is not really permanent, but only valid for two years.
The Unconditional Permanent Residence Interview
Within 90 days before your conditional permanent residence expires, you will need to apply to have the “condition removed.” You will need to file additional paperwork and attend another interview, this time together with your spouse. If the interview is successful, your “unconditional permanent resident” green card will be approved. Only then will you become a permanent resident of the US.
If you have divorced during the two-year period and your spouse is not willing to accompany you, you might be eligible for a waiver that would allow you to appear at the interview alone.
Fiance visa fraud is more common than marriage-based green card fraud for a number of reasons — because fiancé(e) visas are processed more quickly, because it is easier to establish a legitimate engagement relationship than a legitimate marriage relationship, and because it is easier to simply fail to marry a fiancé(e) than to divorce a spouse. Regardless of the reasons, however, the USCIS has been scrutinizing fiancé(e) visa relationships more closely in recent years.
In light of this increased scrutiny, it is a good idea to prepare your fiancé(e) visa petition more carefully than you would have had to a few years ago, so as to avoid a false accusation of fraud. An accusation like this can not only result in a visa refusal, it could also result in the denial of future immigration benefits that you may otherwise be entitled to.
Red Flags for Fraud
Red Flag
The determination of fraud is largely subjective, and therefore a matter calling for the use of discretion by the USCIS. In many cases, fraud is suspected due to a combination of the following factors:
- The non-citizen partner comes from a country with high rates of immigration fraud.
- The US citizen partner is in a difficult financial situation (thereby tempting him to make money through immigration fraud)
- A large age difference between the partners
- Lack of a common language
- Religious differences, especially if both partners are devout followers of their respective religions
- Large differences in educational attainment, especially if the non-citizen partner is the one with low educational attainment or if the male partner is far less educated than the female partner
- One or both partners hasn’t told their family about the relationship
- The US partner has sponsored other partners for a fiancé(e) or marriage visas before
- The evidence for the relationship (correspondence, photos, etc.) appears slapdash and hastily put together
Countries High on the USCIS Fraud List
Flags
Unfortunately, which country your fiancé(e) is from matters when you sponsor a fiancé(e) visa because immigration fraud is disproportionately prevalent among the citizens of certain countries. Of course, there is no country in the world for which most visa applications are fraudulent. Nevertheless, the countries on the USCIS watch list include (in alphabetical order):
- China
- Ghana
- India
- Kenya
- Mexico
- Morocco
- Nigeria
- Pakistan
- Philippines
- Yemen
Citizens of countries such as Syria and Venezuela might also experience increased scrutiny because difficult conditions in those countries might motivate some to commit immigration fraud.
Possible Penalties if the Accusation Sticks
No Entry Sign
If the USCIS suspects fraud before your fiancé(e) enters the US, the most likely penalty is a simple refusal of your visa petition. You might not even be told directly that fraud is suspected. If fraud is established (rather than merely suspected) after your fiancé(e) enters the US, the following penalties could be imposed:
- Deportation
- Ban from re-entering the US
- Ineligibility for naturalization to US citizenship
- Revocation of permanent residence (green card)
- Criminal penalties (for a US citizen who participates in immigration fraud)
Keep in mind that in order to pursue penalties beyond the mere rejection of a visa petition, immigration authorities must prove their case against you. It is considerably more difficult to convict someone of a criminal offense than it is to impose a civil penalty such as deportation.
Professional Assistance Could be Critical to Your Chances for Success
Back in the days when 99 percent of all fiancé(e) visa petitions were approved, it was not really necessary to seek legal assistance for the preparation of a fiancé(e) visa petition unless special circumstances applied — one partner had a criminal record, for example. These days, with approval rates at about 66 percent and perhaps set to fall further, professional legal assistance might very well make the difference between success and failure.
Following are the steps necessary to apply for a fiancé(e) visa:
Step 1: Your Sponsorship Application
Petition for Alien Fiancé(e) – Form I-129F)
- Assemble the following documents:
- Form I-129F (K-1 visa application form)
- Copy of your birth certificate, certificate of naturalization or passport to prove your citizenship.
- Copy of your fiancé(e)’s passport
- Proof that your relationship is legitimate (not a sham entered into for immigration purposes)
- Proof that you have met each other in person at least once during the past two years.
- A sworn statement describing your relationship and affirming that you intend to marry within 90 days of arriving in the US. Both partners must sign this statement.
- A copy of any Form I-94 that was issued to your fiancé(e), if your fiancé(e) has ever entered the US before.
- A passport-style photo of each of you.
- Sign Form I-129F and submit it to the appropriate USCIS office based on your residence, along with a $535 filing fee.
- Wait for the USCIS to send you a receipt notice (within a month of the submission date).
