HAWAII'S ONLY WEEKLY FILIPINO-AMERICAN NEWSPAPER
SERVING THE FILIPINO COMMUNITY SINCE 1993
NOV. 17, 2018

LEGAL NOTES

Petitioning A Fiancé(e)

by Atty. Reuben S. Seguritan

TUS citizen who wishes to bring his/her fiancé(e) to the US must file an I-129F Petition for Alien Fiancé(e) with the USCIS. After processing and approval, the fiancé(e) will be issued a K-1 fiancé(e) visa. This visa is a nonimmigrant visa which will allow the fiancé(e) to enter the US in order to marry the US citizen petitioner within 90 days from arrival. If the fiancé(e) has a minor child, the minor child can also be brought to the US on a K-2 visa.

A strict process will be followed before the K-1 visa is issued. The US citizen must include the following evidence and documents to the I-129F petition: proof of US citizenship by submitting a copy of his birth certificate or certificate of naturalization or US consular report of birth document; affidavit with the narrative of the relationship and a statement of intent to marry the fiancé(e); evidence to establish the relationship and how many times the couple have met personally, (i.e., photographs together, letters or messages sent to each other, plane tickets, receipt of the engagement ring, etc.); a signed statement of the fiancé(e) certifying that he/she intends to marry the US citizen within 90 days of entering the US on a valid K-1 visa; one 2x2 colored photograph each of the US citizen and the fiancé(e) and payment of the filing fee. If the fiancé(e) is from the Philippines, she must also submit a Certificate of No Marriage (CENOMAR) which is proof that he/she can legally get married to the US citizen.

After the US citizen submits the I-129F petition to the USCIS, it will be reviewed. If the I-129F petition is approved, the case will be sent to the National Visa Center (NVC). The NVC will provide a case number and forward the case to the nearest US consulate to the fiancé(e)’s address. The US consulate will then contact the fiancé(e) and instruct him/her to get a medical exam and attend a visa interview. The fiancé(e) must bring the following documents during the interview at the consulate: proof of completion of the online visa application (DS-160), valid passport, police clearance, evidence of support by the US citizen, and evidence of the relationship with the US citizen. After the interview and approval, the K-1 visa will be granted and the fiancé(e) can enter the US.

If the US citizen and fiancé(e) get married outside the US, it would be difficult for her to reenter the US because now he/she has a nonimmigrant intent of living and staying in the US with his/her spouse. The entry of the spouse to the US can be denied by the US Customs and Border Protection (CBP) when the spouse does not have a job or significant ties in the US. However, if the foreigner spouse has a dual intent visa such as H1-B or L-1 or soft dual intent visa such as the O-1 or E-1/2/3 to remain in the US, then the spouse will be allowed to enter the US.

It is important to note that if in the customs or culture of the fiancé(e), the US citizen and the fiancé(e) are already married after a ceremony or event that they participated in, then the K-1 fiancé(e) visa petition will not be approved. The spouse must be brought to the US using another visa. One of the ways is by the K-3 nonimmigrant visa for foreign spouse of US citizens.

If the spouse is in another country, the US citizen can apply for lawful permanent resident status (LPR) of the foreigner spouse by filing the I-130 Petition for Alien Relative with the USCIS. The petition will then be processed through the NVC and the spouse will also be interviewed at the nearest US consulate. The US citizen and spouse should include the following in the application: affidavit stating the timeline of the couple’s relationship; statement on prior marriages of the spouses; birth certificates; birth certificates of minor children if any; marriage certificate of the couple; 2x2 photographs of the US citizen and foreigner spouse and; the filing fee.

While the I-130 petition is pending, the US citizen has the option of filing for the K-3 nonimmigrant visa in order for the spouse to enter the US and complete the I-130 petition processing in the US. The K-3 visa will only be issued if the following are met: 1. The US citizen and the foreigner spouse are married; 2. There is a pending I-130 petition and; 3. Foreigner spouse seeks to enter the US to await the approval of the I-130 petition and subsequently obtain LPR status. If the foreigner spouse has an unmarried child under 21 years of age, the child can also be brought to the US using the K-4 visa.

However, the processing times for the K-3 visa has become very long and as long as the I-130 petition. Hence, it no longer makes sense to file for the K-3 visa. It would be better to wait for the processing of the I-130 petition.

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REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at (212) 695 5281 or log on to his website at www.seguritan.com

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