“Green Card” is the popular name for a “lawful permanent resident card.”  There was a time these cards were green and the term “green card” is still being used to signify lawful permanent resident status cards.

Family unification has been one of the most important foundations of the development of U.S. immigration law.  In family unification, in many instances, it starts with the marriage of a foreign-born citizen and either a United States citizen or a lawful permanent resident (aka “green card” holder). Many couples who are engaged or married are now faced with having to go through the process of immigrating their fiancées/fiancés or their foreign-born citizen spouses so that they can be reunited and begin their lives as a family in the United States.

Many couples are confused at times because of the ever-changing immigration procedures and are concerned about what the most expedient process is so that foreign-born citizen fiancées/fiancés or spouses can immigrate to the United States. The immigration process for foreign-born citizen fiancée/fiancé visas or spousal visas are distinct and they each have their own requirements and processes.  A new development is that now with the United States Supreme Court’s ruling in Windsor v. United States, same-sex marriages, including same-sex engagements are treated no different than opposite gender marriages or engagement.

Fiancée/Fiancé Visa versus Marriage “Green Card”: Which is Better?

Fiancée/Fiancé Visa vs Marriage “Green Card”

There is no cut and dry answer to whether a fiancée/fiancé visa versus a marriage green card is better.  It will all depend on what you and your foreign-born fiancée/fiancé or spouse want to do. You both may need to consider some of these factors in deciding what process would be best to take:

  1. How quickly do you want to be reunited as a couple in the United States;
  2. If still engaged, are there any familial, cultural, or religious expectations on where and when you will marry;
  3. If already married, how quickly do you want your foreign-born spouse to immigrate into the United States; and
  4. Are there any financial concerns as to which visa to apply for to bring your fiancée/fiancé or spouse, and children if any, to the United States.

There are two ways for a foreign-born fiancée/fiancé or spouse can apply for a marriage “green card.”

Fiancée/Fiancé K-1 Non-immigrant Visa

K-1 Non-immigrant Visa

The process for couples who are still engaged and who want to get married in the United States is for the United States citizen (“petitioner”) to apply (“petition”) for a K-1 Fiancée/Fiancé Nonimmigrant Visa for his/her foreign-born fiancée/fiancé (“beneficiary”).

Advantages:

The main advantage of applying for a K-1 Fiancée/Fiancé Nonimmigrant Visa is that it is much quicker, in most cases, to process when compared to applying for an immigrant visa for a spouse. The other advantage is if the foreign-born fiancée/fiancé has children from a previous marriage or relationship, they are considered derivatives (included in one application) so that they too can be included in the application for K-1 Fiancée/Fiancé Nonimmigrant Visa using USCIS Form I-129F of their parent.

Disadvantages:

The main disadvantage when entering the United States with a K-1 Fiancée/Fiancé Nonimmigrant Visa is that the couple has to marry within 90 days of arrival or else the K-1 nonimmigrant visa holder and his/her K-2 nonimmigrant dependent child/ren will have to return to their country of origin before the 90th-day deadline.

This does not allow for the couple to plan any big weddings or for the foreign-born fiancée/fiancé and his/her child/ren to change their status to another visa. However, if the fiancée/fiancé and/or the children are victims of domestic violence or some qualified crimes they may be eligible for a U Visa.

Another disadvantage is that a lawful permanent resident can not petition for the foreign-born fiancée/fiancé.  Only United States citizens can petition for their fiancée/fiancé.

Legal Requirements for the K-1 Fiancée/Fiancé Nonimmigrant Visa

The petitioner (U.S. Citizen) and beneficiary (foreign-born citizen) must meet ALL of the requirements below:

  • The petitioner must be a U.S. citizen.

