Fiance(e) K-1 is a non-immigrant Visa

The Fiance(e) K-1 and K-2 visa is considered a non-immigrant visa.  Meaning when your foreign fiance(e) is issued a K-1 Visa, he/she is allowed conditional temporary entry into the U.S. The condition is, of course, to marry the you within 90 days. When married, your new spouse earns the right to stay (and further benefits) after filing the Adjustment of Status (AOS).

Why is a Fiance(e) K-1 Visa non-immigrant?

An immigrant visa is for foreigners who immigrate to the U.S. with the intention to stay, live and work there.  A non-immigrant visa is for those foreigners who will stay in the country temporarily.  Read the full difference between immigrant and non-immigrant visas.

This gets slightly confusing.  Shouldn’t the fiance(e) visa be “immigrant” because clearly your fiance(e) is coming to the U.S. to live permanently? So why would he/she be considered a temporary non-immigrant?

Well, technically your fiance(e) immigrates to the country with the intention of marrying you.  He/she is allowed a temporary stay which turns into a permanent stay once you get married.  The fiance(e) K-1 visa is a non-immigrant but processed like an immigrant visa.  This is because the K-1 process eventually leads to a permanent stay.  

The government wants to make sure that your fiance(e) will only stay if he/she marries you, otherwise, they must leave.  A fiance(e) who doesn’t marry the sponsoring US citizen can’t decide to remain, live, work, settle or benefit from their status.  You two have 90 days to finalize a decision, legally marry and then file the AOS. So to enforce the rules of visa, the USCIS issues it technically as non-immigrant. 

Short answer: The Fiance(e) entering the U.S. has a one-time temporary entry until he/she fulfills the condition of marrying the sponsoring U.S. citizen within the 90 days. 

Even though it’s a non-immigrant visa, your fiance(e) will also be required to meet the requirements of an immigrant visa. Why? Because, eventually the K-1 leads to an immigrant (permanent resident) status.  Don’t get caught up in the name too much.  Just follow the right procedures as dictated by the USCIS or the US Embassy. 

Similarly, the the U.S. Department of State refers to the fiance(e) visa as “non-immigrant”.

What does it mean for your fiance(e)?

There are clearly going to be differences between the “immigrant-visa” processes and the K-1 “non-immigrant” processes.  For example:

Some differences when filing the application

When your fiance(e) is going through the application process prior to entering the U.S., he/she files non-immigrant applications.  For instance, he/she will submit a “non-immigrant visa” application (DS-156 and DS-156K) along with an “immigrant visa” application (DS-230).  Also you need file the “affidavit of support” appropriate to the K-visas, not the I-864.

There are still more sources of confusion.  Some countries consider the fiance(e) K-1 visa as an immigrant visa and will process them as such.  This might be confusing and worrying, but, remember this rule of thumb — submit whatever type of applications they ask for.  

Some differences after entry

Your Fiance(e) won’t have an “immigrant status” from time-of-entry until filing the AOS.  His/her “non-immigrant” status does not allow work, travel outside the U.S. (without risking denial of re-entry), or otherwise benefit from other social programs.  It is in both your interests’ to marry and file the AOS as soon as possible.

When comparing the Fiance(e) K-1 or K-2 visa to the spouse visa then there are certainly differences.  Indeed, the fiance(e) entering the U.S. has a very different status than one entering as a spouse.  But, only for a short time until marriage.

Since the K-1 visa is non-immigrant, the main lesson to take away is you must be honest and follow through your intention to marry in 90 days.  If you sincerely decide not to marry (and that’s okay), then your fiance(e) must depart within 30 days after the 90-day deadline.