By Licelle Cobrador, Esq.
Many of you may have heard of 90 Day Fiancé, a reality television series on TLC. However, not as many may know that the show is based on the K-1 visa process. This visa allows the fiancé/e from a foreign country to travel to the United States to live with her or his prospective U.S. citizen spouse. It allows some time for the engaged couple to make sufficient arrangements and have a marriage ceremony. An intent to marry must be clearly established. If they do not get married within ninety (90) days, the beneficiary must leave the country.
It’s straightforward. A foreign fiancé/e enters the U.S. solely for the purpose marrying the U.S. citizen petitioner. And they should marry within ninety (90) days after entry.
- The sponsoring partner must be a U.S. citizen. Green card holders are not eligible to sponsor a fiancé/e for a K-1 visa;
- There must be a bona fide or good faith intention to marry within ninety (90) days of the fiancé/e’s entry;
- No legal barrier to marriage i.e., both must be unmarried (note that same-sex fiancé/e is approvable regardless of whether the laws in the sponsored home country allow for same-sex marriage);
- Have previously met in person within two (2) years of filing the petition. A waiver of this requirement is possible for “extreme hardship” to the petitioner or violation of strict and long-established customs of the beneficiary’s foreign culture or social practice. If there is any precedent within the culture of allowing in-person meetings, then the waiver request will be rejected;
- Petitioner must provide criminal record, if any. This reportorial requirement is limited to any permanent protection or restraining order issued against the petitioner or any conviction concerning domestic violence, sexual assault, child abuse and neglect, dating violence, stalking or an attempt to commit any such crime or any conviction for certain violent crimes or attempt to commit those crimes, and any crimes related to a controlled substance or alcohol where the petitioner has been convicted thrice not arising out of a single act; and
- The Centers for Disease Control and Prevention/ CDC technical instructions for panel physicians requires all K-1 visa applicants who are referred to the panel physicians to receive a full COVID-19 vaccine series as part of their medical exam prior to being issued a visa. The CDC requires the COVID-19 vaccine to be approved either through the World Health Organization/ WHO or the U.S. Food and Drug Administration/ FDA. The Department of State encourages all applicants subject to a medical exam to get vaccinated against COVID-19 as soon as possible to avoid delays in visa processing. Blanket waivers will be applied in countries where the vaccine is not routinely available such as Afghanistan, Ethiopia, Haiti, Nigeria, Syria, Yemen and Zambia (countries with less than 10% of their population vaccinated as of January 2022).
Upon approval, a DS-160 online form must be filed. Thereafter, the Department of State consul determines whether the fiancé/e would be eligible for an immigrant visa before granting the K-1 visa. The consul is obligated to disclose the petitioner’s criminal record to the applicant.
The K-1 beneficiary has six (6) months from the approval date of the initial I-129F form to travel to the United States. Upon arrival, the couple must get married within ninety (90) days. If the couple decides to forego marriage, the fiancé/e will not be eligible to stay and must depart from the U.S. right away. The K-1 visa automatically expires after ninety (90) days. It cannot be extended.
Unlike other nonimmigrant visas, the K-1 beneficiary is not permitted to change to another temporary visa. It is also prohibited to adjust status from a K-1 visa to a green card or lawful permanent resident status based on marriage to anyone else.
Essentially, a couple needs to prove the legitimacy of their relationship and their engagement, with emphasis on the latter. Even though the COVID-19 pandemic has resulted in longer processing time and huge backlog, posts are authorized to give K-1 visa applications high priority since August 28, 2021.#
This column serves primarily as a guide. It aims to provide general information on immigration law. The information provided is for general guidance and reference purposes only and it is not intended to serve as, nor can it be relied upon, as legal advice to address any specific situation. Those with specific questions are strongly encouraged to contact an immigration attorney.)
*About the author
Born in Manila, Licelle Cobrador has over 10 years of experience in immigration and nationality law. Prior to establishing her own firm, Cobrador & Associates, PLLC, Licelle was an associate at a boutique immigration firm in Manhattan and a leading firm in Manila.
Licelle received her B.A. from the University of the Philippines, Manila (Cum Laude, Top 20 out of 267). After earning her J.D. from Ateneo de Manila University, she was admitted to practice law in the Philippines. She completed her LL.M at Benjamin N. Cardozo School of Law on a Dean’s Merit Scholarship and was admitted to practice in New York.
Licelle currently serves as Vice President and Executive Director of the Filipino American Legal Defense and Education Fund/ FALDEF and as Volunteer Attorney at the Migrant Center of New York. She is a past co-chair of the Cardozo Law Masters Alumni Community. She is also a member of the Filipino American Lawyers Association of New York/ FALA New York and the National Filipino American Lawyers Association/ NFALA.
Licelle has been selected as TimeIsNow’s Global Filipino Trailblazer. She is recognized as one of Women Today’s Women on the Front Rank, Cardozo Life Magazine’s Movers & Shakers and Cardozo Law’s Outstanding Alumni and has been published in Delaware Law. Licelle is a frequent national and international speaker on U.S. Immigration Law. #