    Wedding Rings

  • The petitioner and foreign-born citizen fiancée/fiancé must be free to marry (i.e. all prior marriages must be terminated by divorce, annulment, or death of the former spouse by the time the petition is filed).
  • The petitioner and foreign-born citizen fiancée/fiancé must have met in person at least once within the past two years before applying (an exception is unless doing so would violate long-established cultural practices, traditional customs or cause extreme hardship for the petitioner).
  • The petitioner and foreign-born fiancée/fiancé must have a present intent to marry after the fiancée/fiancé visa is issued and must be willing to marry within 90 days of the fiancée’s/fiancé’s arrival into the U.S.
  • The foreign-born fiancée/fiancé has no criminal convictions, has no immigration violations and no history of immigration detentions, removals, and/or deportations. (There are waivers that may be available for some crimes and immigration violations but this requires careful consultation with an immigration attorney before applying).
  • The petitioner has filed taxes with the IRS during the previous three years, is currently employed (or self-employed), and is earning at least the minimum income level set forth by the U.S. Poverty Guidelines.
  • The petitioner has not filed two or more K-1 fiancée/fiancé visa petitions at any time in the past and has not had a K-1 visa petition approved within two years prior to the filing of the current petition (A waiver may be available for this requirement but this requires careful consultation with an immigration attorney before applying).
  • If the petitioner has been convicted of any of the following offenses, certified copies of all police and court records showing the charges and final disposition for every conviction must be submitted with the K-1 fiancée/fiancé visa petition: Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking; Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of these crimes; Controlled substance or alcohol-related Crimes where the petitioner has at least three convictions and where such crimes did not arise from a single act.

How to Apply for a K-1 Fiancée/Fiancé Nonimmigrant Visa

Applying for a K-1 Fiancée/Fiancé Nonimmigrant Visa consists of two steps involving the United States Citizenship and Immigration Services (USCIS) and the Department of State’s National Visa Center (NVC) and the Consulate where the foreign-born fiancée/fiancé resides.

Step One: Applying with the USCIS

  • The petitioner must file USCIS Form I-129F, Petition for Alien Fiancé(e). Note: A child (unmarried and under 21 years of age) of a K-1 nonimmigrant may apply for a nonimmigrant visa to accompany or follow-to-join the K-1 visa holder. The petitioner does not need to file a separate petition for the child/ren.  Their names must be included in the Form I-129F.  The children’s visa classification is K-2 nonimmigrant visa.
  • The supporting documents and information required are the following:
    • Evidence of petitioner’s U.S. citizenship which may include any of the following:
      • A copy of the petitioner’s birth certificate issued by a U.S. civil authority;
      • A copy of the petitioner’s original Certificate of Naturalization;
      • A copy of the petitioner’s original Certificate of Citizenship;
      • A copy of the petitioner’s Form FS-240, Report of Birth Abroad of a Citizen of the United States;
      • A copy of the petitioner’s valid, unexpired U.S. passport or passport card issued with a validity period of at least five years; or
      • A statement executed by a U.S. consular officer certifying that you are a U.S. citizen and the bearer of a currently valid U.S. passport.
    • Termination of petitioner’s and beneficiary’s previous marriages: If either the petitioner or beneficiary was married before, submit evidence that all previous marriages were legally terminated. Such evidence of termination of previous marriages may include a divorce decree, annulment, or death certificate issued by a civil authority.
    • Photographs: One color passport-style photograph of the petitioner and the beneficiary taken within 30 days of filing the petition.
    • Evidence of Legal Name Change: If either petitioner or beneficiary uses a name other than the one shown on evidence submitted in support of your petition, you must submit copies of the legal documents (such as a marriage certificate, adoption decree, or court order) reflecting the legal name change.
    • Form I-94 Arrival-Departure Record: If beneficiary traveled to the United States and the U.S. Customs and Border Protection (CBP) or USCIS issued the beneficiary a Form I-94, Arrival-Departure Record, provide the Form I-94 number and date that your beneficiary’s authorized period of stay expires or expired (as shown on Form I-94).  If the beneficiary traveled to the United States after April 30, 2013, she or he may get a free copy of the I-94 at the CBP website at www.cbp.gov/i94. If the CBP website does not have a copy of the I-94, a free copy can be requested by filing Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Record, with USCIS.
    • Passport and Travel Document Numbers: If beneficiary used a passport or travel document to travel to the United States, enter either the passport or travel document information in the appropriate space on the I-129F petition, even if the passport or travel document is currently expired.
  • Additional Supporting Documentation:
    • Declarations by petitioner and beneficiary stating “Intention to Marry Within 90 Days of Entry” of the beneficiary. The declarations can be jointly signed or separate.
    • In-Person Meeting. Submit evidence that petitioner and beneficiary met in person during the 2-year period immediately before filing the petition. Examples are the following
      • a written statement from petitioner and beneficiary stating the circumstances of their meeting (this can be included in the “intention to marry” declaration);
      • a copy of airline tickets, boarding passes of trips to visit beneficiary, immigration stamps from the country of the beneficiary of entries and departures, hotel receipts of stay in the country of the beneficiary, etc.
      • photos of petitioner and beneficiary together; can include photos of the petitioner, beneficiary, and family members.
      • If the petitioner claims that the in-person meeting requirement would result in extreme hardship, submit evidence to support the claim. Examples are a letter from a medical doctor if the claim is based on health reasons, evidence to claim financial hardship, etc.
      • If petitioner and beneficiary claim that the in-person meeting requirement would violate strict, long-established, and traditional customs of beneficiary’s cultural or social practices, include evidence that any and all aspects of the traditional arrangements have been or will be met in accordance with beneficiary’s custom or practice.

