Proof of Legal Ability to Marry

There are many reasons a K1 visa could be denied. However, before you ever get into the detail of the process, make sure you meet these three basic requirements:

• • You and your fiance have met within the two years prior to the filing the petition. It doesn’t matter if you have met a hundred times before that. The USCIS is not lenient in this area and we have seen petitions denied where the couple met 25 months before the filing. If you have not met in the last 24 months, don’t waste your time and money filing. Although the regulations do mention exemptions in cases of extreme hardship, it is extremely unlikely you can make this excuse. Lack of financial resources to travel will not be accepted as “extreme hardship”. Your inability to travel to your fiance’s country will also not meet the burden since it is assumed that you can meet in any country in the world. There is no requirement that you have ever traveled to your fiance’s country.
  • You must show a bona fide intent to marry. This can generally be accomplished by sending letters from you and your fiance expressing your intent to marry. Include these letters with your petition (I-129F).
  • You and your fiance must be legally able to marry.

This is the topic of this post.

For the U.S. citizen, proving legal ability to marry is pretty straightforward. You simply attach divorce and/or death certificates to your petition for each of your previous marriages. The divorce decree and/or death certificates need to be official copies with the stamp of the granting court or government office.

The fiance needs to provide the same evidence of divorce or death of a spouse. This area is a little trickier since every country handles these matters differently. Adjudicators will be looking closely at these documents to determine authenticity. The USCIS refers to this as “proof of the legal termination of the previous marriage of the beneficiary.”

The following is an example of providing unacceptable documentation to prove divorce that caused a delay of over two years for the petitioner.

On March 22, 2007 a female citizen of the United States petitioned the USCIS to bring her Ghana fiance to the U.S. on a K1 Visa. Her fiance had previously been married in Ghana. As evidence of his divorce, he provided a “statutory declaration” form the father of his prior wife indicating they had divorced on October 24, 2006 in Ghana.

Now this is where I have to add my personal opinion. Who would possibly think you could just get a note from your ex-father in-law and submit that to the government of the United States as proof of divorce? This beautifully demonstrates how different cultures can have vastly different ideas of what constitutes “proof”.

The USCIS has a manual called the United States Foreign Affairs Manual (FAM) that among other things, tells them what documents are available from various foreign countries. In this case, the director took a look in the FAM and verified that Ghana courts do issue official divorce decrees. The petition was rejected. It turns out the man never really legally divorced his prior wife. Eventually, the fiance did obtain a divorce decree from the Circuit Court in Tema, Ghana. The former father in-law had to attend a court hearing and testify that the marriage dissolved in 2006. I’m sure a little money had to change hands before the U.S. citizen’s fiance could get his ex-father in-law to go through all that trouble.

In the end, the USCIS did accept the new documentation on June 8th, 2009 after an unnecessary delay of two years and three months.

The lesson here is clear. The USCIS is not your school principal. They are not going to accept a note from your father. Take the time to obtain the necessary and proper documentation from official sources. There are no short-cuts.

Fast & Easy K1 Fiance Visa Petition