What is the procedure for a Canadian to apply for a K-1 visa?
The K-1 visa involves several steps, beginning with USCIS, then National Visa Center (NVC), then the U.S. Consulate in Montreal, and then USCIS again. It applies to any Canadian citizen fiancé who is engaged to a U.S. citizen and is not yet married. Under this visa, the U.S. citizen first files a petition with USCIS to sponsor the Canadian fiancé. Once the petition is approved, the Canadian fiancé will attend an interview at the U.S. Consulate in Montreal. If approved, the fiancé will get a K-1 visa stamp in their passport at which time they will travel to the U.S. and get married within 90 days of entry. Once married, the Canadian spouse will adjust their status with USCIS and both spouses will attend an in-person interview in the United States.
To qualify for the K-1 visa, both the U.S. citizen and the Canadian fiancé must be legally free to marry.
Additionally, both the U.S. citizen and the Canadian fiancé must have physically met in person at least once within the two years preceding the application. For example, if a U.S. citizen filed a K-1 visa petition on January 1, 2019, he must have physically met his Canadian citizen fiancé at least one time since January 1, 2017. On the other hand, if he met his fiancé through an online dating site and they had only been communicating via email or text without ever having met in person, they would not qualify to apply for a K-1 visa.
K-2 visa for Canadian dependents
Children under 21 of Canadian citizens who are being sponsored for a K-1 visa are eligible for K-2 dependent visas. If the K-1 visa for the Canadian fiancé is approved, their children can accompany them to the U.S. on K-2 visas. Once married, the Canadian spouse and any children can all adjust their status with USCIS.
Can a Canadian work in the U.S. with a K-1 Visa?
Upon entry to the United States, the Canadian fiancé may apply for employment authorization. However, it takes USCIS at least 5-6 months to adjudicate the application and the period of validity would be for 90 days from entering the U.S. So it is not worth applying for employment authorization immediately upon entering. Instead, the couple should get married upon entry – and then immediately apply for adjustment of status. With an adjustment of status application, the Canadian citizen spouse can simultaneously apply for work authorization which would be valid until the green card is issued.
Can a Canadian travel outside the U.S. with a K-1 visa?
Once the Canadian citizen fiancé enters the U.S. on the K-1 visa, they are not allowed to leave until they receive Advance Parole. Advance Parole is a travel permit that allows someone with a pending adjustment of status application to travel outside the United States and to re-enter without considering their green card application abandoned. Advance Parole can take several months to be approved, so it is recommended that the Canadian fiancé not make any travel arrangements outside the United States until it is approved.
Sponsor’s financial ability to support the Canadian fiancé
To qualify as a sponsor, the U.S. citizen fiancé must sign an affidavit of support that demonstrates his or her ability to meet a certain income requirement. This must be done at both the K-1 visa application stage, as well as later on at the adjustment of status stage.
What happens if the engagement is called off?
If the engagement is called off before the Canadian fiancé is scheduled for their interview at the U.S. Consulate in Montreal, then the U.S. citizen petition can submit a request to withdraw the petition to USCIS. If the engagement is called off after the Canadian fiancé enters the U.S. with the K-1 visa, they must depart the United States as soon as possible – and certainly before the maximum 90-day duration that they were admitted under.
Advantages of the K-1 Visa
For Canadian citizens, the K-1 visa is a good option for those who are not yet married to their U.S. citizen fiancé but who plan to get married in the future. The visa gives the couple time to develop their relationship further as they wait for the consulate interview, and it also gives them 90 days after approval of the visa and entry to the U.S. to actually get married. If the couple decides not to get married within the 90 days, the Canadian citizen fiancé simply has to return to Canada before the visa expires.
Another advantage to the K-1 fiancé visa is that it allows the Canadian citizen fiancé to move to the United States sooner than the consular processing green card. While timelines will always vary, the K-1 interview is usually scheduled sooner than a consular processing green card case. Keep in mind that with the K-1 visa, you are only half way through the process after moving to the United States. You still have to get married and apply to adjust your status with USCIS.
A third advantage to the K-1 fiancé visa is that it allows the Canadian fiancé to enter the United States with immigrant intent. Immigrant intent applies when USCIS concludes that a Canadian citizen entered the United States in some non-immigrant status with the intent to immigrate permanently – in other words, apply for a green card. For example, a Canadian who enters the U.S. in B-2 visitor status must have the intent to return to Canada because B-2 status is a “non-immigrant” status. That means, you are not supposed to have the intent to apply for a green card if you are entering the U.S. as a visitor. For Canadians entering the U.S. with the intent to marry their U.S. citizen fiancé (or spouse), doing so in B-2 status may result in a finding of immigrant intent and a denial of the adjustment of status. On the other hand, entering on a K-1 visa would not result in a finding of immigrant intent.
Disadvantages of the K-1 Visa
One of the primary disadvantages of the K-1 fiancé visa is that the entire process from start to finish can take a long time. That is because there are five distinct steps: 1) the initial petition by the U.S. citizen fiancé; 2) the National Visa Center Processing; 3) the interview at the U.S. Consulate; 4) entering the U.S. and getting married; and 5) applying for adjustment of status with USCIS. So it could conceivably take 1.5 – 2 years from the start of the process until the issuance of the green card.
A second disadvantage to the K-1 fiancé visa is that the Canadian citizen fiancé has to undergo two interviews; two background checks; and sometimes even two medical exams. The first interview is at the U.S. Consulate in Montreal when seeking the K-1 visa. The second interview is with the U.S. citizen spouse at a USCIS field office in the United States.
The Canadian fiancé will have to do an RCMP background check during the initial K-1 visa process, and also get biometrics done with USCIS during the adjustment of status phase. That means if the Canadian fiancé has a criminal conviction that makes him or her inadmissible, he or she will need to either apply for two waivers – one through the consulate, and the other through USCIS.
The Canadian fiancé will also have to do a medical exam prior to the K-1 visa interview at the U.S. Consulate. Once in the United States, the Canadian fiancé will have to submit the vaccination record from the first medical exam. If that report is unavailable, then the Canadian fiancé will have to undergo another medical exam in the United States.