Form I-129F cannot be filed at a U.S. Embassy, Consulate, or USCIS office abroad. For filing instructions and current USCIS filing fees go to the USCIS link for the most current information.

U.S. Citizenship and Immigration Services

Step 2: Consular Processing

After USCIS approves the Form I-129f petition, it is sent to the Department of State National Visa Center (NVC). The NVC will give the petitioner a case number and send the petition to the U.S. Embassy or Consulate where beneficiary lives.

The U.S. Embassy or Consulate will send (either snail mail or email) to the beneficiary the specific instructions on how to apply for the K-1/K-2 visas.

The K-1 and K-2 beneficiaries will have to submit each of their own applications for their visas with the U.S. Embassy or Consulate.

  1. First, the K-1 beneficiary must complete the DS-160, Online Nonimmigrant Visa Application, at the Consular Electronic Application Center at https://ceac.state.gov/CEAC/.  Thereafter, if there are dependent minor children, complete each of their DS-160 online.
  2. Once complete, print the DS-160 confirmation receipt/s in order to bring to the K-1 beneficiary (and K-2 dependents) U.S. Embassy or Consulate interview.

In addition to the DS-160 confirmation receipts, K-1 beneficiary (and K-2 dependents) must bring the following required documents:

  • A passport with a validity date at least six months beyond beneficiary’s (and dependent children’s) intended period of stay in the U.S.
  • Original and copies of certified birth certificates.
  • Original and copies of divorce or death certificate(s) of any previous marriage(s) for both the petitioner and beneficiary.
  • Police clearance certificates from beneficiary’s present country of residence and all countries where the beneficiary has lived for six months or more since age 16. (Police clearance certificates are also required for accompanying children age 16 or older).
  • Medical examination by an authorized panel physician. The following website will have a list of authorized panel physicians in each country. (https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/list-of-posts.html)
  • Evidence of financial support; USCIS Form I-134, Affidavit of Support, may be requested by the U.S. Embassy or Consulate. This will be noted in the instructions.
  • Two (2) 2×2 photographs. See this link for specifications on photographs: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/photos.html
  • Evidence of the relationship between beneficiary and petitioner.  Note: Beneficiary should bring what was submitted by petitioner with the I-129F application and additional updated evidence that the relationship is genuine.
  • Fees involved:  The U.S. Embassy and Consulate instructions will state what fees are to be paid for the DS-160 online application, or any other fees they may require.
  • Petitioner and beneficiary should prepare for other costs involved in the process. These costs may include translation services, photocopying charges, government fees passport, police certificates, and birth certificates, and travel expenses, and in some countries the hotel and food expenses, to the U.S. Embassy or Consulate for the interview.

Documents in any other language other than the language of the country in which the application takes place, should be translated into English. However, best to refer to beneficiary’s letter of instructions from his/her Consulate processing the K-1 visa.

After the U.S. Embassy or Consulate Interview

Upon approval of the K-1 visa, beneficiary and petitioner can now arrange for their travel plans to go to the United States. The Consular Officer will give (or in some countries send by courier service) the beneficiary his/her passport with the K-1 visa and a sealed packet containing the civil documents beneficiary and petitioner provided, plus other documents prepared by the U.S. Embassy or Consulate.  The sealed packet can only be opened by a Department of Homeland Security official when beneficiary enters the United States.  The K-1 beneficiary must enter the United States either before (the children will follow-to-join) or at the same time as their dependent children holding K-2 visas.

Petitioner and beneficiary must marry within 90 days of the beneficiary’s arrival in the United States. Thereafter, the third step of obtaining a “green card” can begin, called “Adjustment of Status to Lawful Permanent Residency.”