The popular reality show 90 Day Fiancé highlights the pitfalls and challenges of courting a foreign partner and immigrating him or her under the US fiancé visa program. Mostly foreign brides are tasked with getting to know their American counterparts in short order – – 90 days or less, sometimes with disastrous consequences. A rise in online dating as well as “foreign matchmaking” services have made these long-distance liaisons possible and more common than ever. But as entertaining as watching two people who just met navigate uncharted waters can be, immigrating as a foreign bride or groom to the U.S. under the K-1 visa program is no cake walk. The immigration laws the foreign bride or groom to be must navigate once they gain entry into the U.S. are both restrictive as well as punitive if the relationship goes sour and the nuptials never occur.
The Applicable Law
The fiancé visa petition process is governed by section 101(a)(15)(K)(i) of the Immigration Act and by federal regulation at 8 CFR 212.1(h), 214.2 (k) and 248.1(a). The law requires that the couple have physically met at least once within the 2 years previous to filing the K-1 visa petition with very few exceptions. Both parties must be free to marry and the U.S. citizen petitioner must undergo an extensive criminal background check. Those who were previously married must show the prior marriage ended either through dissolution or the death of the prior spouse. Any information gleaned during the criminal and background check of the Petitioner is disclosed to the fiancé or fiancée at the time of the visa interview. If the petitioner previously filed a fiancé or immigrant visa petition, the petition is subject to additional scrutiny and this is also disclosed to the K-1 visa applicant. Rest assured U.S. consular officers will scrutinize the application as well as the applicant for inconsistencies, signs of fraud or other serious criminal behavior including the trafficking of women.
While the initial petition process is relatively simple to navigate, extraordinary long delays in processing and the restrictions placed on the K-1 visa recipient can doom a blossoming relationship. Assuming the fiancé or fiancée is successful in obtaining the visa from the consulate, he or she has a mere 90 days from the date of entry to the U.S. to marry the Petitioner . If for some reason, they fail to go through with their nuptials during this extremely limited time, the foreign bride or groom must leave the U.S. immediately to avoid accruing unlawful presence as they are no longer in lawful non-immigrant status.
Even if the K-1 beneficiary wants to stay, current law (INA Section 245(d)) comes into play derailing any such plans. If the K-1 visa holder fails to leave in a timely fashion, he or she may be removed by the government jeopardizing any future immigration prospects due to the three and ten year bars against re-entry for visa overstays under 8 CFR §214.1(c)(3). Federal regulations further prohibit a fiancé visa holder from changing or extending their K-1 status. Perhaps most damning is the provision which forbids the K-1 visa holder from obtaining a green card except through marriage to the original petitioner. This prohibition is enforced even if the original relationship has fallen apart, there are allegations of abuse, or the K-1 beneficiary has found another means to immigrate such as a lucrative job offer, or a new beau.
It is this provision of US immigration law which causes many K-1 visa holders the most heartache. It matters not the K-1 beneficiary desires to remain here and begin a new life, or that they have been an exemplary person since entering, has friends, is learning the language, attends the local church or is not otherwise a threat to American society. Under the law, they cannot remain legally in the U.S. or obtain permanent residency except through the original petitioner. A sheer impossibility when the relationship to that original petitioner has ended. In some instances, K-1 beneficiaries, whether male or female, who find themselves in the unfortunate position of being abused by the petitioner, may find relief in the Violence Against Women Act (VAWA).
With no other basis to legally remain in the U.S. except through marriage to the original petitioning sponsor, a foreign bride or groom whose American partner no longer supports them may find their alternatives are next to nil. Nor does the law require the petitioner to provide a return ticket home or other financial assistance to the K-1 beneficiary should things go sideways. Moreover, there is nothing to preclude the K-1 Petitioner from filing and obtaining approval of a fiancé petition on behalf of another prospective bride or groom should they choose.
Under the K-1 visa program, the short end of the stick goes to the foreign bride or groom to be who find themselves facing an unsympathetic immigration system upon entry. This is because the K-1 visa program is designed to facilitate only one thing–the marriage of the K-1 visa holder to the original K-1 petitioner, without regard to the realities facing many couples, particularly what to do when the hoped-for marital bliss fails to materialize.
The information contained in this article does not constitute legal advice but is strictly for informational purposes only. Persons are cautioned not to rely upon the information contained herein but to seek out legal advice from an immigration attorney.
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