Should we apply for a fiancé visa or get married and apply for an immigrant visa?

By July 22, 2014Articles

When a U.S. citizen is in a long-distance relationship with a non-U.S. citizen who is not present in the U.S., and the couple wants to get married and live in the U.S. permanently, it can be confusing for them to decide the best immigration process to pursue. Typically, this couple will have two options: 1) pursue the fiancé (K-1) visa, which allows the non-U.S. citizen to enter the U.S. on a visa for the purpose of getting married within 90 days, so that the non-U.S. citizen spouse then can apply for permanent residency; or 2) get married outside the U.S. so that the non-U.S. citizen spouse can apply for an “immigrant visa” to enter the U.S. as a permanent resident.

K-1 Fiancé Visa Process

The fiancé visa process is a three step process. First, the U.S. citizen files a petition with United States and Citizenship and Immigration Services (“USCIS”). This petition is the I-129F petition. The primary requirements of the I-129F petition are to prove that the petitioner is a U.S. citizen, that the petitioner is in a bona fide relationship with a non-U.S. citizen, and that the couple intends to get married within 90 days of the non-U.S. citizen entering the U.S. After approval of the I-129F petition, the second step is for the non-U.S. citizen to apply for the K-1 visa at a specific U.S. consulate abroad. In connection with this application, the applicant must obtain police certificates, undergo a medical examination, and attend an interview with a consular officer. After the K-1 visa is issued, the non-U.S. citizen may enter the U.S. and marry the petitioner. The couple must get married within 90 days of entry. After getting married, the non-U.S. citizen must complete the third step in the process by filing an application for permanent residency with USCIS. This application for permanent residency is the I-485 application.

Immigrant Visa Process

In contrast, the immigrant visa process is a two step process. After the couple is married, the U.S. citizen files a petition with USCIS. This petition is the I-130 petition. The primary requirements of the I-130 petition are to prove that the petitioner is a U.S. citizen, that the couple is legally married, and that the petitioner has the financial means to support the spouse. After the I-130 petition is approved, the non-U.S. citizen files an application for an immigrant visa. In connection with this application, the applicant must obtain police certificates, undergo a medical examination, and attend an interview with a consular officer. After the immigrant visa is approved, the non-U.S. citizen will enter the U.S. as a permanent resident. Approval of the I-485 application results in the issuance of a “green card” to the non-U.S. citizen.

Factors to be Considered

In most cases, the decision whether to pursue the K-1 visa or an immigrant visa simply is a question of preference or convenience for the couple. For many couples, it is not practical to get married in the non-U.S. citizen’s home country, and therefore, they choose the K-1 process. However, in certain circumstances the K-1 process is the better option.

The primary occasion to select K-1 processing rather than immigrant visa processing is when the non-U.S. citizen has children who are over the age of 18. When the couple gets married and pursues immigrant visa processing, the U.S. citizen may file I-130 petitions for the spouse as well as all children of the non-U.S. citizen who were under the age of 18 when the couple married. Any children who are over the age of 18 at the time of the marriage will not be able to immigrate with their parent. However, under the fiancé visa laws, any unmarried child of the non-U.S. citizen who is under the age of 21 years at the time the application is filed, may obtain a K-2 visa and come to the U.S. with the parent. Assuming the couple marries within 90 days of the non-U.S. citizen’s entry into the U.S., the children may apply for permanent residency, even if they turn 21 in the meantime. Therefore, the age of the non-U.S. citizen’s children may necessitate pursuing the K-1 visa process rather than immigrant visa processing.

Another reason couples may want to pursue the K-1 visa process rather than immigrant visa processing is that the processing times may be shorter. It is important to understand, though, that both types of cases involve processing at a U.S. consulate in a foreign country. Each consulate has slightly different procedures and processing times. For that reason, there may be occasions where processing of the K-1 will not be significantly faster than immigrant visa processing, if at all. Generally, however, immigrant visa processing will be slower because of the substantial involvement of a third government agency, the National Visa Center (the “NVC”). Immigrant visa cases require the NVC to process a significant part of the visa application. This additional processing step tends to increase the risk of delays at the NVC. Although the NVC does play a minor role in K-1 processing, cases typically do not get held up at the NVC.

Finally, if the non-U.S. citizen has minor children who will be immigrating to the U.S., the total cost of the government filing fees may be less if the couple pursues the K-1 and K-2 visas. For immigrant visa processing, the U.S. citizen must file a separate I-130 petition for each individual beneficiary, including each of the children. The children then must obtain separate immigrant visas. Each of those petitions and applications has a separate government filing fee.
In contrast, when the K-1 process is used, the U.S. citizen files just one petition for the fiancé. After approval, the children may obtain visas based upon that petition. However, this cost savings should be weighed against the additional cost of applying for permanent residency after they enter the U.S. and the couple marries. As described above, the K-1 process requires this additional application and its associated filing fee, for each individual.

The immigrant visa process may save government filing fees and the time required for the non-U.S. citizen to obtain permanent residency because it is a two-step, rather than a three-step process. This is one reason why couples who are able to get married overseas may choose to pursue the immigrant visa process rather then the K-1 process. In addition, though, in cases where the couple may not have significant evidence of the bona fide nature of their relationship, or where there are factors that may lead the consular officer to believe that the relationship is not bona fide, already being married may help persuade an officer that the relationship is bona fide. In contrast, if the couple simply states their desire to get married in the future, an officer may be less persuaded that the relationship is genuine. A marriage outside the U.S. may be the factor that convinces a reluctant consular officer that the couple has a bona fide relationship.

Regardless of whether K-1 or immigrant visa processing is pursued, the non-U.S. citizen must undergo an interview with a consular officer before issuance of the visa. Although the interview is required to review a variety of issues (such as whether the petitioner is a U.S. citizen, whether the couple is free to marry each other, whether the applicant has a criminal record, etc.), the primary purpose of the interview is to persuade a consular officer that the couple has a bona fide relationship. In addition to presenting documentary evidence of the relationship, such as written correspondence and cards exchanged by the couple, phone records showing telephone calls between the couple, pictures and travel itineraries showing the couple together, etc., the non-U.S. citizen must be able to talk in a relaxed manner about the relationship. The non-U.S. citizen must be able to explain how they met, how often they communicate, what their future plans are, etc. In preparation for the interview, it is very important that the non-U.S. citizen review the filed application, ensure that the information is accurate, and be able to talk about the relationship. In addition, the non-U.S. citizen should know significant facts about the petitioner, such as date of birth, where his or her parents and siblings live, and basic details about his or her employment.

The determination of whether to apply for a fiancé visa or to pursue immigrant visa processing is based on the facts of the particular situation. Numerous factors including timing, costs, travel, children, and evidence of the relationship must be considered in deciding which option to select. To assess the best option for your particular situation, contact an experienced immigration attorney.

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