If you are in a relationship with a U.S. citizen, and think that you are ready to take the next step and make your home in the U.S., you may consider applying for either a marriage-based visa or a fiancé(e) visa with which to enter the United States. However, these visas have very different requirements, and allow you to do different things on differing timelines.
In brief, the fiancé(e) or “K-1” visa is a nonimmigrant (temporary) visa, which will allow you to come to the U.S. for only a limited time. If you wish to stay in the U.S. permanently, you'll have to get married and submit more applications in order to adjust your status to an immigrant.
By contrast, the marriage visa is an immigrant visa, and grants you permanent residency at the time you enter the United States.
Let's look more at the pros and cons to each visa.
In order to qualify for a fiancé(e) visa, you must intend to marry a particular U.S. citizen within 90 days of your arrival in the United States, you must be legally eligible to marry, you must intend to establish a bona fide marriage, and you must have met your intended spouse within the past two years.
A K-1 is available only if your fiancé(e) is already a U.S. citizen. Lawful permanent residents (“LPRs”) or green card holders, cannot file for K-1 visas.
In order to qualify for a marriage-based visa, you must show that you are legally married to a U.S. citizen or lawful permanent resident, that the marriage is legitimate and not for the purposes of receiving an immigration benefit, and that both of you are married only to each other. In contrast to a fiancé(e) visa, marriage visas are available to spouses of both U.S. citizens and lawful permanent residents (however, the processing time will differ; see below).
Additionally, certain criminal convictions or other factors, such as membership in a terrorist organization or certain diseases may make you inadmissible and prevent you from entering the U.S. on either visa.
If your main goal is to get to the U.S. as quickly as possible, then the fiancé(e) visa is likely the fastest option. But if your goal is to get an actual green card as soon as possible, then a marriage-based visa will be quicker.
For a rundown of the steps involved in each, see Steps to Applying for a K-1 Fiancé Visa and Applying for a Marriage-Based Immigrant Visa: Overview.
Processing times for K-1 visas have slowed significantly under the Trump administration. The average processing time just to get the first step done, namely USCIS approval of the Form I-129F Petition for Alien Fiancé(e), was between three and 22 months in mid-2020, depending on which Service Center is handling the petition.
After petition approval, it typically takes a few months for the case to transfer to the NVC, and then several more months until the U.S. embassy will schedule the interview. A total of ten to 24 months is a typical wait (though you can't count on any particular schedule, and the COVID-19 pandemic has caused across-the-board delays).
Once you arrive in the United States and have married (which you must do within 90 days), you'll need to begin the adjustment of status process. (See Applying to Adjust Status After Entry on K-1 Visa: Forms and Procedures.) This can take up to 18 months or even longer. What's more, although you're supposed to be issued a work permit while you wait, those have been taking between three and nine months in mid-2020.
So, even though you might arrive in the U.S. relatively quickly with a fiancé(e) visa, you must still prepare for a long wait for an actual green card, and a long time during which the immigrant will have no right to work; which can make overcoming the public charge bar to a green card difficult.
What's more, you will first receive a conditional green card, which will only be good for two years. Prior to its expiration, you will have to file to remove conditions in order to receive permanent LPR status.
In contrast, the marriage visa process is simpler and less costly, although it could take comparatively longer for you to arrive in the United States.
Upon approval of a marriage-based immigrant case, the State Department will issue a visa, which also serves as a temporary green card. You can travel to the U.S. on it, and your official green card will be mailed to you later. If your marriage is less than two years old upon U.S. entry, you will first receive a conditional green card and will have to file to remove conditions before receiving the ten-year green card.
Processing times for Form I-130 Petition for Alien Relative can also be slow, and as of mid-2020 took anywhere from seven to 22 months on average. After USCIS approves the I-130 petition, how long it takes before you can come to the U.S. will depend on whether you are married to a U.S. citizen or a lawful permanent resident (“LPR”) or green card holder.
If married to a U.S. citizen, then you would qualify as an immediate relative and your case would take the length of time it takes the government to process it. It normally takes about two months before the case is transferred to the NVC, and then several more months before the U.S. embassy is ready to schedule your interview, for a total average processing time of up to 24 months.
If you are married to an LPR, then your priority date is not immediate, and you are subject to the quota system. (For more information on priority date processing times, see How Long Is the Wait for Your Priority Date to Become Current?).
(A note of caution: If your LPR spouse has lived with you in a foreign country for more than six months, make sure he or she consults an attorney to ensure that the government has not deemed his or her green card "abandoned.")
