Our office serves many clients who have found love across borders and now wish to petition for a new spouse who is abroad and unable to enter the United States. In this situation, we are often asked “which is better: a fiancée visa or should we marry abroad first and then file for a spousal petition/visa?” For binational couples, the ultimate goal is for the soon-to-be immigrant husband or wife to obtain a Green Card; however, there are multiple options available to make that happen. As always, the best course of action is to start by consulting an experienced immigration attorney that can advise on the best choice based on the facts of the case and the specific circumstances. That being said, there are benefits and negatives to both types of processes, and what may be a great fit for one couple, may not work for another. Let’s go over some K-1 Nonimmigrant Visa (popularly known as a Fiancé Visa) and Marriage-Based Petition basics.
What is a K-1 Visa?
A K-1 Nonimmigrant Visa or Fiancé Visa allows you as a U.S. citizen to bring your foreign fiancé(e) to the United States with the promise you will get married within 90 days of your fiancé(e) entering the U.S. as a K-1 nonimmigrant. After which, they can apply for lawful permanent residency.
What is a Marriage-Based Petition/Visa?
In the case that you are already married to your foreign spouse, you can file an I-130 petition to initiate the green card process. This option is available to both U.S. citizens and Legal Permanent Residents. Once I-130 is approved, you can then submit the Immigrant Visa application.
What are some key differences between a K-1 Visa and a Marriage-Based Petition/Visa?
When unfamiliar with legal terminology, immigration processes can appear to be the same. Some distinct differences to help you understand them better are:
- K-1 Visa
- The petitioner must be a U.S. citizen
- The couple is not yet married.
- The couple must have met in person within the two years prior to submitting the application.
- The couple can only get married inside the U.S.
- It’s a temporary visa.
- The couple has 90 days to marry once the foreign fiancé enters the U.S
- The immigrant spouse can only apply for a Green Card from inside the U.S. after marriage.
- I-130 Spousal Petition
- The petitioner can be either a U.S. Citizen or a Legal Permanent Resident.
- The couple is already legally married upon filing.
- This is a permanent visa process.
- The immigrant spouse can apply for a Green Card outside the U.S.
- The foreign spouse enters the U.S. as a permanent resident from day one.
Which option would be better?
Common questions to consider when choosing which is best for a particular couple:
- Is the couple legally able to marry abroad? For example, same-sex couples have trouble doing so in many countries where this option has not been legalized, and in those cases, a fiancée visa is the best solution.
- Is the couple 100% sure they want to move forward with the marriage and will have no issues cohabitating? If not, a fiancée allows for a 90-day trial period.
- If choosing a fiancée visa, upon arrival is the foreign spouse willing to not work until the arrival of an employment authorization document (6-12 months)? This can be a financial and emotional hardship for many people.
- What is the process for marriage in the immigrant spouse’s home country? Some countries have onerous requirements.
- Where would you like to have your wedding ceremony? Sometimes having family present is all that matters.
- If choosing a fiancée visa, upon arrival is the foreign spouse willing to not travel abroad until the arrival of a travel permit (6-12 months)? This can be a hardship for many people.
- Is the US.. person a citizen? If the petitioning party is only a lawful permanent resident, s/he is not allowed to file a fiancée application unless s/he chooses to naturalize first, and a spousal petition is the only option available.
- Is cost a consideration? The spousal visa process tends to cost less overall from beginning to end.
Choosing the option that it’s best will depend on your specific needs and situation. The U.S. immigration system is very complex. As always, it is best to consult and hire an attorney to go over your individual situation and together decide the best course of action for you and your partner. visa