Marriage-Based Immigration Processes

I WANT TO MARRY A FOREIGN NATIONAL. WHAT IS THE BEST VISA OPTION?

FIANCE VISA (K-1) vs. SPOUSE VISA (K-3) vs. TOURIST (B-2)

Many people ask us which is the fastest way to bring their loved one to the United States. The options are to marry in the U.S. (Fiancé (K-1) or Tourist (B-2) visa) or marry in your loved one’s home country (Spouse visa K-3). Every case is unique. We encourage you to NOT focus on the immigration aspects of this important event, but rather to use the immigration laws to serve your desire to marry where you want to marry. Also, know that it is impossible to provide a blanket answer that would apply in every situation. Here is a summary of the options you have, with the advantages and disadvantages highlighted. Understand that the actual processing times of any of these visas, but particularly the K-1 and K-3 will vary greatly depending on both the location of the U.S. citizen in the United States and the country of origin of the foreign national spouse. Whichever way you chose to proceed, we look forward to assisting you with your immigration matters.

FIANCE(E) VISA (K-1)

ADVANTAGES

  1. You don’t need to marry immediately in your Fiance(e)’s country or the U.S.
  2. You bring your loved one to the U.S. as your Fiancee, and you have 90 days to get married. This allows you both to get to know each other better and make a decision about whether you want to spend the rest of your lives together.
  3. You deal nearly exclusively with the U.S. immigration system and U.S. immigration officials here in the United States.
  4. You avoid dealing with local foreign procedures of marriage in a foreign country in a foreign language.
  5. Your fiancée has a chance to see the country and get familiar with U.S. customs and language before the marriage. 1. Your Fiancé(e) needs to make a strong effort to convince the Immigration Officer at the U.S. Embassy or Consulate in her home country, that you are both in love and are planning to get married upon her arrival in the U.S.
DISADVANTAGES

  1. lose family and friends will NOT see your Fiancé (e) get married in the U.S. unless they could manage to obtain another type of visa such as a tourist visa, which is hard to obtain.

SPOUSAL VISA (K-3)

ADVANTAGES

  1. You are both together immediately. Your wife’s family and friends are able to attend your wedding without any delay, which is very important for many spouses.
  2. Local marriage in a foreign country can sometimes be accomplished in 10 days, or less.
  3. Depending on the U.S. Consulate, the process could take much less time.
DISADVANTAGES

  1. Extensive supporting documentation is usually necessary for a U.S. Citizen to get married in a foreign country.
  2. It is a two-step process, instead on one. First, you are required to submit a package for the Form I-130. And, second, upon USCIS Notice of Action, you would need to send I-129F Package. It takes time and a lot of patience from both of you.
  3. This process is very document-sensitive which means that if you are missing a document, you may have to fly back to the U.S. in order to obtain a necessary document before process can be completed.
  4. All your documents must be translated into the native language of that country where you are planning to get married. The translation much be certified with attached apostille.
  5. Your might end up with more expenses for the marriage itself and Embassy visa processing charges and fees.

TOURIST VISAS AS AN ALTERNATIVE TO K-1 or K-3 VISA

In adjudicating visa applications, the Consul at the U.S. Embassy or Consulate is guided by U.S. laws and regulations and not laws of your Fiancé home country. The issuance of non-immigrant visas is governed by the U.S. Immigration and Nationality Act (INA).

U.S. immigration law places the burden of proof on the visa applicant to show that he or she is not planning to immigrate to the United States by using a tourist visa. In other words, each non-immigrant visa applicant must prove to the Consul’s satisfaction that s/he will NOT travel to the U.S. in order to reside there permanently. Each applicant must demonstrate that s/he is traveling to the U.S. for ONLY a temporary stay and has strong ties to home country that will compel him/her to return home.
If the officers of the Customs and Border Protection (CBP) at the port of entry believe your prospective or actual spouse is coming as a visitor to avoid the delays associated with the K-1 or K-3 visas, these officers have extraordinary power to bar your significant other from entry to the United States for a minimum of five (5) years; and if they believe fraud or misrepresentation is involved, these officers can impose up to a lifetime bar to entry!
To obtain a visitor visa in most countries, documents that provide evidence of the applicant’s social, economic, and/or family ties to the home country, as well as correspondence from relatives or business associates they plan to visit, may facilitate the consular officer’s decision.
Some examples of documents that may be helpful include:

  • Evidence of employment. A letter from your employer can be useful.
  • Evidence of income (and in some cases evidence of your spouse’s income), such as earnings statements.
  • Evidence of immediate family (spouse, children) in the home country.
  • Evidence of ownership of property.
  • Evidence of ongoing studies if applicant is still a student.
  • Evidence of ongoing projects for those in entertainment fields.
  • Your old passport bearing earlier visas and entry stamps indicating the date on which you returned to the home country (for those who have traveled to the U.S. previously).
However, in these times of strict visa scrutiny, it is almost impossible for a young unmarried woman to obtain this type of visa.

Fiancée Visas | K Visas – Marriage of a United States Citizen to a Foreign National

We live in a world that is becoming smaller and smaller. As world travel has become easier, the frequency of marriages between nationals of different countries has also significantly increased. United States citizens are no exception to this trend.
While not perfect, the United States ’ immigration system has established visas that are designed to enable the marriage of U.S. citizens to nationals of foreign countries. The Immigration and Nationality Act of 1952 created the K-1 visa for fiancées of U.S. citizens and their unmarried children under the age of 21(K-2). In 2000, the Legal Immigration and Family Equity Act, commonly known as the LIFE Act, amended the K visa program to also allow a spouse of a U.S. citizen, and that spouse’s children under the age of 21, to obtain a K-3(K-4) visa.
Despite falling within the same category of K visas, the K-1 and K-3 visa processes are remarkably different. Therefore, it is vital that the couple understand their options and follow the path that will best meet their needs.

