There are several options for U.S. citizens that wish to file a visa petition for a foreign fiancée or spouse outside the U.S. In this article we will analyze the most common ones, as follows:
The U.S. citizen files a K-1 petition with USCIS;
USCIS then forwards the approved petition to National Visa Center (NVC) for processing;
The fiancée applies for a K-1 visa (unmarried children under the age of 21 apply for K-2 visas) at the U.S. Consulate abroad;
The fiancée applies for admission to a U.S. Customs and Border Protection (CPB) inspector at a port of entry;
Within 90 days of entering in K-1 status, the couple must marry and the foreign spouse must file with USCIS an application to adjust status. If the couple marries prior to entering the U.S., this will make the foreign spouse ineligible for a K-1 visa;
The fiancée will receive her permanent resident card (i.e. green card) if and when her application with USCIS is approved.
CR1 (if issued prior to the 2nd anniversary of the marriage ) or IR1 IMMIGRANT VISA (if issued after the 2nd anniversary)
The U.S. citizen files Form I-130, Petition for Alien Relative, on behalf of a spouse with USCIS;
The petition is forwarded to the National Visa Center for processing and gathering relevant documents from the petitioner and spouse;
The spouse applies for an immigrant visa at a U.S. Consulate abroad;
The spouse applies for admission to a CBP inspector at a port of entry;
The spouse becomes a permanent resident upon being admitted.
The U.S. citizen files Form I-130, Petition for Alien Relative, on behalf of a spouse with USCIS;
Once USCIS issues the receipt notice for the petition, the citizen files a petition for alien fiancée, with the same USCIS office;
Ordinarily, USCIS holds the adjudicates the I-130 and I-129F at the same time, then forwards them to the NVC. In cases where the NVC receives the approved I-130 before the I-129F, the K-3 visa application will be “administrative closed” and the NVC will process just the immigrant visa application;
The spouse applies for a K-3 visa at the Consulate;
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.
Although the K-3 visa supposedly allows the spouse to enter the U.S. to “await the approval of [the I-130] and the availability … of an immigrant visa”, in practice, the K-3 is not a very popular option. And that is because a) USICS routinely delays adjudicating the K-3 petition (filed on Form I-129F) so that it is adjudicated simultaneously with the related I-130; and b) The NVC will “administratively close” a K-3 visa application if it receives the approved I-130 from USCIS before NVC finishes processing the K-3 case.
Factors To Take In Consideration:
1. Are You Ready to Get Married? If you’re not ready, the K-1 may be the best option. Perhaps you want to get to know each other better before marriage, or you may want to have a chance to spend time together in the U.S. before marriage.
2. Where Should You Get Married? The purpose of the K-1 is to come to the U.S. for marriage. For the K-1, marriage must take place in the U.S. within 90-day following admission in K-1 status. In contrast, for the K-3 or immigrant visa, the couple must first marry (either in the U.S. or abroad), then file the I-130 petition. It is important to note that you are not married for legal purposes if you only had wedding banquet or a religious ceremony abroad.
3. Which Option is Faster? The K-1 visa is usually the fastest (currently 5-10 months, from the date of filing to the date of admission), and the immigrant visa usually slower (10-16 months), and the K-3 visa is somewhere in between. In cases where the U.S. citizen spouse resides abroad, it may be fastest to seek an immigrant visa by filing the I-130 petition with a USCIS international office or, in exceptional circumstances, with a U.S. Consulate.
4. When Will I Receive Employment Authorization? 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. In contrast, a K-1 or K-3 applicant has to apply for an employment authorization card, which takes approximately 90 days.
5. When Will I be Able to Travel Internationally? A K-1 visa is valid for a single entry. Therefore, no international travel is possible until the foreign spouse files a Form I-485, along with an application for advance parole. Advance parole is typically issued within 90 days of filing; expedited processing is granted certain situations. Only then may the foreign spouse depart the U.S. In contrast, since an immigrant visa holder becomes a permanent resident upon admission to the U.S. for the first time, international travel is possible immediately. And a K-3 visa is valid for two years and multiple entries to the U.S., so international travel is possible immediately.
6. Which Consular Post Has Jurisdiction? For the K-1 or immigrant visa, the visa is ordinarily but not always adjudicated by the Consulate with jurisdiction over where the applicant resides. For the K-3, if the couple married abroad, the visa may be issued only in the country where the marriage took place, and if the marriage took place in the U.S., then the visa may be issued only by the Consulate with jurisdiction over where the applicant resides.
7. What is The Risk of Denial? This risk is slightly lower for a K-3 or Immigrant Visa than it is for a K-1:
For a K-3 or immigrant visa, the spouse must prove to the consular officer’s satisfaction that at the time of marriage the couple intended to have a life together (a valid relationship), not merely to marry for immigration purposes. For a K-1, the couple has to prove both that the couple intends to marry within 90 days of entry to the U.S. and that the relationship is valid.
