by Lawrence Gruner, California Attorney
So you are in love and can’t wait to spend the rest of the life with that special someone. The only problem is that he/she lives in another country. Should you file for a fiancé visa in the United States, or go back and marry him/her and process the case that way? While every situation is different, here are ten factors to consider:
If so, it is important to note that children under twenty-one can come to the US as derivatives (K-2) of a fiancé visa (K-1). If you get married, you have to file for the children separately, and you can’t file for step-children if you married the parent after the children were eighteen. By contrast children who enter as K-2's can file their separate adjustment of status application until they are twenty-one.
Only US citizens can file both a fiancé visa and a marriage visa. Lawful Permanent Residents may file for a marriage visa only. However, this process generally takes several years to process. It may make more sense, in this situation, for the lawful permanent resident to obtain US citizenship and then choose between the two options.
This is an important issue. Your romantic interest or your romantic interest’s family may wish to have the wedding in their home country. If you get married before your romantic interest enters the United States, then you cannot use the fiancé visa process. You must do the marriage visa process.
A marriage case allows you to have more control of the time frame in which your romantic interest will come to the United States. The time constraints are tighter on a fiancé visa, and so in this situation a marriage case would be preferable.
If your romantic interest enters on a fiancé visa, there will be a longer period of time before they are authorized to work. When someone enters the US after being petitioned as a spouse, they enter the United States as a lawful permanent resident and only need to obtain a social security number to work. A fiancé has to enter the US, get married, and then file for work authorization. This takes approximately three months. So if your romantic interest is anxious to work in the United States, then a marriage case is probably the better route to take.
A fiancé petition specifically asks if the petitioner (you) have committed certain crimes, such as domestic violence, dating violence, and stalking. If you committed one of these crimes, it is very difficult to obtain a waiver and have a fiancé visa approved. These questions are not on the paperwork (petition) in a marriage case.
You want to show the consular officer who will be adjudicating your case that you have a serious and committed relationship. If you only met briefly on one occasion, it is harder to prove a "bona-fide" relationship. In situations like that it is better to return and visit again and then get married to your romantic interest.
While both ways are about equal in time to enter the United States, a fiancé case can be a little faster (maybe a month or so). However, a fiancé case requires further adjudication in the US that makes the total time frame for a fiancé to become a lawful permanent resident longer (generally, by a few months).
While the government frequently changes the fees required in these types of cases, currently processing for the green card as a marriage case is currently cheaper by approximately five hundred dollars in fees to the US Government.
While such an option is tempting, particularly for people from visa waiver countries, it is a bad idea. The immigration officials who work for the government have experienced all manner of tricks. If someone who enters as a tourist gets married within a few weeks of entering the United States, the officer adjudicating the case will know that they entered the country with preconceived intent to get married. They will deny the Adjustment of Status application, forcing the applicant to return to their home country to process the application.
If you'd like to learn more about the laws you'll face getting married to a foreign national, a good starting point is our FAQ on marrying a foreigner.