Tashfeen Malik, one of the two now-dead San Bernardino attackers, came to the United States in July 2014 on a K-1 visa -- also known as a "fiance visa."
Visas -- legal documents needed to enter most countries with authorization -- have been the subject of congressional debate just this week because there are a number of countries whose citizens can visit the United States without a visa. Several members of Congress and the White House want this list shortened or eliminated due to concerns that a terrorist could slip into the country on some type of short-term or visitor's visa. But the Pakistan-born Malik would not have been one of these people. Pakistan is not on the visa waiver list.
Instead, Malik entered the country, with permission, on a fiancee visa. It is one of a handful of visa types that do require a series of background checks and security screenings. But it involves a U.S. citizen as the other party, so it is typically processed more rapidly than many other types of requests to enter the United States.
For people who want to enter and remain in the United States as a legal immigrant from certain countries, including Mexico, the wait for a visa can stretch more than two decades. For refugees, the screening process is deeper and right now can take up to three years. Officially, the government agencies -- and there are several of them — involved in the fiance visa process say it takes about eight months. But three immigration lawyers contacted by The Fix across the country said current processing times typically run eight to 12 months in cases that are not particularly complicated.
In Malik's case, it did not appear, as of Friday morning, to have raised any red flags.
Getting the government's seal of approval on your relationship — the essence of the fiance visa process — involves some rather unusual experiences. But there is a firm and absolute process. It's one most Americans know little about. So The Fix thought some facts here might be useful. What follows is information provided by the U.S. Citizenship and Immigration Service, the U.S. Department of State, the Department of Homeland Security, the FBI and Ofelia Calderón, an immigration lawyer with a private practice in Fairfax, Va., where she assists clients with a range of immigration-related legal needs. Calderón is a partner at Calderón Seguin PLC.
Getting a fiance visa requires some big commitments -- including a legal document promising to marry or leave the country within 90 days. Those who break the rules and are caught will be deported. The visa is granted on the condition that Foreign National A marry U.S. Citizen B. It is not transferable, meaning one cannot arrive in the United States on a fiance visa and simply move on to a new partner. People are deported, with some frequency, for attempting to circumvent this rule.
So, you are a U.S. citizen in love with a foreign national, living in another country. The bureaucracy has a form for that. It's called the I-129F.
The I-129F includes lots and lots of basic questions and some that pry into the lives of both parties. The instructions alone run nine pages. U.S. citizen applicants and their fiances -- technically called "beneficiaries" — have to supply a lot of identifying information, including a birth certificate and or proof of U.S. citizenship, a police report revealing any arrests or convictions in any country where either party has lived for at least six months from age 16 forward, and similar information about any minor children.
And, while it's pretty difficult to provide proof of actual engagement, the couple does have to be able to demonstrate that a relationship exists. There's no Facebook official standard here. Same-sex couples are eligible. Applicants and fiances have to provide proof and that the two have been in contact -- in the same spot, physically, at the same time -- within the last two years. That's photos, plane tickets and the like. (There are cultural and hardship exemptions, but they aren't easily made.) And those who have been married before must provide that earlier spouse's death certificate, a divorce decree or an annulment. Those with common names and complicated histories might find this process longer and harder than others.
Then, U.S. Immigration and Citizenship Services, one of the federal agencies involved, takes over. It reviews both domestic and international criminal databases to gather information about the two individuals and relies on other federal agencies to assist in this process. It looks for any type of contact with law enforcement authorities, including arrests that did not lead to convictions, and has to track down the outcome.
If a person has lied, this is the end of the road. Convictions for certain offenses also can disqualify a foreign fiance. Fingerprints and other biometric and health information are collected. So too is information about any marriage broker or international dating service involved in making the connection. (That's allowed but must be disclosed.) And applications are screened for signs of utter sham marriages and the like.
If the application clears this process (the goal time for this is five months or less), the U.S. State Department steps in. Among other tasks, embassy staff also looks for evidence of dishonesty or conflicting information, of for-immigration- purposes-only marriages, of those who have made use of or attempted to make use of the system before, signs of trafficking and other potential abuses.
The fiance is then called in for an in-person interview with U.S. Embassy staff in their country. This is where Uncle Sam's alarm-bell questions, inquiries about the two parties and the state of their relationship get personal. "How did you meet?" is just the beginning. Trust us. And they vary a bit from case to case and country to country. Reviews are most rigorous in parts of Asia and Eastern Europe.
And during the interview, any arrests or convictions are shared with the other party in the form of a question. As in, "Foreign National A, did you know that U.S. Citizen A, whom you plan to marry, was arrested for marijuana possession in 1986 and convicted on domestic violence charges in 2009 and 2012?" And, "Citizen A, did you know Foreign National A, whom you plan to marry, was arrested for insurance fraud in 1994?"
Now, while some information does not disqualify either party, it will be disclosed, largely for the safety and protection of both parties. Uncle Sam is, in its own way, looking out. The government is trying to prevent stuff potentially far more sinister than your average online dating disaster. Interestingly, this information is not disclosed when parties are already married and applying for a noncitizen to enter the United States. Those who found relationships abroad, you have been warned. You are in the same situation as the rest of America.
So, you and your intended spouse have made it this far. Somewhere between eight and 12 months have likely passed since the decision to marry. There's usually a bit more wait time. Tickets have to be purchased and then, with a visa in hand, Foreign-Born Person A can travel to the United States. But this isn't something that is happening in huge numbers each year. The actual count of sweethearts arriving in the United States with plans and visas that obligate them to marry or leave is not terribly large. (Click on the chart to enlarge it.)
In the first nine months of this year — the most recent data available — the federal government took in 36,627 applications, approved 34,652 and rejected 3,727 requests. The count of applications received minus those rejected does not equal the number approved because requests are sometimes received and decided in different years.
The fine print
U.S. citizens and foreign-born beneficiaries can't simply keep traveling and trying their luck. Any application that involves a person who has been to the fiance visa application well more than once in a short period of time (say, three applications in three years) is going to get the Uncle Sam equivalent of an extra strong side-eye. There will be additional questions and reviews, including a number required by international agreement to try to prevent human trafficking.
And a U.S. citizen applying for a fiance visa on behalf of a beneficiary must provide proof of income that sits 125 percent above the federal poverty level. The income requirement for U.S. citizens is considered evidence that if the fiance were to become or remain unemployed, he would not need to rely on any sort of public benefits.
Finally, fiances may apply for permission to work in the United States as soon as they arrive. They can also apply to bring unmarried, minor children to the United States with them. And then, after a period of time, the fiance can apply for a green card, technically called legal permanent residency, and eventually citizenship. This process takes years.