K-1 Fiancee’s Visa

In these types of cases, the U.S. citizen is considered the Petitioner and the foreign fiancée is considered the Beneficiary. In order for a K-1 visa to be issued to the Beneficiary, the Petitioner must first obtain an approved I-129F petition from the U.S. Citizenship and Immigration Service (“CIS”). In order for an I-129F petition to be approved, the Immigration Service must find from the evidence submitted that: (1) the Petitioner and Beneficiary have met in person within the two years immediately preceeding the filing of the petition; and (2) the Petitioner and Beneficiary are legally able to marry within 90 days after the beneficiary enters the United States .

Along with the I-129F form, the Petitioner must also submit to CIS a form G-325A and passport style color photographs for both the Petitioner and Beneficiary. The Petitioner must also submit evidence, such as, affidavits from both individuals and/or other persons with personal knowledge of their relationship, photographs of the couple together, letters, e-mails, telephone bills, documentation of wedding plans, etc. The supporting evidence should be sufficient to enable the CIS to make a decision that a bona fide relationship exists between the Petitioner and the Beneficiary.
If CIS approves the I-129F they will notify the Consulate designated on the I-129F where the Beneficiary intends to apply for their visa. Each Consulate’s policy and procedures differ, but generally, the Consulate will send a letter to the Beneficiary describing what needs to be submitted to the Consulate to finalize the processing. The Consulates’ processing times can fluctuate based on the time of year during which the application is submitted, as well as the required security clearances. The final step of the process is for the Consular Officer to interview the Beneficiary in order to make the final determination of eligibility for a K visa.
If the Consulate issues a K-1 visa, the Petitioner and Beneficiary must marry within 90 days of the time that the Beneficiary enters the United States . Further, the K-1 visa issued by the Consulate is only valid for a single entry.
Once in the United States the K-1/K-2 Beneficiary is authorized to work only after applying for and obtaining work authorization from CIS.

K-3 Spouse Visa

The purpose for providing K-3/K-4 visas is to allow families to be together while the visa petition submitted by the U.S. Citizen is pending. However, a K-3 visa will only be issued if an immigrant visa is unavailable to the Beneficiary.

It is also vital to understand that only a U.S. Citizens’ spouse and the spouse’s unmarried children under the age of 21 can qualify for K-3 and K-4 nonimmigrant visas. Unlike the K-1 Fiancee visa, in order to qualify for the K-3 visa, the Beneficiary must already be married to a U.S. citizen. Further, in order to qualify for the K-3 visa, the Petitioner must have already filed an I-130 Immigrant Visa petition on behalf of the Beneficiary. Once the I-130 is filed, the Petitioner must then file, and get approved, an I-129F petition on behalf of the Beneficiary spouse.
Different than the 90-day admission period granted for K-1 visa entries, the K-3 visa beneficiary should be granted a two year period of admission upon entry to the United States . If the Beneficiary can show that they are taking steps to progress their immigrant visa process, they can file an extension of their K-3 status by submitting a form I-539 no more than 120 days before their status expires. K-3 and K-4 visas issued by the Consulate allow for multiple entries into the United States and can be valid for up to 10 years.
Similar to the K-1/K-2 visa status, once in the United States the K-3/K-4 Beneficiary can obtain work authorization from CIS for the duration of their K status. The work authorization can be extended if the Beneficiary can show that their application or petition is awaiting approval.

Which Visa is best for you?

If you are not currently married, the major factor that will determine whether a K-1 or K-3 is best for you is where you want to get married; abroad or in the U.S. ? Clearly, the decision of where to get married is a personal decision for each couple and takes into account various factors. If you plan on getting married outside the United States it would most likely be more advantageous to pursue a K-3 visa. However, if you plane on getting married in the United States , it generally makes more sense to pursue the K-1 visa. If you have questions about this process. Please call an immigration attorney with expertise in handling these types of cases.

FOR IMMEDIATE RELATIVE PURPOSE

SUGGESTED DOCUMENTS TO PROVE VIABILITY OF MARRIAGE

To provide the United States Citizenship Immigration Service (“USCIS”) proof of the fact that you and your spouse were, indeed, legally married and functioned together as a married couple, you should provide us several of the documents listed below:

  1. Leases or property deeds with both your names.
  2. Joint bank account statements for the last six months (an account in both your names).
  3. Life or health insurance policies or notices with either of you as the beneficiary of the other’s policy.
  4. Copies of your wife’s Social Security card, driver’s license, or other official document showing married name (if wife has taken husband’s name as a result of the marriage).
  5. Joint credit card (e.g., Visa or MasterCard) accounts or other credit card account statements.
  6. Joint purchases or loan documents (car, boat, appliances, furniture, etc.).
  7. Joint income tax return.
  8. At least 10 color copies of photographs of your wedding, honeymoon or other special occasion where both of you are featured.
  9. Copies or originals of any letters you wrote to each other, or even any correspondence between either of your parents and either of you, with envelopes.
  10. Birth certificates of any children born of the marriage.
  11. Your and your spouse’s birth certificates and marriage certificates.
  12. Copy of last years tax returns of USC Spouse.
  13. Any divorce decrees of either spouse.