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Fiance Vs. Marriage Visas

What You Must Know When Choosing the Right Visa Strategy

What is the process for a K-I Fiancé Visa?

  • The U.S. citizen files a Petition for Alien Fiancée (K-1 petition) with U.S. Citizenship and Immigration Services (USCIS).
  • USCIS forwards the approved petition to the State Department’s National Visa Center (NVC) for processing.
  • US Department of State National Visa Center asks for confirmation that applicant has gathered certain paperwork and documents, is prepared for interview
  • NVC forwards the file to the U.S. consulate where the foreign fiancé lives.
  • The fiancée applies for a K-1 visa (and any children apply for K-2 visas) at a U.S. Consulate abroad. The foreign fiancé attends the interview, proves there is a true relationship
  • The fiancée applies for admission to a U.S. Customs and Border Protection (CPB) inspector at a port of entry.
  • To qualify for a green card, within 90 days of entering in K-1 status, the couple must marry;
  • The foreign spouse (and each K-2 child) must file with USCIS a Form I-485, Application to Adjust Status.

The difference between fiancé Visas K-1 and Marriage Visas K-3 and Immigrant Visas based upon a Marriage

  • K-1 fiancé (e) visa-If you are not married yet but plan to be married in the U.S.
  • K-3 Marriage Visa-If you have already been married, or plan to be married in your loved one’s native country.
  • Immigrant Visa based upon a Marriage is submitted if you are already married and wish to save money, but can live with a longer waiting time to be together in the United States.

Advantages of a K-1 Fiancé Visa

  • Typically approved faster than Immigrant Visas or K3 Marriage Visas Total time is less. It is estimated: 7-9 months, depending on workload at USCIS and NVC, and US Consulate in home country.
  • You will be getting married in the U.S. if that is important to you
  • Allows you and your partner to spend more time together in the U.S. before being legally bound. Couples get a 90-day courtship window before the wedding must take place, during which the foreign partner can live in the U.S. This uninterrupted time together can help solidify a couple’s commitment and provide a strong base for the upcoming marriage.
  • Requires only a single petition for the family. Children come as derivatives called K-2, without a separate petition, as long as the children are named in the petition. A separate petition is not required if the children accompany or follow to join within one year from the date of issuance of the K-1 visa.
  • It might be easier to get married in the US and prove your marriage is legal
  • The Income Requirement for a K-1 is less strict than that of an Immigrant Visa. Immigrants are required to show that their petitioner earns 125 percent of the federal poverty guideline minimum income requirement from their most recent tax return. Applicants for a K-1 present the Form I-134 rather than Form I-864 and will need to show only that their US sponsor’s income is 100 percent of the federal poverty guidelines.
  • Once the K-1 arrives in the US and is employment authorized, their income can be included in the Adjustment of Status process where an I-864 must be submitted, with its higher income requirements
  • If the K-1 has a child he/she is eligible to come with you as a derivative K-2, even if the marriage will not take place until after they are 18 years of age (but must be less than 21 years).

Disadvantages of a K-1 Visa

  • You will have to work harder to prove your relationship to the foreign US Consulate interviewing officer
  • If you are your partner do not convince the Consulate that it is a real relationship (insufficiency of evidence or something said at interview makes them mistrust your fiancé), a K-1 petition is not subject to review by USCIS; it simply expires and that is the end of it. With a marriage-based Immigrant visa application, it will be sent back to USCIS who allows you to submit further evidence of the relationship, and then it will be sent back to the Consulate for another interview.
  • An Application for Permanent Residency must be submitted in the United States and there is another interview with USCIS before being granted Residency. Therefore, attorney fees are increased, because additional forms and applications must be submitted and scrutiny is done once overseas and once again in the United States.

What is the process for a K-3 Spouse (Marriage) Visa?

  • The U.S. citizen marries the foreign fiancé in the USA or in another country (could be home country) the foreign fiancé goes back to his/her country.
  • The U.S. citizen files a Form I-130, Petition for Alien Relative, with USCIS in the United States.
  • Upon USCIS issuance of the receipt notice for the I-130, as soon as the US citizen receives the notice the citizen files a Fiance(e) Petition for Alien Fiancée, with the same USCIS office.
  • Ordinarily, USCIS holds and adjudicates the I-130 and I-129F at approximately the same amount of time, then forwards them to the National Visa Center. If the NVC receives the approved I-130 before it completes processing of the I-129F, the K-3 visa application will be “administrative closed” and the NVC will process just the immigrant visa application. Only in uncommon cases does the NVC complete processing of the K-3 visa application and forward it to the Consulate.
  • The spouse applies for a K-3 visa at the Consulate. (If the I-130 has been approved and received at the Consulate, the K-3 visa will not be issued. Instead, the post will adjudicate the immigrant visa application).
  • The spouse applies for admission to a CBP inspector at a port of entry and is admitted in K-3 status valid for two years.
  • The spouse applies for permanent resident status by completing the immigrant visa application at the Consulate or by filing a Form I-485, Application to Adjust Status, with USCIS.
  • The applicants are called for an interview at their local USCIS Field Office

