If you are a U.S. citizen interested in the best strategy to obtain an immigrant visa (green card) for your spouse or fiancé(e) (and any children), you likely already realize the need for careful planning. The process is complex and requires navigation of the narrow confines of the law and the immigration bureaucracy.
Contrary to the belief of many U.S. citizens in this situation, your spouse or fiancé, and any of his or her children, are not automatically guaranteed a green card based on marriage to a U.S. citizen. The following discussion provides an overview of the procedural options available, including:
In choosing between these three possibilities, you'll want to consider factors like your appeal rights, whether any children can accompany your fiance or spouse, whether you can have an attorney present, and how long the process will take.
If you marry outside the U.S. and that is where your new spouse lives, you will have two choices:
1. Your spouse can remain outside the U.S. until an immigrant visa is issued, or
2. You can apply for a K-3 nonimmigrant (temporary) visa, which allows entry while the initial visa petition is being processed, and allows your spouse to perform the final portions of the application process within the United States.
In either case, your first step will be to submit Form I-130, Petition for Alien Relative, to the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS). See our overview on that process for tips on what to expect.
If your spouse plans to apply for an immigrant visa then, upon approval of the I-130 petition, the case will be forwarded to the National Visa Center (NVC), which will issue a packet of forms and instructions. Your spouse will complete some required documents, pay the appropriate fees, undergo a medical examination, and be fingerprinted for a criminal background check. You will need to submit an Affidavit of Support proving that your income is sufficient to keep your spouse off public assistance.
After completing the above (assuming the background check comes back clean), the NVC will forward the case to the appropriate U.S. consulate or embassy abroad. Your spouse will be notified to appear for a visa interview. You can find information pertaining to the interview process in the article, "What Happens at The Green Card Marriage Interview?"
Upon completing the interview, your spouse may be issued an immigrant visa. You can, if you wish, accompany your spouse to this interview, but you cannot bring an attorney. With the immigrant visa, your spouse can enter the U.S. as a permanent resident.
If you marry outside the U.S. but want to do most of the processing for the green card inside the U.S., you may wish to use a K-3 visa. After you file Form I-130 with USCIS and get your receipt notice, you will send another petition to USCIS, on Form I-29F. (It's the application for a fiance visa, but don't be confused -- what you're applying for is a hybrid of the fiance and marriage-based visa.) Once the I-129F is approved, USCIS sends word to the NVC, and your spouse completes some paperwork, pays fees, and attends an interview for a K-3 visa at the U.S. consulate or embassy abroad. The consulate must be in the same country as you got married.
Upon approval, your spouse can enter the U.S., at which time he or she should immediately file an application for adjustment of status. This requires filing Form I-485 and other relevant forms and documents, including a medical exam and an Affidavit of Support proving that your income is sufficient to keep your spouse off public assistance, with USCIS.
Your spouse will be called in for fingerprinting shortly thereafter, and have to pass a background check. Next, your spouse will receive an interview notice. You and your spouse will be able to attend the adjustment interview together, at a USCIS office, with an attorney present if you wish. Your spouse's permanent residence may be granted at that interview or shortly thereafter.
The K-1 nonimmigrant visa permits the foreign citizen to enter the U.S. specifically for the purpose of marriage, with the option of applying to adjust status in the U.S. after the marriage. In order to qualify for the K-1 visa:
1. The foreign fiancé(e) and the U.S. citizen petitioner must have met in person within the past two years (with few exceptions), and
2. You must marry your fiancé within 90 days of the visa issuance.
For more information on the basic qualifications for a fiance visa, see "Who Is Eligible for a Fiance Visa."
To start the application process, you would need to submit Form I-129F to USCIS. After that is approved, the case will be forwarded to the NVC, which will send your fiance a packet of forms and instructions. Upon completing and submitting those, your fiance will be called for an interview at the U.S. consulate or embassy nearest to where he or she lives. Assuming that goes well, your fiance will receive a K-1 visa. Because the K-1 visa does not lead directly to permanent residence, fewer questions are asked than with an immigrant visa.
