If you’re a U.S. Citizen and in a relationship with a foreign national who lives abroad, you might be thinking about bringing them to the U.S. to get married and apply for permanent residence. There are two ways to do this.
Fiancée Visa
Many people immediately jump to the fiancée visa, also known as the K-1 visa. This visa is for people who are not married yet but are intending to get married, and want to do so in the U.S. However, there are some serious negative factors to consider in deciding whether the K-1 visa is for you. The main problem with this visa is that once you arrive in the U.S. with your K-1 visa, you have to go through a second process in the U.S. to actually gain permanent residence. While you’re waiting for this process to go through, which can take 6-9 months or longer, you will likely not be authorized to work, and will not be allowed leave the U.S. except in cases of an emergency.
There are some reasons why one would need to choose the fiancée visa, however. These would include situations in which the U.S. Citizen and her fiancée are not allowed to get married abroad. This scenario often comes up in same-sex relationships, where the fiancée lives in a country that does not allow same-sex marriages. Additionally, if the foreign national lives in a country to which the U.S. Citizen cannot travel (such as for safety reasons), the foreign national may need the fiancée visa to actually be present at his wedding. And finally, it is sometimes a bit faster, perhaps 6 months faster, to secure this visa than a marriage-based immigrant visa (as explained below).
In order to be eligible for a fiancée visa, the couple must have physically seen each other in the last two years, with some limited exceptions. They must show that they have a good faith relationship and that they intend to get married in the U.S. within 90 days of the foreign national’s entry to the U.S.
The application process is in three steps. First, the U.S. Citizen must file the I-129F fiancée visa petition with U.S. Citizenship & Immigration Services (USCIS). After approval, the case is forwarded to the U.S. Consulate for processing. The foreign national must file the DS-160 application for nonimmigrant visa, and must submit documents as specified by the U.S. Consulate. The foreign national then attends an interview at the U.S. Consulate, and if all goes well, the Consulate will approve the case and issue the visa. The foreign national will then enter the U.S. and must get married within 90 days. Step three of this process is applying for permanent residence with USCIS, which should also happen within 90 days of entering the U.S.
Marriage-based Immigrant Visa
The second way to immigrate to the U.S. based on a relationship with a U.S. Citizen is by getting married first, and then applying for an immigrant visa. The advantage of this process over the fiancée visa is that, at the end of the consular portion of the case, you have permanent residence, rather than just a temporary visa. Though the fiancée visa may be a slightly faster way to make an entry to the U.S., the immigrant visa process is a faster way to actually get to the end goal of permanent residence. Thus, when you enter the U.S. as a permanent resident, you are immediately eligible to work and travel abroad.
The application process is in two main steps. First, the U.S. Citizen files an I-130 petition with U.S. Citizenship. After it’s approved, it is forwarded to the National Visa Center of the U.S. State Department to prepare the case for the interview at the U.S. Consulate. The application process is explained more in this prior blog post.
Differences in Consular Processing
While the fiancée visa and the marriage-based immigrant visa have some similarities in the way the initial petition is processed by USCIS in the U.S., there are also some big differences when it comes to handling by the U.S. Consulate. For immigrant visa cases, the National Visa Center (“NVC”) has a large role to play. The NVC is an office of the U.S. State Department that prepares immigrant visa cases for their interviews at U.S. Consulates. When the NVC receives a case from USCIS, it issues a welcome letter and requires a fee payment to begin. It directs applicants to complete the DS-260 immigrant visa application, and to upload many documents to its online portal, called CEAC. The NVC is also in charge of interview scheduling for immigrant visa applicants.
For fiancée visa cases, the NVC has almost no role to play. It will assign these cases consular ID numbers and will hold the cases until the Consulate is ready to process them. Aside from that, you primarily communicate directly with the U.S. Consulate. Once the Consulate is ready to process the case, it will send you a letter that gives you instructions about how to provide it with the forms and documents it requires. Each Consulate processes these cases a bit differently. The Consulates always require completion of the I-134 affidavit of support, as well as biographical documents and police certificates.
Final Words
There are a couple of final things to remember for these cases. First, it is very important to read all government instructions very carefully and provide USCIS and the State Department with all of the documents that they require. Secondly, these cases take time to process. Obtaining a K-1 fiancee visa will take at least a year; immigrant visas take at least 18 months. The COVID-19 pandemic has added additional delays, as the Consulates struggle to process cases after being closed for months, while still facing staff shortages and other limited operations. Thus, at present, even those processing times are optimistic at best. Insisting on a set date by which you need or want your application to be completed, particularly if that set date is less than the usual processing times, is not realistic and will just cause you and your family added anxiety and stress. The key is to be flexible and to understand that, after a wait, your case will be processed and with a lot of preparation, you and your spouse will be reunited in the U.S.
The above is not legal advice and should not be acted upon as such. USCIS and State Department applications and processes can be complicated and carry serious consequences. We recommend consultation with counsel prior to proceeding.