Fiance/Marriage Visa
Advantages
The K-1 Fiance is an alternative immigration route for unmarried couples where the U.S. citizen petitioner lives in the United States and the foreign national fiancé lives abroad. There are some advantages of the K-1 Fiance process. Typically the foreign national fiancé is able to obtain a quicker interview than a spouse of a U.S. citizen. In addition, older children of the foreign national are able to immigrate with their parent, up to the age of 21. Whereas, if the couple were married, only children who were under age 18 at the time of the marriage would be eligible to immigrate.
K-1 Not An Option for Some
The K-1 Fiance option does not work for couples who are already married or if the petitioner is not a U.S. citizen. This option also is not favorable when the beneficiary has committed U.S. immigration violations such as being present in the U.S. without legal status. If the foreign national has not committed U.S. immigration or criminal violations, before marrying, this option should be reviewed with an immigration attorney.
Requirements of the K-1 Fiance Option
The K-1 Fiance option requires that the couple show they have met in person within 24 months of starting the process. The first application is filed with U.S. Citizenship and Immigration Services (USCIS) in the United States. Once the first application is approved, the file is forwarded to the U.S. consulate for the interview. The U.S. consulate accepts the visa fees, the documents, and interviews the foreign national fiancé. Once approved, the foreign national receive a stamp in their passport to enter the U.S. and must marry in the U.S. within 90 days of their entry. If the couple does not marry, then the foreign national is prevented from applying through a different spouse or through an employer while in the U.S.
What Happens Next?
After marriage, the foreign national applies for residency in the United States. After applying, the couple is scheduled for an interview at the local US CIS office. If the case is approved after the interview with the local US CIS office, the foreign national will receive a 2 year conditional residency card if the marriage is less than 2 years old. Conditional Residency expires in 2 years and requires the filing of the final application, called the Lift of Conditional Residency in order to complete the Adjustment of Status Process. If the couple’s marriage has reached the 2nd wedding anniversary at the time of approval, the foreign national will receive indefinite residency status and a 10-year residency card. The residency card is mailed to the foreign national. Once the foreign national receives either the 2 year or 10 year card, they receive the extra benefit of applying for U.S. citizenship earlier, within 2 years and 9 months of receipt of the status.
Spouse Adjustment in U.S.
Immigration Strategies for Marriage to a US Citizen: The Adjustment of Status Process
For those couples eligible, the Adjustment of Status Process typically involves filing the required immigration applications with U.S. Citizenship and Immigration Services (USCIS) in the United States. The USCIS Service Center will review the application to make sure all of the required documents were received with the required U.S. government filing fees. If these meet the minimum requirements, the foreign national will receive receipt notices for the applications. Next, the foreign national will then receive an appointment to go to the local USCIS to provide fingerprints for a background check. After the fingerprinting is complete, USCIS Service Center is able to send the foreign national their temporary work permit.
The Interview
Later, the local USCIS office will schedule the couple for an interview. The actual decision on the case will be made through the interview. The interview is where most denials of cases occur. The USCIS adjudicator will make a determination whether the marriage appears to be genuine and that the foreign national does not have any criminal or immigration violations preventing approval. The USCIS adjudicator can deny a marriage case where they believe the marriage does not appear authentic. Cases where the U.S. citizen or the foreign national has criminal arrests or convictions also can cause the USCIS adjudicator to deny the application. This may occur with even very old convictions or seemingly low-level criminal offenses. The foreign national may also have immigration violations even without any criminal convictions and are surprised when they find themselves denied.
Case Denials
If a case is denied, it may be appealed. In some situations, it is best to attempt to clear up the violation and re-file the case. Finally, USCIS may contact the United States Immigration Customs and Enforcement (USICE) about the case and request the foreign national appear for removal (deportation) court. Sometimes the U.S. citizen or the foreign national have outstanding criminal or USICE arrest warrants and when they appear for the interview, they may be subject to arrest. In addition, the foreign national may be arrested at the interview for prior orders of deportation. Since the consequences are so dire, it is in the best interest to seek out the services of a competent attorney who specializes in immigration law to thoroughly review the background of both the U.S. citizen and the foreign national before filing the Adjustment of Status Process applications.
After Approval
If the case is approved, the foreign national will receive a 2 year conditional residency card if the marriage is less than 2 years old. Conditional Residency expires in 2 years and requires the filing of the final application, called the Lift of Conditional Residency in order to complete the Adjustment of Status Process. If the couple’s marriage has reached the 2nd wedding anniversary at the time of approval, the foreign national will receive indefinite residency status and a 10-year residency card. The card is mailed to the foreign national. Once the foreign national receives either the 2 year or 10 year card, they receive the extra benefit of applying for U.S. citizenship earlier, within 2 years and 9 months of receipt of the status
Spouse Consular Processing
Immigration Strategies for Marriage to a US Citizen: Consular Processing
Eligibility for Consular Processing
Consular processing is required when the foreign national spouse lives abroad. Sometimes the spouse entered the United States without permission and will be required to process at the home country consular if she or he does not meet special criteria. The criteria which would allow that spouse living in the United States to remain and avoid consular processing is where the foreign national spouse (1) entered the United States without inspection, (2) was present in the United States before December 21, 2000, and (3) was the beneficiary on a Petition for Alien relative application before May 1, 2001. Thus, more recent newcomers or those who have never had any other relative file for him or her must consular process.
