Fiancé Visa or Marriage-Based Green Card

The good news is you have just gotten engaged. The bad news is you or your partner is not a U.S. citizen and you want to start building your life together in the United States.  Using our Virginia immigration attorney could make the process of immigration for your fiancé much easier. We can help you to avoid common immigration pitfalls and ensure all of your paperwork is in proper order before submitting it. We call also help you determine if you should get married before coming to the United States.

What is a Fiancé Visa?

Like all other United States visas, a fiancé visa or K-1 visa is issued by U.S. Citizenship and Immigration Services (USCIS). The couple applying for a fiancé visa generally must show that they have seen each other within the previous two years and that there is a true relationship between them. Once the fiancé visa has been granted, the couple must marry within 90 days of the noncitizen’s entry to the United States. The K-1 visa is not available to those who are already married.

Differences Between Fiancé Visa and a Marriage Green Card

Fiancés of U.S. citizens generally have two pathways for immigrating to the USA:

  1. The foreign partner could come to the U.S. on a K-1 fiancé visa, and then get married in the United States.
  2. The couple could get married outside the United States first and then the citizen spouse could sponsor the foreign spouse for a green card using an I-130 petition. This process may be referred to as the “IR1 / CR1 process”.

Each of the above methods has advantages and disadvantages. Before deciding which one is right for you, it is a good idea to contact an experienced Blacksburg immigration lawyer for help and advice.

Things to consider when before deciding which method is right for you:

  1. When do you want to hold your wedding?
  2. Where do you want the wedding to take place?
  3. Are there any religious or cultural considerations that may impact the decision?
  4. How long does it take for each method?

The following comparison may help answer some of those questions.Student Visa Attorney

Fiancé Visa Eligibility

The K-1 fiancé visa is available to fiancés of U.S. citizens living in other countries who intend to get married within 90 days of arriving in the United States. The K-1 fiancé visa requirements are:

  • Both parties must be single and eligible to be married under U.S. law.
  • Same-sex couples are eligible for a K-1 visa providing they meet all of the other criteria.
  • If either party has been previously married they would need to show proof of a divorce or a death certificate for their former spouse.
  • The sponsoring party must be a U.S. citizen. Green Card holders are not eligible.
  • You must prove that you have a true relationship with photos, correspondence, and written statements from people who know you as a couple.
  • It helps to have already arranged wedding plans in the US so that you can show invitations, venue reservations, or other proof that the wedding will take place. However, you can provide a signed statement that you intend to marry within 90 days of arrival.
  • You must have met in person at least once in the past two years, but this requirement can be waived for religious reasons or in certain other cases.
  • The party who is a U.S. citizen must meet certain income requirements.

Eligibility for Marriage-Based Green Card

A green card based on marriage is available to foreign spouses of US citizens and current Lawful Permanent Residents (green card holders) in the United States. A Virginia immigration attorney can help you with your forms and documents to ensure it is correctly prepared and filed. You will use the I-130 family petition form and several other immigration forms required to be submitted with it.

To qualify for a marriage-based green card:

  • You show that you have a valid marriage. Usually, this is done by showing a valid marriage certificate from the country where you were married. It must show both or your names, the place and the date of the marriage.
  • If you have been previously married, you will need to proof of divorce or a death certificate for your former spouse.
  • You may be asked to show proof that the marriage is not fraudulent. Leases, land deeds, banking records, photos, and other proof may be required.
  • The petitioning spouse will need to show that they meet the minimum income guidelines (income of at least 125% of the federal poverty guidelines).

K-1 and Marriage Green Card Process and Timelines

Most legitimately engaged couples will qualify for either the K-1 Fiancé or Marriage Visa. Knowing the process and how long it will take may factor into deciding which is right for you. Working with a Virginia immigration attorney will help ensure that the process goes smoothly and as quickly as possible. They may also help you to avoid mistakes that will add additional cost and time to the process.

K-1 Fiancé Visa Process

Generally, the processing time for a K-1 fiancé visa will be several months for the USCIS to approve the petition and 1-2 months for your fiancé to obtain their visa stamp at the U.S. consulate in their home country. Once your fiancé arrives and you get married, it could take more than a year before your fiancé receives a green card.

Once the fiancé petition is approved by USCIS, your fiancé will need to submit to a fingerprint scan, background checks, medical evaluation and an interview at the consulate or U.S. Embassy in the fiancé’s home country. The fiancé will receive a stamp in their passport which permits travel to the United States. The couple must then get married within 90 days of the fiance’s arrival and submit additional forms to adjust status to become a conditional green card holder. The fiancé may need to also apply for a work permit if they plan to work in the U.S. until their green card has been granted.

Marriage-Based Visa Process

If you are married already or you plan to get married before coming to the United States, you will need to apply for a marriage-based visa. The time it takes to receive a marriage-based green card may take a little over a year. 

The U.S. citizen spouse or Lawful Permanent Resident will need to submit an immigrant petition along with the other required documents to the USCIS. Once the petition is approved, the foreign spouse will be assigned a visa number and the documents will be sent to the U.S. Embassy or Consulate in their home country. You file a green card application package with the National Visa Center (NVC), including an online form (DS-260) and pay the filing fee. The foreign spouse will receive a notice to attend an interview at the embassy and will need to have a medical evaluation and bring with them any additional documents. If the case is approved, the foreign spouse receives a visa stamp in his or her passport that allows for travel to the United States. The foreign spouse then becomes a U.S. permanent resident as soon as he or she enters the United States. Typically 2-3 weeks later, the physical green card is mailed to the couple’s U.S. address.

Should I Choose a K-1 or Marriage Visa

If you are not married, a fiancé visa may get you to the United States a little faster but it will take a little longer overall to your green card. If you choose a K-1, you also need to be prepared to meet the required deadlines and file some additional documents once the fiancé arrives in the US.

If you are already married, then you must choose the marriage visa route. But, if you are not married and you are prepared for a longer separation before you can join your spouse in the U.S., a marriage-based green card may a good way to go.  You would obviously need to get married before applying and there may be other temporary visa’s that your new spouse may qualify for while you are waiting for the green card to be processed. You should discuss with Jeffrey Van Doren, PLLC whether your new spouse may qualify for such visas.

In either case, if you have been married less than two years, the result will the issuance of a conditional green card that is good for 2 years. Prior to the expiration of the conditional green card, you will need to apply to have the conditions removed. Three years after the green card is issued, you may apply for US citizenship if you are still married to your U.S. citizen spouse. If your marriage has ended, you must wait five years before you can become a citizen.

A Virginia Immigration Attorney Can Help

You may be tempted to try to apply for a visa without the assistance of an immigration attorney. While it may be possible, the reality is that the immigration process is extremely complicated and filled with problems that may cause your visa application to be delayed or denied. Chances are you will make a mistake that will make an already long process even longer. Before you try to go it alone, give us a call to schedule a consultation. We may be able to save you time and money.