U.S. citizens engaged to foreign nationals who want to live in the United States must ensure that their future spouse obtains the right immigration visa to avoid status problems down the line. The two main marriage-related visas are the K-1 Visa (known as the “fiancé visa”) and the Marriage-Based Visa (the “green card” visa).
The K-1 is generally for people who want to bring their foreign fiancé to the United States to marry, while the Marriage-Based Visa is for people who marry first and then petition for their spouse to immigrate. However, a range of factors may influence which visa is the best for your circumstances.
The K-1 Visa
The K-1 Visa authorizes a foreign fiancé who lives abroad to legally enter the United States and marry within 90 days of arrival. To be eligible for this visa, the foreign national must live outside of the U.S., intend to marry a U.S. citizen, have met the U.S. fiancé in person within the last two years, and are legally free to marry (single, divorced, or widowed).
You must be able to prove each element of these requirements in your visa petition, or the USCIS will deny your request. However, the “have met in person” requirement might be waived for cultural or hardship reasons with adequate proof.
The K-1 visa might be the best option if you intend to marry in the U.S. and can do so within 90-days of your fiancé’s entry into the country. It is also popular because the process only takes approximately six months to complete, longer during COVID. Once you marry under the K-1, your foreign national spouse may apply for an adjustment of status to become a legal permanent resident. (Lawful permanent resident or legal permanent resident are interchangeable and both are being used).
The Marriage-Based Visa
The Marriage-Based Visa allows people who are already married to a U.S. citizen to become legal permanent residents. A foreign national is eligible to apply for a Green Card if they can prove that: they are legally married to a U.S. citizen or legal permanent resident, the marriage is real (“bona fide”), and neither party is married to anyone else.
The USCIS scrutinizes proof of each of these elements and pays particularly close attention to the proof that the marriage is real. Note that you do not have to be married in the U.S. for the marriage to be considered legal.
You may prefer to pursue the Marriage-Based Visa if you want to marry overseas, the U.S. based person is a permanent resident, or you haven’t seen each other in person in the past two years. The process for the Marriage-Based Visa usually takes between 12-18 months. However, you may bring your foreign spouse to the U.S. while the petition is pending under a conditional visa.
If you or a loved one are even remotely considering getting married, you must discuss your plans with an experienced immigration attorney so that you are aware of pros and cons of your options, timelines, costs, and frankly, discovering what you didn’t know that you didn’t know. Our firm routinely handles these types of visas and are very familiar with any complications or issues that may arise.
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