The Difference Between a Fiancé Visa and a Marriage Green Card
If you are trying to decide whether to apply for a fiancé(e) visa, or marry your fiancé(e) and then apply for a marriage green card, you are going to need to understand the difference between the two. The differences between these two approaches are significant, and you could still be feeling the effects of your choice years down the road.
The simplest way to state the difference between a fiancé(e) visa and a marriage green card petition is that a fiancé(e) visa is for couples who are not yet married, while a marriage green card petition is for couples who have already married. The difference runs deeper than this, however:
- If you are a permanent resident rather than a US citizen, a marriage green card petition is your only option — a permanent resident cannot act as the sponsor for a fiancé(e) visa.
- A fiancé(e) visa, also known as a K-1 visa, allows your fiancé(e) legally enter the US and remain for 90 days. Once your fiancé(e) arrives in the US and marries you, an adjustment of the status petition can be filed to petition for permanent residence. By contrast, if you apply for a marriage green card from overseas, your spouse will be considered a permanent resident the moment he or she is admitted — before even leaving the airport (although it will take a little time for the physical green card to arrive in the mail).
- If you have already been married for at least two years, your spouse will likely be offered “unconditional permanent residence” upon entry to the US. Under a fiancé(e) visa, your fiancé(e) will receive the less favorable “conditional permanent residence” for the first two years of his or her residence in the US (see below for details).
- If you are in a hurry to enter the US, the processing time can be considerably shorter for a fiancé(e) visa petition than for a marriage green card petition. Your fiancé(e) would be able to enter the US sooner on a fiancé(e) visa, even though he or she wouldn’t necessarily receive permanent residence any sooner that way.
- The cost of a fiancé(e) visa plus a permanent residence petition is considerably higher than the cost of a marriage-based green card petition by a margin of several hundred dollars. An exact figure cannot be given because the cost of the medical examination varies from doctor to doctor.
- Your minimum income, either alone or together with a joint financial sponsor, must meet 100 percent of the Federal Poverty Guidelines to successfully petition for a fiancé(e) visa. If you petition for marriage-based immigration, your minimum income must meet 125 percent of the Federal Poverty Guidelines.
- Obviously, a marriage green card application is your best option (and perhaps your only option) if you are already married. Divorcing and then getting re-engaged so that you can apply for a fiancé(e) visa, in case you were considering that option, would likely raise serious questions about the legitimacy of your marriage.
Who is Eligible?
The USCIS applies strict eligibility requirements for fiancé(e) visas, as follows:
- As mentioned above, you must be a US citizen to act as a sponsor for a fiancé(e) visa. US permanent residents cannot act as sponsors.
- Both partners must be single at the time the visa petition is submitted. Polygamous marriages are not recognized, even if they are legal in the jurisdiction in which the petition is submitted. If either partner has ever been married, the marriage must have been legally terminated prior to the petition date.
- You must have met your fiancé(e) in person within the last two years unless (i) extreme hardship prevented you from meeting, or (ii) an in-person meeting would violate applicable cultural norms.
- You must prove the legitimacy of your relationship, preferably through documentary evidence such as correspondence, photos, etc. Cultural norms will be taken into consideration when assessing the legitimacy of your relationship.
- Before a visa will be issued, each partner must submit a signed statement of their intention to marry within 90 days of arrival in the US.
- As stated above, your adjusted gross income (AGI) on your most recent federal tax return must meet or exceed 100% of the Federal Poverty Guidelines. Otherwise, you will need a joint financial sponsor to file a supplemental “affidavit of support” that will guarantee your fiancé(e)’s financial support while he or she is in the US. Some embassies, such as the one in Manila, Philippines, do not allow joint sponsorship at the time of this writing.
You may sponsor a same-sex partner for a fiancé(e) visa, even if same-sex marriages are illegal in the jurisdiction where the petition is submitted. In fact, a fiancé(e) visa might be the only immigration option in a jurisdiction where same-sex marriage prior to immigration is not permitted.
How does the Process work?
Following is a general rundown of how the fiancé(e) visa process works. See Applying for a Fiancé Visa: A Step-by-Step Guide for further details.
- File Form I-129F with the USCIS along with a $535 filing fee and all supporting documentation You must submit this form yourself — your fiancé(e) cannot submit it. You should receive a receipt notice within 30 days.
- If your petition is successful, you can expect to receive an approval notice within six to nine months. Once this happens, the USCIS will transfer your petition to the US State Department.
- Your fiancé(e) will receive notification of the date and time of the visa interview at a US embassy or consulate in his or her home country, along with a list of documents to bring to the interview.
- Your fiancé(e) will have to complete a medical exam from a USCIS-approved doctor.
- Your fiancé(e) must complete State Department Form DS-160 online and print out the confirmation page. He or she must also gather all documents necessary for the interview, including certain documents that only you can provide.
- Your spouse’s visa interview will take place at the embassy or consulate within four to six weeks after the interview notice is sent. A decision will be made either immediately after the interview or shortly thereafter. In some cases, the officer will request additional information. Once a positive decision is made, a visa will be stamped onto your fiancé(e)’s passport.
