If you are a U.S. Citizen planning to marry a foreign spouse (or the other way around) and expect to live in the U.S., you will want to know the best path for your spouse-to-be to get a Green Card. You have a couple of different options, the best option for you and your fiancé(e) can depend on your circumstances. An immigration attorney can offer advice on which is the best path forward for you and work with you through every step of the process.
What is a Fiancé Visa?
A Fiancé Visa, also known as a K-1 Visa, allows your foreign fiancé(e) to travel to the U.S to marry you, their U.S citizen Petitioner. However, this must take place within 90 days of their arrival. Once married, your spouse can apply for permanent residency.
What are the Eligibility Requirements for a Fiancé Visa?
In order to sponsor your fiancé(e), you will need to meet the following basic requirements:
- You must be a U.S. citizen. Permanent Residents are not eligible.
- You and your fiancé(e) must plan to marry within 90 days of their arrival to the U.S. It is ideal if you have set wedding plans. Still, realistically this can be difficult because predicting your fiancé(e)’s arrival date can be complicated. Nevertheless, you should try to plan as much as possible; this will help demonstrate that you plan to marry. Consider purchasing a wedding gown, drawing up a guest list, and crafting a basic outline of your plans for the ceremony and reception. You and your fiancé(e) can also submit written statements confirming your intention to marry.
- You must both be legally free to marry. If you or your spouse were previously married, you would have to provide divorce or death certificates.
- You need to have seen your fiancé(e) in person within the last two years. With the increase of online dating, it is not unusual for couples to have never met in person. Surprisingly, many are unaware of this requirement ahead of time, complicating their plans. Under certain circumstances, you can request waving this requirement. For instance, if meeting in person would violate long-standing cultural practices, or if you can demonstrate that this requirement would cause you extreme hardship. Be aware that such waivers are hard to obtain.
- You must demonstrate proof of your relationship through evidence such as photos of you and your fiancé(e) together. You could also supply copies of correspondence and affidavits of people who can attest to your relationship.
- You must have an income equal to or higher than the poverty level.
What is a Marriage-Based Green Card?
Let’s say you are already married. As such, you can sponsor your spouse for a Marriage-based Green Card, but only if you are a U.S. Citizen or Permanent Resident. Your spouse can live and work anywhere in the U. S. because this green card grants them “permanent resident” status.
If you choose to marry in the U.S., you should be aware that your fiancé(e)’s visa type and the timing of your marriage can sometimes have an impact on their Green Card application. Consult with an immigration attorney at Brudner Law Immigration Law Firm beforehand, especially if you plan to marry in the U.S. Our lawyers are prepared to help you with your immigration application.
What are the Eligibility Requirements for a Marriage-based Green Card?
The eligibility requirements for a Marriage-based Green Card differ slightly depending on your spouse’s plans. Do they plan to receive their Green Card inside the U.S. or overseas at a U.S. consulate?
To adjust status inside the U.S., your spouse:
- Must be legally married, and you must be a U.S. Citizen or Permanent Resident.
- Must be physically present in the U.S.
- Must have legally entered the U.S.
- Must be admittable to the U.S. (i.e., have legal immigration status, no serious criminal background, no disqualifying health conditions, etc.) or obtain a waiver.
- You and your foreign national spouse must have an income of at least 125% of the poverty level.
These are general requirements; however, there are exceptions to these in some instances.
Additionally, your spouse does not have to be physically present in the U.S. if they receive their visa at a U.S. consulate. It is also a more viable option if they have had any irregularities with their immigration status.
How is a Fiancé Visa Different from a Marriage-based Green Card?
When it comes to legal language, visas and green cards can be quite confusing. Here are some key differences between the two types of visas.
- Not yet married
- Sponsor must be a U.S. Citizen
- Temporary visa
- Can only marry inside the U.S.
- Can only apply for Green Card from inside the U.S.
Marriage-based Green Card
- Already married
- The sponsor can be either a U.S. Citizen or Permanent Resident.
- Permanent visa
- Can marry either inside or outside the U.S.
- Can apply for a Green Card either inside or outside the U.S.
These lists show how the Fiance(e) Visa and Marriage-based Green Card differ in purpose and requirement. Likewise, the application process is also different.
