Choosing Between a K-1 Fiancé Visa and Related Options

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If you are engaged to be married to a U.S. citizen, and wish to hold your wedding in the United States, the most obvious visa option for you to pursue is the K-1 fiancé visa. This visa allows you to enter the United States, marry within 90 days, and apply for your green card if you wish. Your unmarried children under age 21 are eligible to accompany you.

But first -- particularly if you are opn to the idea of holding your wedding overseas before you travel -- let’s look at some of your other options, and whether one of these might make more sense for you.

Overview of the Fiance Visa Option

A fiancé visa gives you no choice but to hold your marriage ceremony in the United States. In fact, you’ll have to get married fairly quickly if you plan to go on to apply for a U.S. green card (which you would do using a procedure called adjustment of status). Although technically you have 90 days in which to get married, waiting until the latter part of that time period is risky, because it may take weeks to get the all-important marriage certificate that you’ll need to apply for your green card.

Couples often ask whether their overseas marriage really counts, or wonder why they can’t just get married for a second time after entering on a fiancé visa. Unfortunately, once you’re legally married, no matter where the marriage took place, you no longer qualify for a traditional, K-1 fiancé visa. But wedding ceremonies that don’t result in legally binding marriages won’t stand in your way, such as some religious ceremonies.

Once you have married and file your application for adjustment of status, you are legally authorized to stay in the U.S. while the government makes a decision on the application. This application procedure involves even more paperwork than the fiancé visa and often takes several months before your interview at an office of U.S. Citizenship and Immigration Services (USCIS).

Overview of the Marriage-Based Immigrant Visa Option

A second option is for you to start by getting married outside of the United States. You would then be eligible to apply for an immigrant visa as the immediate relative of your U.S. citizen spouse. You would use your immigrant visa to enter the United States and become a U.S. resident immediately – with no more applications to worry about for the moment. And remember, there's nothing to stop you from holding another ceremony in honor of your wedding.

Overview of Marriage-Based Nonimmigrant (K-3) Visa Option

At one time, a nonimmigrant visa called a K-3 (a hybrid version of the fiancé and immigrant visa) looked to be a timesaver for married couples. The idea was to obtain the nonimmigrant, K-3 visa and use it to enter the United States, then complete the application process by applying for adjustment of status in the United States after entry. However, it typically doesn't always work as intended, because of USCIS timing issues. The bottom line is that, as of 2013, you should ignore this option.

Overview of the Tourist Visa Option

A third option is available to fiancés who want to hold their marriage ceremony in the United States but do not wish to live there after the ceremony. They can apply for a tourist visa at a local U.S. consulate. A tourist visa usually takes between a few days and ten weeks to obtain. However, using a tourist visa carries certain risks, primarily the possibility of being denied entry at the U.S. border by officials who don't believe you won't apply for a green card after all.

And if you actually change your mind and do apply for a green card after the wedding, you could be accused of having fraudulently misused the tourist visa for U.S. entry – and denied the green card as a result. If you choose this option, you'll want to prepare LOADS of documentation about your intended return to your home country.

Choosing Among the Visa Options

Here are some considerations when choosing the type of visa to apply for.

  • If your heart is set on marrying in the United States and remaining there, a fiancé visa is probably the most appropriate.
  • If you would like to marry in the United States and return to your home country to live, either a fiancé visa or a tourist visa would be appropriate.
  • If you would like to be married in your own country, or at least get the wedding out of the way before you embark on your immigration process, an immigrant visa is likely the one for you. This visa also makes sense if you want to enter the U.S. as a permanent resident without having to worry about submitting more applications after you’re there.
  • If you want whichever visa will get you into the U.S. the fastest, you'll want to check out comparative scheduling backups with an immigration attorney first.
  • If you have children between the ages of 18 and 21 who are not the natural children or stepchildren of your U.S. spouse-to-be, choose a fiancé visa (K-1). Due to a strange twist in the immigration laws, children under 21 can accompany a fiancé on their visa, but only children whose parents married while they were under 18 can qualify as stepchildren for purposes of getting an immigrant visa.
  • If your U.S. citizen spouse’s finances are iffy, a K-1 fiance visa is the best bet for getting you into the United States. Although fiancé applicants as well as marriage visa applicants must prove that they’ll be supported in the United States, the U.S. petitioners of fiancés usually do so using a simpler form (Form I-134 Affidavit of Support) and are held to lower income requirements. Applicants for a marriage-based immigrant visa, however, must have their spouse submit an Affidavit of Support on the longer, more complex Form I-864, and prove the ability to support them at a strict 125% of the U.S. Poverty Guidelines levels. (Nevertheless, your spouse will have to submit Form I-864 once you are in the U.S. and applying for a green card.)
  • If you want to spend as little as possible on the process, marrying first and getting an immigrant visa might be best. With both K-1 and K-3 visas, you’ll finish the process by adjusting status in the United States, where the fees are higher than if you were doing everything overseas.
  • If your case presents any complexities, start with a fiancé visa. Once an application gets postponed overseas, things get difficult. Neither the U.S. citizen petitioner nor any lawyer whom you hire is going to have an easy time reaching the consular officials. This could, of course, also happen with your fiancé visa application, but because the process is shorter and easier, the chances are lower. Once you are in the U.S., however, an attorney can accompany you to your green card interview, and appeal your case if it gets denied. No appeals are available at the U.S. consulates.

by: , J.D.

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