If costs are an important consideration, then you might be better off pursuing a marriage-based visa than a fiancé(e) visa.
As of late 2020, filing fees for the entire fiancé(e) visa process were $535 for Form I-129F (filed with USCIS), $265 to apply for the K visa (paid to the consulate), and $1,225 for Form I-485 and the adjustment of status packet (filed with USCIS), including the biometrics fee, totaling $2,025.
NOTE: USCIS had planned to change its fees in October 2020, but lawsuits and federal court injunctions have put those changes on hold until further notice. Be sure to check the latest before you decide.
In contrast, for a marriage visa as of late 2020, the total government fees were $1,200. This includes $535 to USCIS for Form I-130, $325 to the U.S. State Department to apply for the visa, $120 to the State Department for Form I-864 Affidavit of Support, and, once your case is approved, a $220 immigrant fee to USCIS to receive your green card.
Furthermore, as alluded to earlier, if you arrive in the U.S. on a K-1 visa, you will likely be unable to work until after marrying and applying for adjustment of status and a work permit while in the United States. Although you are technically eligible to work in the U.S. during the 90-day period that your visa is valid, in practice this is almost impossible, because USCIS currently takes far more than 90 days to process a K-1-based work permit. So, if you come to the U.S. on a fiancé(e) visa, it will be many months before you can start work on your adjustment-of-status-based work permit.
By contrast, when you arrive in the U.S. with a marriage-based green card, you are entitled to start work almost immediately (you might just need to await the arrival of your Social Security card, which may take a couple weeks).
Deciding what your best visa option is will depend on the age of your children and how old they are when you get married.
With the fiancé(e) visa route, an unmarried child under the age of 21 can apply as a derivative on your I-129F application. The government would issue your child a K-2 visa. Your child could apply at the U.S. consulate at the same time as you, or later, so long as it is within one year of the date that you were issued your own K-1 visa.
After arriving in the United States, the child is eligible to adjust status, so long as you got married within the 90-day deadline and the child is still under the age of 21. Provided you file your child's adjustment of status application before he or she turns 21, the Child Status Protection Act (“CSPA”) will prevent the child from “aging out” and losing eligibility, even if the child turns 21 while the adjustment of status application is still pending. Your child will be issued conditional permanent residence and have to file to remove conditions, just like you.
For a marriage-based visa, the process depends on whether your spouse is a U.S. citizen or LPR.
If your spouse is a U.S. citizen, then he or she must petition for your child on a separate I-130 petition as a stepchild (if eligible). If your marriage is less than two years old then, like you, your child will receive a conditional green card, and will have to file to remove conditions before receiving the permanent ten-year green card.
If your spouse is an LPR, then he or she can include your child on the same I-130 petition as yours, as a derivative beneficiary. For more information on applying for your children, see Marriage-Based Green Card: Your Children's Eligibility.
Regardless of whether your spouse is a U.S. citizen or LPR, your child will qualify as a stepchild of the U.S. citizen or LPR only if the child was under the age of 18 at the time you married. If your child was over the age of 18, but below the age of 21, then the child must wait until you obtain your own green card, and you can then petition for him or her. So long as your child is still under the age of 21 at the time of filing the petition, he or she will most likely be protected by CSPA.
If you are undecided, a good rule of thumb may be that, if your child was over the age of 18 at the time you got engaged, a fiancé(e) visa will be the quickest option to help him or her come to the U.S. and adjust status. If your child was under the age of 18 and your spouse is a U.S. citizen, the fastest option overall may be to marry and have your spouse file a separate I-130 petition for him or her. (If your spouse is a green card holder, then the fiancé(e) visa is not an option anyways).
One of the biggest factors that engaged couples must figure out is how they will plan their wedding day. If you get a fiancé(e) visa, then you can get married only in the United States, within 90 days of your arrival. If you intend to get married outside of the U.S., then it's more appropriate to pursue a marriage-based visa.
Given the uncertainty of when you'll actually receive a K-1 visa, and the 90-day window after U.S. entry, a stateside wedding might have to be a bit spur of the moment. That 90-day deadline is nonnegotiable, so you absolutely must get married within it. You could, however, have a small and low-cost wedding in the U.S. within those 90 days then, after adjusting status to get your permanent residence, visit your home country for a big celebration with family and friends.
Whether you pursue a fiancé(e) visa or a marriage-based visa depends on you and your significant other's unique set of circumstances. Costs, wait times, children, and other considerations should all factor into your decision. A qualified immigration attorney can provide you with a more detailed analysis and help you decide what works best for your growing family.