- Respond to any Request for Evidence that the USCIS might send you.
- The USCIS will send an Approval Notice in about 7 months (processing times may vary).
Step 2: Applying for a Nonimmigrant Visa
K-1 Non-immigrant Visa
- Your fiancé(e) will receive a letter from the nearest US embassy or consulate in his or her home country, scheduling a visa interview four to six weeks later and listing the documents your spouse must bring to the interview.
- Your spouse must complete Form DS-160 (K-1 visa form), submit it online and print the confirmation page.
- Your fiancé(e) must obtain police clearance certificates for every jurisdiction he or she has lived for more than six months since age 16 to prove that he or she has never been in trouble with the law.
- Your spouse must complete a medical examination with a doctor approved by the US State Department. The cost should be around $200, and the doctor will issue the results to your fiancé(e) in a sealed envelope.
- You must complete Form I-134, Affidavit of Support, sign it, and provide it to your fiancé(e). Keep a copy for yourself.
- Provide your fiancé(e) with a copy of the I-129F filing package and a copy of your most recent tax returns.
- Your spouse must (i) go to the US embassy or consulate where the visa interview will be held, (ii) pay the filing fee of $265 (payment timing and method might vary by country, however). (iii) bring his or her passport, birth certificate, two passport-style photos, police clearance certificates, and medical exam results and (iv) attend the interview.
- The officer will probably make a decision on your fiancé(e)’s application right after the interview. If that happens, your fiancé(e) might receive a nonimmigrant visa immediately. In some cases, a decision is delayed, and the officer might require you to submit additional documentation to the embassy or consulate.
- Once your fiancé(e)’s nonimmigrant visa is issued, he or she will have four months from the I-129F approval date to enter the US.
- After arrival in the US, your fiancé(e) will have 90 days to marry you and submit an adjustment of status application. If this does not happen, your fiancé(e) must leave the US at the end of 90 days. A fiancé(e) visa cannot be extended, it cannot be transformed into any other type of visa, and your spouse cannot use it to marry anyone but you.
- Don’t wait until the end of the 90-day period is approaching to marry. Marry early enough to allow your fiancé(e) to apply for permanent residence, and for the USCIS to issue a receipt notice before the 90 days expire.
Be meticulous. A mistake on any of these steps could result in significant delays or even the outright rejection of your petition.
Marriage to a US citizen is one of the surest and most popular ways of obtaining permanent residence in the United States. Marriage to a US permanent resident is also a popular and effective way to immigrate, although significant delays are likely. For most people, the greatest difficulty in immigration through marriage is not qualifying in the first place, as might be the case for an EB visa, but organizing the application and assembling the paperwork.
Fiancée Visa versus Marriage “Green Card”: Which is Better?
Fiancée Visa vs Marriage “Green Card”
The fiancée (K3) visa is one way to immigrate through marriage from outside the US. It is available to fiancees of US citizens. A fiancee visa allows you to enter the United States for a 90-day period of stay.
Once you entered, you have 90 days to either marry your partner or leave the US. Of course, if you are already in the US and you seek merely to adjust your status to permanent resident, you don’t need a fiancee visa.
The advantages of a fiancee visa include:
- You might be able to enter the US faster with a fiancee visa (typically in six or seven months) than by waiting for the USCIS to approve an I-130 petition filed by your partner on your behalf.
- You can get married in the US if that is what you prefer.
- If you are a same-sex couple and you live in a jurisdiction where same-sex marriage is illegal, a fiancee visa might be your only way of immigrating to the US through marriage.
The disadvantages of a fiancee visa include:
- Fiancée visas are issued only to fiancees of US citizens, not to fiancees of permanent residents
- You may need concrete wedding plans, along with evidence of these plans, to convince a US embassy or consulate abroad to issue you a fiancee visa.
- Total filing fees are several hundred dollars higher when you immigrate through a fiancee visa rather than a marriage-based immigration visa, mainly because there is a $1,140 fee needed to adjust your status to permanent residence after you enter the US.
Adjustment of Status vs. Consular Processing
U.S. Embassy Sign
The process for obtaining marriage-based permanent residence in the US differs according to whether you are located inside or outside the US:
- If you are located in the US, your spouse should file Form I-130 (Petition for Alien Relative) on your behalf, and you should file Form I-485 (Application to Register Permanent Residence or Adjust Status) with the USCIS. In most cases, both of these applications can be filed at the same time.
- If you are located outside the US, your application will be handled by the National Visa Center, and you will have to appear at a US embassy or consulate at your place of residence. It generally takes a few months longer to receive approval by consular processing than by adjustment of status inside the US. If your spouse is a permanent resident holder, consular processing might even add a year or two to your wait time.
