If you want to sponsor a fiancé visa while married, there are several things you need to be aware of. The K-1 visa requirements can be quite strict, especially when it comes to sponsors who are already married or in the process of getting a divorce. Understanding these requirements is essential before you begin the K-1 visa application process. So, keep reading to find out whether or not it is possible to sponsor a fiancé visa while married.
K-1 Visa Requirements and the “Legal Capacity to Marry” Rule
One of the most important K-1 visa requirements is the I-129F legal capacity to marry. The USCIS defines the legal capacity to marry as both parties being capable of marrying at the time of filing your petition. So, if you are wondering if you can sponsor a fiancé visa while married, the answer is no.
Trying to sponsor your fiancé while married will automatically disqualify your petition since you will not be legally free to marry your fiancé were they to come to the United States. The same role applies if you are in the process of getting a divorce, as you’re still not legally free to marry until the divorce is finalized.
That is why it is necessary to divorce before applying for a K-1 visa so that you can show proof that your divorce has been finalized. In fact, being able to present your divorce decree is one of the many necessary forms of documentation you will need to provide with your petition.
Part of why the USCIS is so strict about this is because of the 90 day rule. When an immigrant obtains a visa and comes to the United States to be with their fiancé, they have 90 days to get married. Meeting the deadline would be impossible if you were still legally married to somebody else.
What to Do If You’ve Already Filed While Still Married
Mistakes happen, and you may have already applied for a fiancé visa without waiting for your divorce to be finalized. Believe it or not, this is a common misconception since people may think that just beginning the divorce process is enough to show legal capacity to marry.
If you have made this mistake and have already filed your petition, the best option available is to withdraw the petition. Without having proof that your divorce is finalized, there is no chance that your petition would be approved even if you didn’t withdraw it. Also, you may be suspected of misrepresentation if the USCIS examines your petition and sees that you’re still legally married.
Although it is often a simple mistake, you do not want to let your petition go through as this can lead to more scrutiny when you re-file later on. The best course of action is to withdraw your petition as quickly as possible and re-file once your divorce is finalized and you have the papers in hand.
Tips for Planning Your K-1 Timeline Around Divorce
Sponsoring a fiancé can come with many challenges, especially if you have prior divorces. This adds an extra layer of complexity as you will need to plan how you will time your divorce with your K-1 petition.
For a smoother process with less risk of a denial, here are some tips for planning the divorce/K-1 petition timeline:
- Keep your divorce filing as amicable as possible to avoid delays.
- Keep detailed records of how you met your fiancé and the timeline of your relationship.
- Only submit your I-129F petition once you have confirmation that your divorce is finalized.
- If you had to withdraw a previous petition, provide an explanation for why this is.
- If applicable, provide an explanation of why your marriage/divorce overlapped with your relationship or engagement to your fiancé.
Other Common K-1 Visa Issues
Aside from applying for a K-1 visa while your divorce is processing, there are many other challenges you might run into. It is essential to be aware of these potential issues so that you have a better chance of avoiding for a smooth K-1 visa filing process.
Here are some common pitfalls to be aware of:
- Not providing enough evidence to prove that the relationship is valid.
- Filing a petition with errors or inconsistencies.
- Not attending the interview and biometrics appointment after filing.
- Applying before ensuring you meet all of the eligibility requirements for a K-1 visa.
- Failing to marry within the 90-day timeline.
- Not providing adequate information explaining unusual circumstances, such as withdrawing previous petitions or relationships with a significant age gap.
- Providing inconsistent information between the petition and the interview.
To avoid running into these common issues, you should take the additional step of hiring an immigration attorney. An attorney will have a significant amount of experience with immigration law and can help you file a strong petition with the best chance of being approved.
Hire an Immigration Attorney Today
Wondering if you can apply for a K-1 during a divorce? Contact us today at U.S. Immigration Law Counsel at 800-666-4996 to speak with an immigration attorney about your situation. We will deal with the government, so you don’t have to!
FAQ Section
Can I get engaged before my divorce is finalized?
Yes, a common misconception is that being engaged is a legal term, but it isn’t. So, you can get engaged and have plans to marry while your divorce is being processed. However, you cannot begin the process of filing for a K-1 visa until you have an actual divorce decree in hand.
What if I’m separated but not divorced?
The USCIS does not recognize legal separation as meeting the requirements for having legal capacity to marry. You must go through the process of getting a legal divorce so that you can provide documentation of this when petitioning for the K-1 visa.
Will USCIS check my marital status?
Yes. One of the most important steps the USCIS will take when evaluating K-1 visa petitions is to check the marriage status of both parties. So, both you and your fiancé need to be legally free to marry and need to provide evidence of this.
