If you are a U.S. citizen who married a foreign national or your fiancé(e) is a foreign national, there are two different ways that you can use to bring your foreign spouse, (or future spouse) to the United States.
If you are unsure which path to choose — obtaining a fiancé(e) visa or marriage visas, don’t worry, you are at the right place.
Each of these options — a fiancé(e) visa or marriage visa — has pros and cons, and if fiancé(e) visa is the best choice for one couple, it may not be perfect for another. To make the right decision when choosing between fiancé visas and marriage visa, it is important to compare the speed of the processes, costs, and other factors that are important for you or are of the essence for your case.
After reading this article, we believe you will know which path to take – whether to go for a marriage visa or fiancé visa, but if you are still unsure and would like to get help from an immigration attorney to raise your chances of getting a green card (becoming a legal permanent resident) without delays and common mistakes that people usually make when applying on their own, contact our law firm today!
Reach out to the Herman Legal Group law firm via +1-216-696-6170 . If you prefer to speak with the immigration lawyer Richard Herman, you can also book your consultation online.
What Is a Fiancé(e) Visa?
The fiancé visa (K-1 visa) is a nonimmigrant visa, and temporary visa, intended for a foreign fiancé who needs to travel to the U.S. to get married. In other words, a fiancé visa isn’t available to future spouses that already live in the United States.
A fiancé visa is issued by the United States Citizenship and Immigration Services (USCIS).
Before filing for a K-1 fiancé visa, there are a few requirements that a couple must meet—one of those is that a couple has seen each other in person within the previous two years. As an alternative, a foreign citizen has to show good reason (as extreme hardship), or a cultural reason for remaining apart.
After getting the K-1 visa and entering the U.S., the couple must get married within 90 days of entering or departing the counry.
Marriage Visa
Unlike fiancé visa, the marriage visa (CR-1 or IR-1 visa) is an immigrant visa intended for the foreign spouse while they are still in the foreign country after getting married to the U.S. citizen or green card holder (permanent resident).
The marriage visa requires that a foreign spouse who wants to apply for a marriage green card does it for immigration purposes to the U.S. to live permanently with his or her spouse.
Consular Processing
Consular processing is the path that most immigrants will have to go through to obtain a green card. The foreign spouse stays outside the United States until the immigrant visa is approved.
Once the immigrant visa is approved, the U.S. embassy or consulate will send your application package to the National Visa Center (NVC). After the NVC has completed a review of your petition, it will send the file to the U.S. consular office in the country where you filed the petition that is usually foreign spouse’s home country.
Consular Interview
At this point, the foreign spouse attends an interview at the U.S. consular office. During the interview, a consular officer will discuss the contents of the applicant’s petition, verify if any grounds of inadmissibility exist, and ask questions that can help determine the eligibility for obtaining the green card.
You can expect that the consular officer will also ask you a set of questions about your relationship and legally valid marriage, making sure it is bona fide, that you are legally married, and that you do not use it only for immigration purposes without the intent to live together afterward.
National visa center
Whether you choose the fiancé visa, or marriage visa process is up to you and your specific situation.
For many couples, the processing time of the immigration process is an essential factor to take into account, but there are other factors to consider when choosing which application process to take, as well.
The Differences Between K1 Fiancé Visas and Marriage Based Green Card?
Eligibility Differences
When considering whether to apply for a K-1 Fiance Visa or a Marriage Green Card, the start point is, of course, to think of the eligibility criteria that you need to meet.
The eligibility criteria are different for the fiance of a U.S. citizen and green card holders.
Let’s look at what each of these categories requires.
The K-1 Fiance Visa Applicants need to:
- Be a fiance of a U.S. citizen (not of green card holders) with an income of at least 100% of the Federal Poverty Guidelines. If these criteria are not met, an applicant has to file an additional Form I-864 or Form I-864A with the K-1 visa application.
- Intend to get married to a U.S. citizen within 90 days upon entry to the U.S. on a K-1 visa and provide evidence of this intent
- Prove the relationship’s legitimacy with a U.S. citizen fiance by providing related evidence such as photos, correspondence, joint bank account statements,etc.
- Prove that any previous marriages are legally terminated: provide marriage certificate for all previouse marriages, death certificate of deceased spouses, divorce certificate, or annulment (a U.S. citizen fiance also needs to prove this if applicable.)
- Prove that they have met their U.S. citizen fiances at least once in the past two years, or if it can’t be proven for religious or financial reasons, to be able to waive this requirement.
Important note: Same-sex couples are eligible for the K-1 Fiance Visa and all of the above applies to same sex marriages.
K-1 Visa Processing Time
The sponsoring spouse of a K-1 fiance visa starts the process by filing the I-129F form with USCIS and required supporting documents. The main aim of this process is to establish a bona fide relationship between the foreign fiancé(e) and the U.S. citizen. After two to three weeks, the USCIS will send the U.S. citizen notice of receipt.
If during the review USCIS notice there is some missing information, the officer will then notify the petitioner requesting additional information and documentation to process the petition, so be careful when preparing your application package since this can cause delays in processing.
The processing time of a K-1 fiance visa is approximately 9-12 months.
