If you are a U.S. citizen whose fiancé lives overseas, and you would like to have your fiancé immigrate to the United States, you have an important choice to make. Should you bring your intended spouse to the United States as your fiancé (on a “K-1” visa), or would it be better to get married before starting the immigration process?
Among the things to take into account may be timing, your personal preferences as to where to hold the wedding ceremony, and expense.
But if your income is low—in particular, low enough that you are likely to need to call on a family member or friend to serve as a “joint sponsor”—there are some especially good reasons to choose the marriage-based visa and avoid the K-1 fiancé visa. This article will discuss these and other money-related factors in making your choice.
(Need a review of what we mean by these different types of visas and who is eligible? See Legal Requirements for a Marriage-Based Visa or Green Card and Legal Requirements for a K-1 Fiancé Visa.)
Also note that if you are a lawful permanent resident, you are not eligible to file a K-1 fiancé visa.
The total cost of the marriage-based and K-1 visa processes involves more than just visa fees and plane tickets. At a minimum, you will have to pay for various forms of travel, one or two medical exams, and other government fees.
Travel costs: With either type of visa, the non-U.S. citizen will, if all goes well, need to travel to the U.S. after receiving the visa. In neither case is the U.S. citizen required to travel overseas to attend the visa interview. So far, the two types of visas present no difference in travel costs.
However, there is one more cost to figure into your budget: Before you can file a K-1 fiancé visa, you will need to have met at least once in person within the two years preceding the date you file the fiancé petition (Form I-129F), unless you qualify for an exception to this rule. So if you've been conducting your courtship long-distance so far, or haven't seen each other in a while, the U.S. citizen will most likely need to travel to meet the immigrant first.
(Then again, there are married couples who haven't yet met, having married via proxy or Skype. They will need to meet at least once, to consummate the marriage.)
You will also need to arrange for the non-U.S. citizen to travel to the U.S. consulate in his or her home country at least once, to attend an interview. This is the same regardless of whether you apply for a fiancé visa or a marriage-based visa.
Medical exam costs: The cost of the medical exams can also be a significant factor in the finances of some low-income couples, especially because only certain doctors can complete the medical exams.
If you choose the K-1 visa, your fiance's medical exam (conducted in the home country, at a cost that varies by physician) will be reviewed again later by USCIS, after your fiance' has entered the U.S., married you, and applied for adjustment to permanent residency. At that point, USCIS might discover that the vaccination record (Form DS-3025) was not completed properly or not included as part of the first medical examination, or some other similar error. The all-too-common result will be that your fiancé needs to have a medical exam completed again, in the United States. U.S. civil surgeon rates are typically in the range of $80 to $350.
Government fees: Immigration filing fees change frequently, so check the current USCIS list of filing fees for the complete set of forms for both options. Also consider that if your fiancé has children who also need to immigrate, they will each eventually need to file either form I-485 or Form DS-260.
As of early 2021, the filing fees for the K-1 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. That brings the total government U.S. fee to $2,025.
USCIS had planned to change these fees on October 2, 2020. The new fees were to be $510 for Form I-129F (filed with USCIS), $265 to apply for the K visa (paid to the consulate), and $1,130 for Form I-485 and the adjustment of status packet (filed with USCIS), including the biometrics fee. That would bring the total government U.S. fee to $1,905. However, the new fee structure is the subject of lawsuits, and is on hold for now.
For the immigrant visa process for already married couples, as of early 2021 (but subject to change if USCIS eventually wins the court cases), filing fees were $535 to USCIS for Form I-130, $325 to the U.S. State Department to apply for the visa, and $120 to the State Department for I-864 affidavit of support processing (if the I-864 form is reviewed by USCIS). If everything is approved, you will also have to pay an Immigrant Fee to USCIS ($220). That makes the total government cost $1,200.
If USCIS wins in court and you're applying for an immigrant visa as a married couple, filing fees will be $550 to USCIS for Form I-130, $325 to the U.S. State Department to apply for the visa, and $120 to the State Department for I-864 affidavit of support processing (if the I-864 form is separately reviewed). If everything is approved, you will also have to pay an Immigrant Fee to USCIS ($190). That will make the total fee you'll owe the government $1,185.
Whether you are seeking a fiancé or marriage-based visa, the U.S. citizen petitioner's income and/or assets (or your joint sponsor's income and/or assets—see below) must be above a certain level to be able to bring a fiancé or spouse to the United States. This is to help show that the non-U.S. citizen will not become a “public charge.”
The amount of income and/or assets you need to show at the time of obtaining the visa for U.S. entry, however, depends on whether you choose the K-1 or marriage-based visa.
If you get married first and then petition for a spouse to immigrate to the United States, you have to show that the sponsor's income and/or assets are not below 125% of the federal poverty guidelines. The numbers change a little bit each year, so check USCIS Form I-864P for the current year numbers.
If you are not yet married and you apply to petition for your fiancé to immigrate to the U.S., you have to show that the sponsor's income and/or assets are not below 100% of the federal poverty guidelines. (Also see How Much Income a K-1 Fiancé Visa Applicant's Sponsor Needs to Show.)
Of course, after you're married and it comes time for the non-U.S. citizen fiancé to apply for a green card (adjust status) in the U.S., you will have to meet the higher, 125% requirement.
In fact, you'll also have to comply with an increasingly harsh regulatory regime in which income is not enough by itself to prove that you won't rely on need-based government assistance, and thus be inadmissible (ineligible for a green card). But if the foreign-born fiancé can find work in the United States by the time of your adjustment of status interview, your household income might have improved such that you can reach this level—particularly .
If you can't meet the poverty guidelines requirements at all—not even at the 100% level—one possibility is to look for a joint sponsor, as described in Strategies When an Immigrant's Sponsor's Income and Assets Are Too Low.
Although the sponsorship forms that you must sign are both called “Affidavit of Support,” the two do not have the same legal effect.
When you sign the affidavit of support form for a spouse (Form I-864), your responsibility to support your spouse or repay the U.S. government for any means-based public assistance that he or she receives is a serious, legally binding one. In fact, it lasts until your spouse becomes a U.S. citizen, has accomplished 40 work quarters credited toward Social Security, dies, or permanently leaves the United States. Your obligation continues even if you and spouse later get divorced.
When you sign the affidavit of support form required for fiancés (Form I-134), you are agreeing to sponsor the fiancé for a more limited period of time, and the form is not considered legally binding on you—in other words, even if you failed to provide this support, no one could sue you to force your compliance.
This difference is important, because the U.S. consulate has discretion about whether to recognize a joint sponsor who signs Form I-134 in connection with a K-1 fiancé visa. Practice has shown that consulates, knowing that a signature on Form I-134 has almost no legal weight, often deny this recognition. That leaves the fiancé ineligible for the visa.
What's more, the typically lengthy decision-making process at the consulate means that the fiancé's case could be in process for a total time of more than a year before you find out that the K-1 fiancé application was denied due to your low income level.
Taking all of the above factors into account, most low-income couples find that the K-1 is the more difficult visa to obtain with low income.
One strategy you might want to consider is to choose the marriage-based visa, but still have a big wedding in the United States. This is still legally possible. You have the option of first getting legally married in the immigrant's home country, perhaps in a short civil ceremony, and then having a big wedding ceremony in the U.S., at which time you can celebrate with friends after the immigration process is complete.