Also, an approved K-1 petition is valid for 4 months. It may be extended (“revalidated”) by a consular officer upon a finding that the couple are free to marry and intend to marry within 90 days of entry. The revalidation is for 4 months, and multiple revalidations can be granted. However, the longer the period of time that passes, the more the officer may be concerned about the parties’ intentions. In sum, there is a risk for a K-1 petition that an officer who is not convinced of the validity of the marriage may refuse as a matter of discretion to revalidate the petition.
8. Sons’ and Daughters’ Visa Eligibility: If the foreign spouse has a son/ daughter age 18 or over on the date of the marriage, the son or daughter is ineligible for an immigrant visa on the basis of a petition by the step-parent. You should consider the K-1 or K-3 strategy if the son or daughter is age 18 or over but not yet age 21.
9. Level of Confidence That Permanent Residence Will Be Granted: For any visa application there is some risk that the visa may not be approved. The immigration lawyer can help evaluate that risk. In some cases, couples that have not yet married choose the K-1 option over the K-3 or immigrant visa because that way if the visa is denied the couple has a chance to re-evaluate whether they still want to get married given that obstacle to living together in the U.S.
10. If You Foresee Problems with the Form I-864, Affidavit of Support: If you foresee problems with the I-864, Affidavit of Support, then the K-1 visa may be slightly easier. An applicant for either a K-1 or an immigrant visa must prove they won’t be a public charge. A K-1 applicant needs to show only that he or she will be able to subsist at 100% of the U.S. Poverty Guidelines Level. K-1s can rely on their own income and assets, as well as a Form I-134, Affidavit of Support, by the U.S. citizen petitioner and/or other sponsor. In contrast, the sponsor for an immigrant visa, must pass a slightly stricter test. The sponsor must submit the Form I-864, and prove the ability to support the sponsored immigrant at a strict 125% of the U.S. Poverty Guidelines. Sometimes relying on a joint sponsor, household member, and/or the foreign spouse’s assets and income might be helpful.
11. Petitioner’s Domicile: For a foreign spouse to qualify for an immigrant visa, the U.S. citizen petitioner must either be domiciled in the U.S. or plan to reestablish domicile in the U.S. not later than when the foreign spouse enters as an immigrant. In contrast, the K-1 and K-3 do not have this domicile requirement, so they can be filed even if the foreign spouse plans to move to the U.S. before the petitioner.
12. Legal Fees: The immigrant visa typically has slightly lower legal fees because it involves filing one petition and one visa application. The legal fees for a K-3 are slightly higher because a second petition must be filed. And the legal fees for the K-1 are slightly higher than that because after admission to the U.S. with the K-1 visa a Form I-485, Application to Adjust Status, must be filed.
13. Budget for Key Expenses:
14. Issues for Same-Sex Couples: A key issue is where to get married. Some U.S. states recognize same-sex marriages, while others do not. (Civil unions and domestic partnerships are not recognized as marriages for immigration purposes). For purposes of a K-1, the law of the place where the marriage takes place is key, not the law of the state where the couple will reside. Applying for an immigrant visa may be challenging if the foreign fiancée’s jurisdiction does not perform same-sex marriages, but it’s possible to get married in the U.S. or a third country. For purposes of a K-3 visa, the visa may be issued only in the country where the marriage took place (or, if there is none, at a Consulate designated by the State Department).
15. Wedding Planning: For K-1 visa applicants, wedding planning in the U.S. may be difficult because it cannot be predicted exactly when the K-1 visa will be issued and, therefore, when the 90-day window to be wed will occur.
16. IMBRA Filing Limitations for K-1s: A U.S. citizen who has filed two or more K-1 petitions at any time in the past or had any K-1 petition approved within the prior two years is not allowed to file a new K-1 petition unless USCIS grants a waiver of these limitations as a matter of discretion. No waiver will be given to a petitioner with a history of violent offenses except for narrow exceptions. These limitations do not apply to I-130s or K-3 petitions.
There may be other available options not covered here (just for example, applying for an H-1B or L-1 work visa).
If the foreign fiancée or spouse is physically present in the U.S., it may be possible to marry in the U.S. (if not yet married) then file with USCIS both the I-130 and the Form I-485, Application to Adjust Status, in which case no visa application at a Consulate abroad is necessary. However, beware that entering the U.S. by misrepresenting one’s purpose or hiding a preconceived intent to immigrate can lead to denial of the Form I-485.
An immigration attorney may be able to assist you in choosing the right visa strategy. Family-based immigration is a lengthy, sometimes complex, and ever-changing process. Some people are ineligible to immigrate, and others can only immigrate by qualifying for a special “waiver” of ineligibility grounds. It’s common for immigration cases to be delayed and the couple kept apart if specific procedures are not carefully followed at each step along the way, or if incomplete information or documentation is submitted. I encourage every couple to at least consult with a qualified and experienced immigration lawyer to find out if there are any hidden pitfalls.