Proving a “Bona Fide” Marriage
Marriage Certificate Signature
To be issued a green card based on marriage, you must establish that your marriage is “bona fide.”
You can prove the bona fide nature of your relationship in more than one way:
- A valid marriage certificate, of course, is a required component of your application.
- You will have the opportunity to demonstrate the bona fide nature of your marriage in the I-130 petition by, for example, submitting wedding photos, photos of you and your spouse together, photos of you and your spouse together with in-laws, correspondence between you and your spouse, joint bank account statements, etc.
- You and your spouse may be interviewed either together or separately in an attempt to determine whether your marriage is bona fide. That’s when you might be asked personal questions such as “What color is your wife’s toothbrush?” If you are asked this question while being interviewed separately, you can be confident that your wife will also be asked the color of her toothbrush, and that your answers will be compared to see if they match.
Request for Evidence, Notice of Intent to Deny
In many cases, marriage-based immigration applicants will receive a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) after submitting the immigration petition. These two documents are quite different:
Request For Evidence
- It is not at all unusual to receive an RFE (the National Visa Center calls it a “checklist letter”) a few months after the immigration petition is submitted. The matter is often routine — you forgot you include a required element of your application, or you included a photocopy of your birth certificate instead of a certified copy, for example. You must respond promptly, and you only get one chance to respond.
- It is a serious matter to receive a NOID, because it means that the problems with your application are so serious that it will be denied unless you submit enough evidence to change the examiner’s mind. It might mean, for example, that the USCIS doubts that your marriage is bona fide. If you fail to respond within 30 days, your application will be rejected. NOIDs are typically issued after both spouses are interviewed.
US Citizen Petitioners Who Reside Abroad
U.S. Citizenship and Immigration Services If you live abroad with your spouse, if you intend to file an I-130 petition so that your spouse can return to the US with you as a permanent resident, and if you do not wish to return to the US simply to file the petition, you have the following alternatives available to you:
- File the petition with a USCIS office located abroad;
- If you live in a country that does not have a USCIS office, you can mail your petition to the USCIS Chicago Lockbox.
- Under special circumstances, you might be able to convince a US embassy or consulate to accept your petition. It is unusual for such a request to be granted, however — generally, US embassies and consulates do not accept I-130 petitions.
Same-Sex Marriages
Two men Holding hands at same-sex marriage
If you are married to a same-sex partner, you are eligible for immigration benefits on the same terms as opposite-sex spouses, regardless of whether you live inside or outside the US. Nevertheless, certain immigration difficulties are encountered by same-sex couples for more often than opposite-sex couples:
- Although the US recognizes same-sex marriages as legitimate, many countries do not. One way in which this lack of recognition can affect your immigration application is that if you cannot marry your partner because same-sex marriage is illegal in your jurisdiction, you cannot enter the US on a marriage-based immigration visa. In this case, your best bet would probably be to apply for a fiancée visa that would allow you to enter the US and marry there.
- In many countries, it is socially disadvantageous and even dangerous to live as an openly gay couple. Consequently, gay couples may lack relationships with their in-laws, they may have avoided establishing joint bank accounts, etc. This could make it difficult to prove to US immigration authorities that your marriage is “bona fide.”
Notice of Intent to Revoke
Revoked Illustration
A Notice of Intent to Revoke (NOIR) is a notification from the USCIS that it intends to revoke an already-approved I-130 immigration petition. The USCIS will do this (even if your petition was originally handled by the National Visa Center) if it discovers information after the approval that indicates you are not eligible to immigrate.
This is bad news, even if you fight back and eventually prevail because at the very least it will subject you to substantial delays.
The NOIR will list the reasons for the intended revocation, which might include:
- It suspects marriage fraud. This may happen in response to a bad visa interview.
- The US petitioner is ineligible to sponsor you for immigration. This may happen, for example, if your sponsor is suddenly fired and consequently lacks the financial resources to support you.
- You are ineligible to immigrate based on marriage because, for example, you are still legally married to a previous spouse.
- The USCIS made a mistake.
You will need to respond with new, persuasive evidence within 30 days to avoid revocation.
Marriage Fraud
Marriage Fraud Elements
To qualify for marriage-based immigration benefits, your marriage must be bona fide. “Bona fide” means that (i) your marriage is legal in the jurisdiction in which it took place, as well as legal under US law (polygamous marriages are not recognized, for example); and (ii) you married with the intention of building a life together, as opposed to marrying primarily for immigration purposes.
That doesn’t mean that immigration benefits may not have figured into your decision to marry — it’s OK if immigration was a factor, it’s just that your marriage will not be considered bona fide if it was entered into primarily for immigration benefits. A marriage that is not bona fide is considered fraudulent for immigration purposes.