After entering the U.S. and marrying within the 90 days allotted, your spouse must then submit an application to adjust status with USCIS. As described above, that will require not only submitting forms and documents, but taking a medical exam and passing a background check and attending an interview.
Your stepchildren (your spouse or fiance's minor, unmarried children) may be permitted to immigrate with the parent. However, the eligibility rules and procedural requirements that apply to each category differ and warrant thorough consideration.
If your marriage took place when your spouse's children were under 18, then they qualify as your stepchildren, and can immigrate along with your spouse as long as they are unmarried and under age 21 when you file the Form I-130 visa petitions. You will need tofile a separate Form I-130 for each child, and each will submit a separate visa application. Under the Child Status Protection Act,their ability to obtain an immigrant visa will not be affected by them turning 21 after the visa petition has been filed -- but they must not marry before obtaining the visa.
The minor, unmarried children of your K-1 fiancé can enter the U.S. on K-2 visas if they remain unmarried and under age 21 through the day they enter the United States. They can also adjust status to permanent resident status along with your new spouse providing that the Form I-485 application and related forms are filed before each child reaches age 21. (Note that unlike children applying on an immigrant visa, it doesn't matter how old they were when the marriage took place.) If the adjustment of status application is not filed before a child's 21st birthday, however, the child becomes ineligible to adjust as a derivative of the spouse.
The minor, unmarried child of a K-3 spouse may be granted K-4 status to enter the United States and attend the wedding. However, USCIS does not provide the same derivative benefits as with the K-2 visa; a K-4 beneficiary risks “aging-out” (losing eligibility for the green card) if he or she turns 21 before adjustment of status takes place. In addition, if the K-4 applicant is not the biological child of the U.S. citizen, but a stepchild, the qualifying marriage must have occurred before the child turns 18 instead of 21. For these reasons, if you haven't yet married, the fiancé visa may be the safest way to ensure that an older child is permitted to obtain permanent residency.
Many people prefer to have an attorney's help with applying for a green card. While the attorney can attend the interview if your spouse adjusts status in the U.S., attorneys do not ordinarily accompany people to visa interviews at a U.S. consulate, except at the discretion of the particular U.S. consulate or embassy. (Having an attorney travel to the consulate could be expensive for you to arrange, too.) If you prefer an attorney to be present at the green card interview -- particularly if your case presents any complications, such as difficulty proving sufficient income -- the K-1 or K-3 visa may be preferable.
If your spouse is denied a visa during consular processing, there is no appeal process. An advisory opinion can be requested through the Secretary of State at the U.S. Department of State in Washington DC; however, even if a favorable advisory opinion is issued, it is not binding on the consular officer. By contrast, you can appeal a USCIS decision on an adjustment of status application in the U.S. with the DHS Administrative Appeals Unit (AAU). Again, for this reason, the K-1 and K-3 petitions are often the preferred method of immigrating.
The K-3 visa was designed specifically because of delays in the immigrant visa process, to at least get applicants into the United States more quickly. However, no one visa choice is always faster. The speed depends on how backed up the relevant USCIS office or the consulate in your fiance/spouse's home country is at the time you apply. If speed is important to you, ask an attorney for the latest information and an analysis of your options.
Note that, regardless of which type of visa you choose, getting a green card through marriage may lead to one of two results in the short term. Your spouse will receive either permanent residence or conditional residence (which expires after two years unless renewed), depending on the length of the marriage. If the marriage is less than two years old at the time your spouse enters the U.S. on an immigrant visa or adjusts status, he or she will receive conditional residence. For more information on this topic, see our article on managing conditional resident status.
An experienced immigration attorney can evaluate the circumstances of your particular case and provide expert advice as to the method most favorable to you, or the attorney can help facilitate the entire process. If your case involves any special circumstances, or you just need help dealing with the immigration bureaucracy, a lawyer may be worth the cost.
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