Your wedding or engagement to a US citizen is a time of celebration and excitement as you plan your new life together. Your new life as a married couple may also involve plans to live in the United States for some international couples. Whether you decide to apply for a K-1 fiancee visa or a marriage-based visa may depend on many relevant factors for you and your future spouse.
Types of marriage visas
Most marriage-based visas are intended to serve as a temporary status that allows the foreign-born spouse to live and work in the United States with their US citizen partner while waiting for a green card status. Most marriage visas are in the K category of nonimmigrant visas and have different classifications to serve other purposes.
- K-1 fiancé visa – this visa is designed only for the fiancés of US citizens. According to immigration law, someone counts as a fiancé only if the US citizen intends to marry the foreign national within 90 days of their entry into the US. If the wedding does not occur within 90 days, the K-1 visa holder must leave the US.
- K-2 visa – meant for the children of a foreign national fiancé who is under K-1 status. Recipients will remain in this nonimmigrant status until an Adjustment of Status occurs, and they can receive green cards.
- K-3 visa – this visa is for foreign-born individuals married to US citizens. If their US citizen spouse has filed an I-130 for a marriage-based green card, the non-citizen spouse can use the K-3 visa to remain in the US while awaiting the green card process.
- K-4 visa – This visa category is for the children of the K-3 visa spouse. If the child is a stepchild of the US citizen spouse, the child must be under 18 when the marriage took place to be eligible.
- IR1 or CR1 spouse visa – Otherwise known as a Spouse Green Card, this visa is specifically designed for foreign spouses who wish to become permanent residents and have married a US citizen outside of the United States. Unlike the K category visas, which grant temporary resident status in the US, IR1/CR1 visas are a straightforward path to lawful permanent residency through marriage.
Four things you need to know about fiancé (K-1) visas
1. Eligibility
The fiancé or K-1 visa is a nonimmigrant visa that allows the foreign fiance to travel to the US to marry a US citizen. The K-1 visa is only available to the fiancés of US citizens. Fiancés of US green card holders or lawful permanent residents do not qualify for this type of visa. The K-1 visa is a temporary status until an Adjustment of Status has been made to permanent resident.
To qualify, the couple must prove that they’ve seen each other in person within the previous two years of applying. Once approved, the K-1 visa holder must marry their US citizen partner within 90 days of entering the United States, or their visa status will be invalid, and they will have to leave the country.
2. Application process
To begin the K-1 visa process, the US citizen partner will need to file an I-129F petition with the US Citizenship and Immigration Services (USCIS) on behalf of their foreign fiancé. The foreign fiancé cannot file on their own. When the petition is approved, the foreign fiancé will need to interview at the US Consulate or Embassy in their home country. The purpose of the interview is to prove that the relationship is legitimate.
Upon a successful interview, the fiancé with be granted a K-1 visa and any K-2 visas for accompanying children, if necessary. The visa must be used within six months of being issued. The visa does not grant permanent residence in the US for the fiancé but only allows the fiancé to enter the United States to marry a US citizen.
3. Timeline
K-1 visas generally take 5-8 months from when the I-129F petition was filed with USCIS to issuance. This timeline includes the petition being sent from USCIS to the embassy of the foreign fiancé’s home country for further processing, the fiancé interview, and the eventual issuing of the K-1 visa.
4. Travel
The K-1 visa is only eligible for one entry into the United States. Which makes leaving the country once entered very difficult. However, if an emergency occurs before the wedding, you can apply for an “Advance Parole” with Form I-131. This travel document gives special permission to revalidate your K-1 visa in your home country to reenter the United States. Without it, you may need to start over with a new K-1 visa petition. While the document is free to download on the USCIS website, the filing fee to process is between $575 and $660.
Four things you need to know about marriage-based visas
1. Eligibility
To qualify for a marriage-based visa, you must be the spouse of a US citizen or lawful permanent resident. The US Department of State defines a spouse as a “legally wedded wife or husband.” To clarify further,
- Merely living together does not qualify a marriage for immigration.
- Common-law spouses may qualify as spouses for immigration purposes depending on the country’s laws where the common-law marriage occurs.
- In cases of polygamy, only the first spouse may qualify as a spouse for immigration.
2. The difference between the K-3 visa and IR1/CR1 visas
The K-3 visa and the IR1/CR1 visa are both marriage-based visas. However, there is a difference in the application process and the rights and benefits granted to each type of visa holder. For example, the K-3 visa allows an immigrant spouse to obtain a temporary nonimmigrant visa at a US embassy and permission to enter the US to start processing their Adjustment Of Status for permanent residency.