Fiancé Visa Process
- File form I-129F for your foreign fiancé(e)
- Fiancé(e) applies for K-1 Visa at a U.S. consulate
- Fiancé(e) travels to the U.S. within six months of visa issuance
- You and your fiancé(e) get married within 90 days of their arrival
- Spouse files form I-485 and other supplemental forms to receive permanent residency inside the U.S.
- You and your spouse appear at a USCIS office for an interview.
Marriage-based Green Card
If receiving Green Card inside the U.S.:
- File form I-130 on the spouse’s behalf.
- The spouse files form I-485 and other related supplemental forms; these can be filed simultaneously as form I-130 if you are a U.S. Citizen.
- Expect a waiting period if you are a Permanent Resident.
- You and your spouse appear at a USCIS office for interview.
If applying to receive a Green Card at a U.S. consulate:
- File form I-130 on the spouse’s behalf.
- Upon approval of the I-130, you and your spouse must submit financial and civil documents.
- The spouse must submit an Immigrant Visa application.
- The spouse has a visa interview at a U.S. consulate.
- The spouse receives an Immigrant Visa, travels to the U.S., and enters as a permanent resident.
Fiancé Visa vs. Marriage Visa: Some Terminology
As mentioned above, navigating the legal jargon of immigration can leave some confused. Compiled below is a list of commonly used terms.
USCIS: United States Citizenship and Immigration Services, the government agency that administers the U.S.’s immigration and naturalization processes
K-1 Visa: The visa type for a foreign national fiancé(e), allows them to travel to the U.S. to marry.
Adjustment of Status: The process allows someone to receive their Green Card without having to leave the U.S.
Form I-129F, Petition for Alien Fiancé(e): Form filed with USCIS by a U.S. Citizen on behalf of their foreign national fiancé(e) so they can receive a K-1 Visa.
Form I-130, Petition for Alien Relative: Form filed with USCIS, allows a U.S. Citizen or Permanent Resident to sponsor their family member (including spouses) for a Green Card.
Form I-485, Application to Register Permanent Residence or Adjust Status: Form filed if a person is applying for a Green Card through Adjustment of Status
Concurrent Filing: Filing forms I-130 and I-I-485 at the same time
CR-1 and IR-1 Marriage Visas
A CR-1 Marriage Visa is for conditional residents. Governments grant conditional residency if a marriage is less than two years old. It is valid for two years, after which your spouse must apply to have the conditions removed. They will then receive an IR-1 Visa designated for immediate relatives, including spouses that have been married for more than two years.
K-3 Spousal Visa
The K-3 Visa is a temporary visa that allows you, if you are a U.S. citizen, to bring your foreign citizen spouse to the U.S. before their Green Card petition is approved. In theory, it is supposed to be a faster option compared to the Green Card process, allowing spouses to be reunited more quickly. In reality, processing times for this visa type are often as long as the Green Card process. As a result, this visa type is no longer frequently used.
What is the Processing Time for Marriage Visas and Fiancé Visas?
Processing times vary based on the residence of you and your spouse or fiancé(e) and whether or not you are a U.S. Citizen or Permanent Resident. For a Marriage-based Green Card, you can expect the process to take a while; the most typical wait is 12-18 months. However, the process can range anywhere from under six months to more than three years. Fiancé(e) Visas typically take about 5-8 months for USCIS processing. It then can take anywhere from a couple of days to two to three months to get a consular appointment.
Which One Should I Choose: a Marriage Visa or a Fiancé Visa?
Choosing the visa that best meets your needs depends on your individual situation. Some factors that might make a Fiancé Visa the best option include:
- You want to get married in the U.S.
- Fiancé(e) Visa processing times are usually, but not always, faster.
- Factors impede getting married in your fiancé(e)’s home country. Same-sex or interfaith marriages are a few examples of marriages that some nations do not allow.
- You will not have to be separated from your spouse after you get married.
Getting married and then applying for a Marriage-based Green Card might be your best option if:
- You want to get married overseas.
- You are a Permanent Resident, not a U.S. Citizen.
- You have not seen each other in person in the past two years.
U.S. immigration laws are very complex. The right immigration attorney will help you navigate the process and advise you on which option is best for you. Consulting an attorney before making any marriage-related decisions can help you avoid unpleasant surprises.
Contact Brudner Law today and find out how we can help you navigate this complicated process.