I am dating a Brazilian who I met when he was in the US on a J-1 visa. He is subject to the 2-year home residency requirement. He has already been back in Brazil since December 20, 2015. We are planning to get married within the next few years and would like to live in the US. We are thinking of applying for the K-1 visa. Does the 2 year home residency requirement have to be completed before we can begin the K-1 visa process or is it sufficient for the requirement to be completed during the time that the visa is processing?

So, generally speaking, the K-1 process may begin during the two-year period but the full 24 months in the home country must be fulfilled before using the K-1 visa to enter the US.

The K-1 is for people intending to marry after using the K-1 to enter the country. If you marry, the K-1 is no longer an option. There would be other ways to bring your spouse to the US, but in any event the two-year requirement would need to be met before entering the US as an immigrant or K-1 visa holder.

The home residency requirement means the time must be spent in the home country. It is not enough that time is spent in a third country which is different from the home country. The time does not have to be 24 months straight and it can be added together. For example, he spends 6 months in the home country and travels to France for 1 month and then returns to home country for 5 months. Out of the 12-month period example, he would have accumulated 11 months in the home country.

It is your fiancé’s responsibility to provide proof that he was actually in his home country. Passport stamps and travel itineraries usually help.

Without a consultation, we would not know if your fiancé is eligible for the K-1 visa, other types of visas, or a waiver of the two- year home residency requirement, so please consult with us or another qualified immigration lawyer before taking any action on your own. Since there are long time frames involved, you would not want to get something wrong and be separated from your loved one for longer than necessary.

If you have any questions regarding immigration, please feel free to call me, immigration attorney Shawn Mesa at (813) 679-5780.

Disclaimer: This information is provided as a public service and not intended to establish an attorney-client relationship. Any reliance on this information is taken at your own risk.

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