Advantages of a K-3 Visa

  • You won’t have to work as hard to prove your relationship to the foreign U.S. Consulate interviewing officer. (However you will still have to work hard to some degree anyway).
  • The K-3 grants the foreign partner immediate 2-year travel visa so the foreign partner is permitted to freely travel back and forth between the U.S. and her native country.
  • The K-3 can immediately apply for employment authorization upon entry to the United States
  • If the K-3 has a child he/she is eligible to come with you as a derivative K-4, even if the marriage does not take place after until after they are 18 years of age (but must be less than 21 years).
  • The Income Requirement for a K-3 is less strict than that of an Immigrant Visa. Immigrants are required to show that their petitioner earns 125 percent of the federal poverty guideline minimum income requirement from their most recent tax return. Applicants for a K-3 present the Form I-134 rather than Form I-864 and will need to show only that their US sponsor’s income is 100 percent of the federal poverty guidelines.
  • Once they arrive in the US and are employment authorized, you can include their income in the Adjustment of Status process where an I-864 must be submitted, with its higher income requirements

Disadvantages of a K-3 Visa

  • Unless there is an unusually long wait for I-130 approvals, this method is not faster than a Marriage-based Immigrant Visa
  • If the I-130 gets to NVC before the K-1 I-129F, the K-3 request will be cancelled
  • The U.S. partner must be granted permission by the foreign country to get married there, and marriage laws between the U.S. and other countries are not always compatible.
  • An Application for Permanent Residency must be submitted in the United States and there is another interview with USCIS before being granted. Therefore, attorney fees are increased, because additional forms and applications must be submitted and scrutiny is done once overseas and once in the United States

What is the process for a Marriage-based Immigrant Visa?

  • The U.S. citizen marries the foreign fiancé in another country (usually it would be home country);
  • The U.S. citizen files a Form I-130, Petition for Alien Relative, with USCIS or in exceptional cases with a U.S. Consulate abroad.
  • The approved petition is forwarded to the National Visa Center for processing and gathering relevant documents from the petitioner and spouse.
  • A Department of State application is submitted online; visa fees are submitted online
  • The spouse applies for an immigrant visa at a U.S. Consulate abroad, bringing evidence of the bona fide relationship;
  • The spouse applies for admission to a CBP inspector at a port of entry. The spouse becomes a Permanent Resident upon being admitted.

Advantages of a Marriage-based Immigrant Visa

  • You won’t have to work as hard to prove your relationship to the foreign U.S. Consulate interviewing officer. (However you will still have to work hard to some degree anyway).
  • Can work upon arrival in the US: An immigrant visa holder becomes a permanent resident eligible to work in the U.S. upon being admitted by CBP at the port of entry. A K-1 or K-3 is required to apply for an employment authorization card, which takes approximately 60 days.
  • When you arrive in the United States there are no more filings required, and therefore, this process is less expensive than a fiancée visa option. It will be much less expensive because you will have obtained Permanent Residency (Green Card) when you arrive in the United States and will go through no further processing at that time.

Disadvantages of a Marriage-based Immigrant Visa

  • Separation from your loved one is longer than the K-1 or K-3 option, although only by several months. Applicant might have problems entering as a visitor during that time period.
  • If you have children, they each are required to have a separate petition filed on their behalf in order to immigrate with you.
  • If you have children, the US citizen step-parent may only petition them if the marriage to their mother/father took place before their 18th birthday. They must also be under the age of 21 years.

This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

The Law Office of Janis Peterson-Lord is located in Long Beach, CA and serves clients in and around Long Beach, Hawaiian Gardens, Artesia, Harbor City, Wilmington, Cerritos, Bellflower, San Pedro, Carson, Paramount, Compton, Norwalk, Woodland Hills, Torrance, Lynwood, Santa Fe Springs, South Gate, Gardena, Bell, Huntington Park, Pico Rivera, Maywood, Los Angeles, Los Angeles County, Orange County.

 

Immigration Lawyer Long Beach

1383 Redondo Avenue Suite Two.
Long Beach, CA 90804
(562) 494-1010