There is an exception to the two-year meeting requirement in instances where both parties cannot meet because of either extreme hardship or due to a long established custom.  8 C.F.R. §214.2(k)(2).

USCIS is granted wide latitude in determining whether to waive the meeting requirement.  Unfortunately, the Immigration and Nationality Act does not offer any concrete guidance regarding when such a waiver is appropriate.  For instance the regulation does not even hint to what constitutes “extreme hardship” or “strict and long-established customs”.  In fact, the only way to know what USCIS is thinking regarding this waiver are the number of appellate decisions that come down, which shed some light on the area.

Extreme Hardship

In determining whether couples meet the extreme harship standard, USCIS approaches each case independently of any others and considers the totality of the petitioner’s circumstances.  In particular, the Service will consider whether 1. meeting the alien fiance is not within the petitioner power to control or change, and 2. whether the problem prohibiting the meeting is likely to last for a considerable time or that the duration cannot be determined with any degree of certainty.

Many individuals consider themselves good candidates for the extreme hardship waiver of the meeting requirement because of financial problems or because of safety concerns regarding the alien fiance’s home country.  It should be noted that in almost every case, financial constraints alone fail to rise to the level of extreme hardship necessary to qualify for the waiver.  Moreover, claims for the petitioner’s safety in traveling abroad rarely rise to the level of hardship because of the theoretical possibility that the couple could meet in another country besides the alien fiance’s.

Those most successful in the extreme hardship department are those who can point to a medical condition that prevents the meeting.  In such cases a great deal of individualized detail must be submitted to not only show that the petitioner has a medical condition that prohibits the meeting, but also that the medical condition prohibits the petitioner from traveling.  It has been suggested that a petitioner may qualify for the waiver by succesfully showing with great detail that the petitioner is not able to leave the U.S. due to a medical condition suffered by a member of his or her family.  In such a case, evidence indicating the length of time that the family member has suffered from poor health, the type of care the family member will likely require, and the type of medical care the petitioner provides to that member would be needed.

Strict and Long-Established Customs

Petitioner’s also may qualify for a waiver of the meeting requirement when they can show that compliance would violate strict and long-established customs held in the beneficiary’s foreign culture or social practice.  Arranged marriages can qualify for K-1 visas, however unless the couple can provide sufficient evidence that the culture absolutely prohibits the two individuals from meeting before marriage the waiver will be almost certainly be denied.  For instance a great number of waivers have been denied in cases where ecclesiastical leaders have held open the slightest of possibilities that a couple might be permitted to meet, even when under the most limited and restricted circumstances.

The bottom line is that USCIS is very stingy in granting this waiver.  So much so that unless the couple is willing to accept the possibility of significant delays in their case, I generally advise couples to make their best efforts to meet one another within two years of filing for the K-1visa despite great difficulty and sacrifice.   Due to the great difficulties in obtaining this waiver I strongly recommend that those who believe they qualify consult with a competent immigration attorney prior to filing.

Problems can arise at the Consular interview that can be fatal to attempts to obtain a K1 fiancé visa. Determinations by a Consular official that the beneficiary is seeking the visa to enter the U.S. rather than for the sole purpose of marrying in the U.S., or that the relationship is not satisfactorily established are normally catastrophic. Consular officials carry an enormous amount of discretionary authority. It is very difficult, if not impossible, to challenge a negative finding even if a Congressperson or the Department of State itself disagrees with the Official’s decision. Once denied, the petitioner is normally left with the options to wait for the recommendation of denial to make its way back to the USCIS (which takes months usually) and then attempt to rebut the finding, re-file anew, or consider marrying in the foreign country in order to seek entry with the K-3 spousal visa or permanent residence via Consular processing. In the meantime, an enormous amount of time, effort, and money has expended. The biggest disappointment of all, of course, is even more time spent apart. You want to get it right the first time!

Enough cannot be said about the importance of having the Beneficiary properly prepared for the interview. For instance, he or she must be aware of what has been submitted to the government by the Petitioner in addition to being fully informed about the Petitioner’s past marriages, divorces, children, criminal history etc. He or she must be able to demonstrate a familiarity with the U.S. citizen fiancé, have evidence of regular communication, and be able to express a sole intent to marry. The Simple K1 Visa Guide has an entire section dedicated entirely to help you prepare for the Consular appointment. Be careful!

The I-134 is required to help assure the Government that the alien fiancé will not become a public charge (welfare recipient) in the United States after entry.  The Form I-134 is often used in cases involving nonimmigrant visa applications such as the K1.  The Petitioner is to file an I-134 for the beneficiary but if he or she would not qualify financially by demonstrating the means to maintain an annual income equal to at least 125% of the federal guidelines another can usually step in as a joint sponsor so long as the joint sponsor is a U.S. citizen, or lawful permanent resident, and meets the financial requirements.

The sponsor agrees that he or she is willing and able to receive, maintain and support the beneficiary.  That he or she is ready and willing to deposit a bond, if necessary, to guarantee that the beneficiary will not become a public charge during his or her stay in the United States, or to guarantee that the beneficiary will maintain his or her nonimmigrant status, if admitted temporarily, and will depart prior to the expiration the authorized stay in the United States.  The agreement is binding upon the sponsor or joint sponsor for three (3) years after the entry of the beneficiary.  The information and documentation provided is also made available to the Secretary of Health and Human Services and the Secretary of Agriculture, who may make it available to a public assistance agency.
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