The K-3 visa also allows the holder to travel in and out of the US while the visa remains valid. While the K-3 visa application process does not require an affidavit of support, proof will need to be provided that the foreign-born spouse will not rely on the US government for financial aid.
Alternatively, the IR1/CR1 visa grants legal permanent residency and is for spouses who are physically apart and who have been married for less than two years. The IR1/CR1 applicant must wait outside of the US until their visa is approved before entering the country. Once the visa is granted, the IR1/CR1 visa holder is granted a single-use entry into the United States and conditional legal permanent residence status.
An additional application to have the conditions of their permanent residence status removed must be filed within 90 days of the expiration of their conditional status. If an IR1/CR1 visa holder wishes to leave the United States while in conditional status, they need to apply for a re-entry permit.
Both visa applications require the US citizen spouse to file a Form I-130 to the USCIS. However, the K-3 visa application also requires filing Form I-129F. The K-3 visa and IR1/CR1 allow the holders to file for an Employment Authorization Document (EAD) for permission to work in the United States.
3. Application Process
For K-3 visas:
- The US citizen spouse files Form I-130.
- Upon confirmation of receipt from the USCIS, the US citizen spouse then files Form I-129F and attaches all required documents.
- File DS-160 application and attach all required documents.
- Attend visa interview.
For IR1/CR1 visas:
- The US citizen spouse files an immigration petition on behalf of their foreign spouse.
- Once a confirmation letter is received from the USCIS, a CR-1 visa petition with USCIS’ National Benefits Center (NBC) must be filed.
- Once the NBC approves and processes the CR-1 visa petition, it will be forwarded to the National Visa Center (NVC). The NVC will then forward the petition to the foreign spouse’s consulate in their home country.
- Attend the visa interview.
4. Timeline
As of 2020, the average processing time for a K-3 visa is 6 to 9 months. The average processing time for an IR1/CR1 visa is between 7 to 10 months from the initial application to the visa approval. For more details, visit the USCIS’s webpage for median processing times for specific forms.
The processing time for both visas could also depend on factors such as:
- The foreign spouses’ home country
- The current workload of USCIS and the NVC
- Unforeseen events like global pandemics and natural disasters
- The accuracy and completeness of the petition filed
Factors to consider when deciding between a fiancé visa or a marriage-based visa
Several factors will need to be considered when setting up a new life with your partner in the United States, including what country you plan to marry in, your timeline for relocation, and your budget.
Wedding location
For couples who wish to marry in the United States, a K-1 fiancé visa is the best choice. The marriage and status adjustment must occur within 90 days of the K-1 visa holder’s admission to the US.
Ability to Travel
If the foreign-born partner would need to travel internationally often, a K-1 visa is only valid for a single entry into the United States. International travel is not permitted until the foreign spouse files a Form I-485, Application to Adjust Status, along with an Application for Advance Parole (Form I-131). An IR1/CR1 spouse that entered the US with an immigrant visa can travel abroad immediately. A K-3 visa also allows for multiple entries into the US and is valid for two years.
Wedding Timeline
If planning to get married as soon as possible, it is generally quicker to marry outside of the United States. Obtaining a fiancé visa to marry in the United States can take up to 5-8 months. While marriage-based visas have similar timelines, the choice comes down to when you plan to marry.
Living in the United States
If you intend to move to the United States as soon as possible, the K-1 visa will likely be your fastest path since you do not have to marry to relocate. However, it’s important to remember that the K-1 and K-3 visas grant temporary status to live in the United States until an Adjustment in Status is filed.
The fastest path to legal permanent residency is through an IR1/CR1 visa. However, this option requires the couple to marry outside of the US and does not permit the foreign-born spouse to live in the United States until the visa is granted.
Work authorization
A K-1 visa holder is not permitted to work in the United States. However, K-3 and IR1/CR1 visa holders are.
Filing fees
Each path requires slightly different forms/applications with various costs. If costs are a major concern, obtaining an IR1/CR1 visa may be generally less expensive.
Petition approval rates
The spouse visa is considered more “secure” because of its statistically higher approval rates during the interview process and visa approvals. According to USCIS reports, 90% of the I-130 petitions are approved, and about 75% of the I-129F are approved. On the other hand, K-1 statistics show around an 80% approval rate for applications.
No matter which option you choose, consulting a reputable immigration lawyer can ensure the best path forward for you and your partner. A lawyer experienced in marriage-based visas can facilitate an expedited process and elevate the stress of locating and filing the necessary documentation and paperwork. In addition, an immigration lawyer’s expertise allows you and your partner to focus on what’s important – starting your new life together as a married couple.
Looking for Immigration Help?
Stump & Associates is Oklahoma City’s most respected immigration law firm. With more than 30 years of experience, we know how to handle cases just like yours.
Comments are closed