- Your fiancé(e) may then enter the US any time within four months after the issue date of the visa.
- You must marry your fiancé(e) within 90 days of the date that he or she enters the US. This deadline is not extendable. If 90 days expire without your fiancé(e) either marrying you or leaving the US, his or her presence in the US will be unlawful. Please note that your fiancé(e) cannot extend his or her legal status by marrying someone else within 90 days — only marriage to you will comply with the terms of the fiancé(e) visa.
Pitfalls to Avoid
Following are some of the most common avoidable reasons why fiancé(e) visa petitions are rejected:
Submission of a sloppy or incomplete petition
The USCIS rejects thousands of petitions every year simply because sponsors forgot to sign them. Other ways that an otherwise solid application could be rejected include illegible handwriting, failure to include evidence of the legitimacy of the relationship, and failure to submit sufficient evidence of the termination of a prior marriage.
Failure to comply with the terms of the International Marriage Broker Regulation Act (IMBRA)
If you met your fiancé(e) through an international marriage broker then the IMBRA requires, among other things, that you disclose certain crimes that you may have been convicted of on your fiancé(e) visa application, and limits the number of times you can apply for a fiancé(e) visa with different partners.
Presence of certain application “red flags”
“Red flags” that can raise USCIS suspicions about the legitimacy of your relationship include a large age difference, limited or nonexistent communication ability due to lack of a common language, and wide cultural or religious differences. In many cases, it is not a single factor, but a combination of factors, that leads to USCIS rejection of a fiancé(e) visa application.
The K-2 visa is designed to allow your fiancé(e)’s children to accompany your fiancé(e) to the US. These children must be under 21 and unmarried at the time they enter the US. Eligible children include:
- Biological children born in wedlock;
- Biological children born out of wedlock, as long as your spouse’s jurisdiction legally recognizes these children as his or hers; and
- Adopted children.
As the sponsor, you must include the names of any children you wish to be allowed to immigrate on the fiancé(e) visa petition (Form I-129F). The USCIS will send you additional forms to be filled out by them and on their behalf. Certain restrictions apply, such as:
- The parent-child relationship will have to be proven with documentary evidence.
- The benchmark for the Federal Poverty Guidelines will rise to reflect the increased cost of extra mouths to feed.
- Additional visa fees will be imposed.
- The children must have passports.
- The children must undergo a medical exam.
- If local custody laws so require, you may need permission from the children’s other parent to take them to the US.
Strictly speaking, it is next to impossible to work while on a fiancé(e) visa. The reason for this is not that it is illegal per se to work on a fiancé(e) visa, but that you have to apply for a work permit using Form I-765, and the permit takes 45-90 days to process. The good news is that as long as you marry your fiancé(e), he or she is permitted to work while the green card application is pending. After the green card is issued, no permit is required to work in the US.
The ultimate goal of applying for a fiancé(e) visa, of course, is to eventually obtain permanent residence for your fiancé(e) so that you can live in the US together for as long as you like. Some points to note:
- You may sponsor your fiancé(e) for a marriage-based green card as soon as you marry, and he or she may remain in the US while the permanent residence petition is pending. You should submit the permanent residence petition before the 90-day period granted by the fiancé(e) visa expires.
- The process of transitioning from fiancé(e) visa to permanent residence could take up to a year after your fiancé(e) enters the US (it could take more or less time, depending on how the political winds blow in Washington, D.C.).
If the petition is successful, your fiancé(e) will receive “conditional permanent residence” which, although called “permanent”, only lasts for two years. Within 90 days before the two-year period ends, you and your fiancé(e) will have to jointly submit Form I-751 and perhaps attend a USCIS interview. Only then will your spouse be granted unconditional permanent residence. In some cases, a fiancé(e) may file Form I-751 independently even after a divorce.
What Happens If You Fail to Marry Your Fiancé within 90 Days?
If you fail to marry your fiancé(e) within 90 days of his or her arrival in the US, and your fiancé(e) fails to leave the US during that time, he or she will fall out of status — in other words, your fiancé(e)’s continued presence in the US will be illegal starting on Day 91, and he or she will be subject to possible deportation proceedings immediately. Remaining in the US illegally for six months or more will subject your fiancé(e) to a three to ten-year ban from re-entering the US.
In this situation, it is possible to regain legal status for your fiancé(e) by marrying him or her in the US after the 90-day window expires. You will have to submit additional paperwork (namely, Form I-130) and pay extra fees, and your fiancé(e) will have to submit to another medical exam. Your failure to marry your spouse on time might also raise questions about the legitimacy of your relationship.
What the Future Holds
Under the Trump Administration, acceptance rates for fIancé visas have plunged. In 2015, during the Obama Administration, the USCIS approved about 99 percent of all fiancé(e) visa petitions. By late 2018 this figure had fallen to around 67 percent. The lower the fiancé(e) visa approval rate descends, the more attractive a marriage-based green card application is going to look.