Marriage-Based Green Card Consular Processing Time
The processing time of marriage-based green cards is approximately 11 to 32 months.
Filing Marriage Based Green Card Petition by U.S. citizen spouse
First, the couple must get married outside the U.S. and, after that, determine whether the foreign national spouse is eligible for a green card.
If the foreign spouse meets eligibility criteria, U.S. citizen spouses or green card holders must file Form I-130, Petition for Alien Relative to the USCIS, along with supporting documents and filing fees on behalf of marriage green card seeker.
If USCIS approves the I-130 petition, they will forward the application package to the National Visa Center (NVC) at the U.S. State Department. When NVC receives the approved petition, they will assign a case number and forward it to a U.S. consulate or embassy nearest to where the foreign fiance lives.
This phase can take up from 6 to 15 months.
Applying for a Marriage Green Card from Within the U.S. BY THE FOREign spouse
This phase of the process starts with submitting a green card application package. Unlike the I-130 petition that needs to be submitted by a U.S. citizen spouse or a green card holder (lawful permanent resident), the foreign spouse files the green card package that contains:
- Form DS-260, Immigrant Visa and Alien Registration Application,
- Required filing fees
- The supporting documentation (such as a marriage certificate showing spouses’ names and date of the marriage)
Importance of 90 Days Rule
If you miss the deadline and fail to file an adjustment of status application (register permanent residence) within 90 days of the marriage, you will have to leave the U.S., and your K-1 status will cease immediately.
If you continue being present in the U.S. without adjusting status, you will directly violate the U.S. immigration law and the terms of your visa. Staying beyond the terms of the visa can not only put you in deportation proceedings but can also negatively impact your chances of getting a marriage green card in the future.
If you intend to live in the U.S. permanently with your spouse, a timely filing of the adjustment of status application is essential. Many international couples choose to go through adjustment of status process instead of going through consular processing; since taking this path, you can go through the process of receiving a green card from within the U.S.
Of course, this applies only if you are in the U.S. legally, which a valid fiancé visa provides you.
Not all immigrants have the right to adjust status, but spouses of a U.S. citizen are qualified as immediate relatives.
Cost differences between Marriage Visa and K-1 Fiance Visa
The visa process costs for a K-1 visa and the marriage green card process differ.
Through the fiance visa process, you will need to pay various filing fees. Fees change from time to time, so we advise you to look for up-to-date information about it on the United States Citizenship and Immigration Services USCIS website and the most recent visa filing fees on the official website of the State Department.
However, filing fee for marriage visas is less than filing fee for K-1 visa.
Work Authorization Differences
Whether your foreign spouse can work in the U.S. once they enter the United States is a vital thing to assess for many couples.
Just as a reminder: the U.S. immigration and labor laws allow a person to work only after obtaining Employment Authorization Document (EAD). Spouses on a K-1 Fiancé Visa and marriage green card holders take different paths to obtain the work authorization document.
1# Working with a K-1 Fiance Visa
Unlike spouse visa holders, K-1 Fiancé Visa holders can’t work in the United States unless they apply for and receive a work authorization document. They can seek EAD upon entry to the U.S. by filing a Form I-765 with USCIS and paying $410 filing fees. USCIS usually takes 2-3 months to process the work permit application, but the processing times depend on the backlogs of the USCIS service center.
Your work permit will be valid only as long as your K-1 status is, so it’s not rare that the short-term work permit arrives towards the end of the 90-day validity period due to backlogs, in which case it is not that useful.
There is an option of applying for a longer-term work permit by submitting Form I-765 along with Form I-485, Application to adjust status.
2# Working With a Marriage-Based Green Card
This usually isn’t an issue since most immigrants can’t enter the United States until they obtain a green card. But, those who already live in the U.S. on another status (in case they are not authorized to work with it) cannot work until they receive a marriage green card. When you receive physical green card, you will no longer need the work permit since your marriage-based green card authorizes you to work in the United States.
What If the U.S. Government Denies My K-1 Fiance Visa or Marriage-Based Green Card Application?
If you get the denial of your K-1 Fiance Visa or marriage visa, you may be able to appeal the decision.
But, we highly advise you not to do it on your own. Challenging your or your spouse’s eligibility for a green card (permanent residence) is a burden that you must undertake, so having an experienced attorney on your side is an advantage to take into account. Failing to appeal the decision can not only impact your current application but other future fiance visa or marriage visa applications as well.
How An Immigration Attorney Can Help Me?
No matter whether you choose the marriage visa or a fiance visa, having an experienced immigration lawyer with whom you will build a strong attorney client relationship can make the entire process less stressful and less complicated, preventing you from making wrong steps.
Herman Legal Group law firm has been providing legal services for more than 25 years, handling complex cases and helping foreign citizens prepare all kind of immigration forms, successfully go through the green card application process and obtain marriage green cards. Your attorney will be able to lead you through the marriage visa or fiancé visa process and help you handle different scenarios. Our immigration attorneys can help you navigate the case.
Schedule a personal consultation with Attorney Richard Herman by calling 1-216-696-6170, or by booking online. Consultations can be conducted by zoom, skype, whatsapp, facetime, or in-office.