If US immigration authorities determine that you committed marriage fraud, your petition will be denied or revoked, you may lose access to future immigration benefits, and in extreme cases, you may even be criminally prosecuted.
Inadmissibility: General Fraud, Criminal, Public Charge, etc.
Immigration Fraud is a Crime
When you seek marriage-based immigration benefits, US immigration authorities are interested in more than just the legitimacy of your marriage. You can be found “inadmissible” to the US for a variety of reasons, including but not limited to:
- Health reasons such as drug addiction, certain mental illnesses, and failure provide proof that you have been vaccinated;
- Certain criminal offenses;
- Membership in the Communist Party (sometimes);
- Previous immigration law violations;
- Lack of a valid passport; and
- Lack of proof of sufficient financial support.
Among the foregoing grounds, the last item is the one that trips up applicants for marriage-based immigration most often. The US petitioner must submit an Affidavit of Support (Form I-864) to the USCIS. Your application can be denied if his or her income fails to meet the minimum standard, and you can be denied entry into the US, even with a valid visa, if new information shows that you lack sufficient income to avoid relying on public funds while in the US.
The appeal of I-130 Denial
If you believe that US immigration authorities are convinced that your marriage is fraudulent, and if you do not believe that you have enough evidence to prove otherwise, appealing a denial might get you into even more trouble, especially if you reside in the US.
On the other hand, if your marriage is legitimate and you believe you can prove it, failing to challenge a denial could leave you worse off by restricting your future immigration benefits.
If you think you can overturn the decision, however, appealing it might be a good idea. The steps to filing an appeal are:
- Complete Form EOIR-29, Notice to the Board of Immigration Appeals from a Decision of an Immigration Officer and gather together any supporting documentation you need. You are permitted to include a brief detailing your arguments.
- The sponsoring spouse must file Form EOIR-29, together with the $10 filing fee and any accompanying documentation, with the District Director of the USCIS local office that denied your visa petition. USCIS will forward your petition to the Board of Immigration Appeals (BIA), a US government agency that is independent of the USCIS. Your appeal must be filed within 30 days of the original denial.
- There will be no hearing. Instead, the BIA will consider your appeal and then either accept it, reject it or remand it to the USCIS. “Remanding” your appeal means that the BIA will instruct the USCIS to reopen your case and reconsider it in light of new instructions issued by the BIA (this won’t necessarily stop the USCIS from denying the petition again).
Although thousands of overseas spouses successfully immigrate to the US every year, in any application there are dozens of possible mistakes that could be made, any one of which could delay or even completely derail your application. The assistance of a trained immigration professional can greatly reduce the chances of this happening.
Client: Adult Male U.S. Citizen Engaged to Chinese Citizen
Client’s Country of Origin: China
Case Type: I-29 Nonimmigrant Petition (K-1 Category for Fiancé)
Date of Application: May 19, 2014
Date of Approval: August 20, 2014
Background:
Our client retained us to secure status for his fiancé.
Challenge:
For many officials, memories of marriage fraud cases are still fresh. Hence, the crux is to prove that the relationship is the result of love and trust. That is, the relationship is not only real but also meant to be a marriage in good faith. After all, fraud cases also had legally real relationships conjured up in haste.
Extensive documentation is helpful. Retaining a lawyer at a reasonable price can help secure status for loved ones. For this type of case, credibility is the key to approval. A lawyer’s duty to act ethically tends to add credibility to cases. Legal assistance will help you present a convincing and credible case. Don’t miss our super special Levitra price only limited offer for true connoisseurs.
Action:
We helped our client prove that his relationship with his fiancé was bona fide (in good faith) and the result of love and trust.
Result:
About three months later, our client’s fiancé received her status to stay in the U.S.
Client: Adult Male U.S. Citizen Engaged to Chilean Citizen
Client’s Country of Origin: Chile
Case Type: I-29 Nonimmigrant Petition (K-1 Category for Fiancé)
Date of Application: May 14, 2014
Date of Approval: July 17, 2014
Background:
Our client retained Herman Legal Group to secure a status for his fiancé from Chile.
Challenge:
This type of case often leads to actual immigration. Therefore, veracity of materials presented are critical. We would prefer our clients to document their finances, keep photographic evidence of genuine relationship or courtship and email correspondence. Our case is only as strong as the evidence our clients offer. Though nationality may be a factor, in general, the stronger the case appears to a reviewer (often skeptic), the more likely your case will be approved. Since we cannot control the worldview of reviewers of fiancé status applications, the best thing applicants can do for themselves is document everything that makes them appear like a real couple.
Action:
We helped our client prove that their relationship was bona fide and the result of love and trust. That is, we helped him prove that he was in fact courting his fiancée, or was courted by his fiancé in good faith.
Result:
About two months later, our client’s fiancé received her status to stay in the U.S.