Why The ‘Fiance Visa’ Used By the San Bernardino Shooter Is Actually Really Hard To Get

CREDIT: SHUTTERSTOCK
CREDIT: SHUTTERSTOCK

Tashfeen Malik, one of the two shooters in the deadly San Bernardino, California attacks, has brought national attention to a little-known visa process that allows people to enter the country to get married.

Malik entered the U.S. last year on a K-1 visa to marry Syed Farook, who is an American citizen. The K-1 visa program allows foreign nationals to enter the country and requires them to be married to a U.S. citizen 90 days after receiving the visa. Last year, the State Department approved about 36,000 of these visas, and the government issued about 262,000 of them between 2005 and 2013.

Malik is the only person known to take advantage of the so-called “fiance visa” to commit an act of terror, potentially complicating the debate over visa security.

The K-1 visa’s high approval rate has drawn criticism from immigration restrictionists, who claim that the government has been too lax. Following last week’s shooting, GOP lawmakers called for a comprehensive review of the visa process, saying that the attack “highlights the very real security threat throughout the system.” On Tuesday, Homeland Security Secretary Jeh Johnson said that the Obama administration has agreed to review the K-1 visa program.

But immigration experts and lawyers who handle K-1 visa clients say that, in their experience, it’s not an easy process to exploit.

To apply for the K-1 visa, applicants must submit a copy of their birth certificate, any available marriage certificate, divorce decree, death certificate of spouse, evidence of engagement to their fiance, birth certificates for all children, evidence of financial support, and police certificates, according to one of the forms that applicants must fill out.

Another required form asks applicants to answer whether they have been arrested or convicted of any offense or crime; if they were ever refused admission to the U.S.; whether they would enter the country to engage in terrorist activities and whether they’re members of terrorist organizations; whether they’ve been unlawfully in or deported from the U.S.; and whether they have communicable diseases that could affect public health.

According to Mo Goldman, an immigration attorney based in Tucson, Arizona who works with K-1 visa clients, the visa application process can take anywhere between six and 12 months before fiances first step foot inside the United States.

“Obviously if someone is going to be scheming up a plan to attack the United States, they would need to consider the possibilities of it being revealed at some point and with the K-1 process, you’re going through multiple layers of vetting,” Goldman told ThinkProgress. “There’s a variety of databases that applicants, biometrics or facial recognition checks in order to figure out if they have links to criminal activity and then of course checks based on names.”

“The applicant for a K-1 visa has to undergo very thorough security checks,” Daniel M. Kowalski, an immigration lawyer, agreed.

Alex Nowrasteh, an immigration policy analyst at the libertarian think tank Cato Institute, told ThinkProgress that the recent shooting in San Bernardino shouldn’t justify tightening the K-1 visa process, simply because it doesn’t attract people trying to enter the U.S. for nefarious reasons.

“The reputation of the visa could be that it’s very strict — — and that is the reputation — so that just deters people from trying in the first place. Therefore the vast majority of people who are trying to get it are legitimate people,” Nowrasteh said. “It’s not really a visa that’s being abused.”

Plus, in his recent research, Nowrasteh found that most people entering the country with the help of “fiance visas” don’t stick out as potential threats. Nine out of the top ten countries responsible for the majority of all K-1 visas were not on a list designated by Sen. Rand Paul (R-KY) in the SECURE Act as “particularly terror-prone.”

“You have to go way down the list to find countries that people are afraid of when it comes to terrorism,” Nowrasteh said.

“What’s important for this story and this event is also to remember that humans are not robots and human behavior cannot be predicted based on past behavior,” Kowalski said. “So if someone has a bad record, that’s interesting — perhaps useful information — but it tells us nothing about what the person will do tomorrow or next week or next year.”