The Application Process in the U.S.
For those couples eligible, Consular Processing typically involves three or four application stages. The foreign national spouse is not eligible for temporary work or travel authorization in the U.S. until completion of all the required stages. The first application is filed with U.S. Citizenship and Immigration Services (USCIS) in the United States. The USCIS Service Center will review the application to make sure all of the required documents were received with the required U.S. government filing fees. Currently, processing time for this stage has varied as little as one month to up to 18 months, currently approximately five months. Once the first application is approved, the couple will be notified to pay the visa fees and file the second application with the Department of State National Visa Center.
The Consulate Interview
Upon completion of the National Visa Center application process, the foreign national will be scheduled for an interview at the U.S. consulate designated for the foreign national spouse’s home country. The actual decision on the case will be made through the interview. The interview is where most denials of cases occur. The interviewer will make a determination whether the marriage appears to be genuine and that the foreign national does not have any criminal or immigration violations preventing approval.
Approval or Denial at the Consulate
The consulate can deny a marriage case where they believe the marriage does not appear authentic. Cases with the U.S. citizen or the foreign national has criminal arrests or convictions also can cause the consulate deny the application. This may occur with even very old convictions or seemingly low-level criminal offenses. The foreign national may also have immigration violations such as unlawful presence in the U.S., prior drug use, or deportations. Depending upon the type of violation, the foreign national spouse may be allowed to apply for forgiveness through a second interview at the consulate. In some cases though, the foreign national may not be able to request a waiver and be denied until a certain length of time has passed or even permanently. If the case is approved, residency card is mailed to the foreign national in the United States and may work or travel with the card.
K-3 Spouse
Immigration Strategies for Marriage to a US Citizen: K-3 Spouse Process
The K-3 Process Background
The K-3 Spouse Process was created to help spouses of U.S. citizens receive expedited consular interviews to reunite the family quickly. Spouses of U.S. citizens were experiencing very long wait times for consulate interview through Regular Consular Processing. U.S. citizens’ fiancés, who had not yet established a marriage or family, were processing faster than U.S. citizens’ spouses. Similar to the K-1 Fiance Process, the K-3 route is a hybrid of Regular Consular Processing and Adjustment of Status. However, for the K-3 process, the U.S. citizen and foreign national must be married before starting the application process.
The Pros and Cons of the K-3 Process
The K-3 process involves more application stages and more government filing fees than Regular Consular Processing in exchange for an expedited interview. We have found in some cases the extra cost and effort required was sometimes, but not always worth it. Thus, the decision on whether to file the K-3 process is often one of predicting the often unpredictable wait times of the U.S. government and the desire of the applicant to try to expedite the case in any way possible. As of 2011, US CIS and the Department of State were processing quickly so the K-3 is no longer the fastest option. This could change in the future and the K-3 remains an available option in a few limited situations.
Application Procedures
The first application is filed with U.S. Citizenship and Immigration Services (USCIS) in the United States. While the first application is pending, the K-3 application is filed requesting an immediate consulate interview. The USCIS Service Center reviews the K-3 application to make sure all of the required documents are received with the required U.S. government filing fees. Once approved, the K-3 application is forwarded to the U.S. consulate designated for the foreign national spouse’s home country for an interview. The visa fees and non-immigrant visa application are filed directly with the U.S. consulate and the U.S. citizen spouse is interviewed. Once approved, the U.S. citizen spouse receives the K-3 visa to enter the United States. The K-3 spouse may travel abroad on the K-3 visa, but needs to apply for separate temporary work authorization in the United States. The U.S. citizen spouse has two years to apply for residency in the United States.
Finalizing the Process
After applying, the couple is scheduled for an interview at the local US CIS office. If the case is approved after the interview with the local US CIS office, the foreign national will receive a 2 year conditional residency card if the marriage is less than 2 years old. Conditional Residency expires in 2 years and requires the filing of the final application, called the Lift of Conditional Residency in order to complete the Adjustment of Status Process. If the couple’s marriage has reached the 2nd wedding anniversary at the time of approval, the foreign national will receive indefinite residency status and a 10-year residency card. The residency card is mailed to the foreign national. Once the foreign national receives either the 2 year or 10 year card, they receive the extra benefit of applying for U.S. citizenship earlier, within 2 years and 9 months of receipt of the status.
