If you're a U.S. citizen, you have various application options for getting a green card (permanent resident status) for your soon-to-be spouse.
If you are a U.S. citizen interested in the best strategy to obtain U.S. immigration rights (lawful permanent residence and a green card) for your spouse or fiancé(e) and any children who live overseas, you likely already realize the need for careful planning. Contrary to what many U.S. citizens in this situation assume, it's not automatic for spouses or fiancés and any foreign-born children to be able to immigrate based on the marriage to a U.S. citizen. They will need to go through a lengthy, complex application process to show their eligibility as well as admissibility to the United States.
But if you are not yet married, you do have various choices regarding which application process to follow; choices that might impact how quickly you can complete the process or gain entry to the United States. The following discussion provides an overview of these options, which include:
- getting married (most likely overseas) and seeking an immigrant visa for the foreign-born spouse and any children to enter the United States as lawful permanent residents
- getting married overseas and seeking a nonimmigrant (K-3) visa for the foreign-born spouse (and K-4 visas for the children), which they'd then use to enter the United States and later apply to adjust status to permanent residence, and
- getting a nonimmigrant (K-1) visa to enter the U.S. as a fiancé (plus K-4 visas for any children), then after the marriage, the foreign-born spouse applies to adjust status to become a permanent resident.
In choosing between these three possibilities, you will want to consider factors like your appeal rights after a denial, whether any children can accompany your foreign-born fiancé or spouse, whether you can have an attorney present at the in-person interview, and how long the process will take in total.
By the way, this article does not discuss the options for couples where both members are living in the United States. For them, adjustment of status is the usual option, if the immigrant is eligible to use that procedure (which usually requires having lawfully entered the United States).
If Marrying Overseas, Here Are Your Two Immigrant Visa Options
If you and your foreign-born spouse decide to marry outside the United States, most likely in the country where the new spouse lives, you will have two choices:
- Your spouse can remain outside the U.S. and after you file the initial petition (Form I-130) go through the application process for an immigrant visa and then use it for U.S. entry, or
- After you file Form I-130, you file a separate I-129F, and your spouse applies for a K-3 nonimmigrant (temporary) visa, which would allow entry while the I-130 is being processed, and allow your spouse to perform the final portions of the application process within the United States.
In either case, your first step would 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. Spoiler alert: The K-3 is currently not a realistic option, since USCIS processing times are such that it's almost impossible to meet the eligibility criteria.
Basic Eligibility Requirements for Marriage-Based Immigrant Visa
Regardless of which type of immigration visa you choose to apply for, let's pause to consider what U.S. law requires married couples to prove in order for the immigrant to successfully obtain a U.S. green card. In brief, the requirements are that:
- you have entered into a legal marriage
- your marriage is the real thing ("bona fide," not just a fraud or sham to get a green card)
- the petitioning spouse is truly a U.S. citizen (whether by birth or naturalization)
- neither of you is already married to anyone else (and any past marriages were legally terminated, such as by divorce, annulment, or death), and
- the would-be immigrant is not inadmissible, for example due to having committed crimes or being likely to need public assistance in the U.S. (a "public charge").
The biggest issues for most couples are proving the bona fides of the marriage and dealing with low income and the resulting possibility of being viewed as a potential public charge. Also, for couples where the immigrant has spent months or years in the U.S. without permission, the unlawful presence ground of inadmissibility can bar receiving a green card for several years (unless the immigrant can successfully obtain a waiver).
For more detailed information on eligibility, see Legal Requirements for a Marriage-Based Visa or Green Card.
Applying for a Marriage-Based Immigrant Visa From Outside the United States: Overview of the Process
Upon approval of the USCIS I-130 petition mentioned above, the case will be forwarded to the National Visa Center (NVC). This intermediary agency will send the would-be immigrant instructions regarding the next steps in the visa application process. These require the immigrating spouse to complete some forms, supply various documents, pay the appropriate fees, undergo a medical examination (including getting vaccinations), and be fingerprinted for a criminal background check.
The U.S. petitioner will need to prepare and submit an Affidavit of Support (Form I-864) proving that their income is sufficient to keep the foreign-born spouse off means-based public assistance.
After you've successfully completed the above (assuming the background check comes back clean), the NVC will forward the case to the appropriate U.S. consulate or embassy abroad. The foreign-born spouse will be notified to appear for a visa interview. For information pertaining to the interview process, see What Happens at The Green Card Marriage Interview?
Upon completing the consular interview, the foreign-born spouse will hopefully be issued an immigrant visa (though not necessarily on the same day; the consulate might use a courier service). The U.S. citizen can accompany the spouse to this interview (though it's certainly not required), but cannot bring an attorney along.
With the immigrant visa, the foreign-born spouse can enter the U.S. as a permanent resident. The actual green card will arrive some weeks later by mail.
Applying for a K-3 Nonimmigrant Visa From Outside the United States: Overview of the Process
If you marry outside the U.S. but want to have the immigrant do most of the final processing for the green card inside the U.S., you could potentially apply for a K-3 visa; though again, this option doesn't save as much time as people originally thought it would, and therefore is rarely used. We'll describe it here regardless.
The idea is that, after filing Form I-130 with USCIS and getting a receipt notice, the U.S. citizen sends another petition to USCIS, on Form I-29F. (It's the application for a fiancé visa, but don't be confused. What you're applying for is a hybrid of the fiancé and marriage-based visa.) Once the I-129F is approved, USCIS sends word to the NVC, and the foreign-born 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 where you got married.
Upon approval, the foreign-born spouse can enter the U.S., then should immediately file an application for adjustment of status. This requires sending USCIS Form I-485 and numerous other relevant forms and documents, including a medical exam and an Affidavit of Support proving that the U.S. citizen's income is sufficient to keep the foreign-born spouse off public assistance (and that the immigrant therefore isn't likely to become a "public charge").
The immigrant will be called in for fingerprinting (biometrics) shortly after submitting the Adjustment of Status application, and have to pass a background check. Next, USCIS will issue an interview notice. The U.S. citizen and foreign-born spouse must attend the adjustment interview together, at a USCIS office. You can hire an attorney to be present at the interview if you wish. The foreign-born spouse's permanent residence may be granted at that interview or shortly thereafter, and the green card will be sent by mail some weeks later.
If You Prefer Getting Married in the U.S.: Bringing a Fiancé(e) to the United States on a K-1 Visa
The K-1 nonimmigrant visa permits a foreign-national fiancé(e) of a U.S. 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 wedding. (Alternately, the foreign citizen could simply return home after the wedding; the K-1 visa allows a 90-day stay in the United States.)
There's only one application process, which we'll briefly describe below.
Eligibility for a K-1 Visa
Briefly summarized, in order to qualify for the K-1 visa:
- The foreign fiancé(e) and U.S. citizen petitioner must have met in person within the past two years (with a few exceptions possible, such as for hardship to the U.S. citizen), and
- The U.S. citizen must marry the foreign-born fiancé within 90 days of that person entering the U.S as a K-1 nonimmigrant.
For more information on the basic qualifications, see Who Is Eligible for a Fiancé Visa.
Application Process for a K-1 Visa
To start the application process, the U.S. citizen needs to submit Form I-129F to USCIS. After approving it, USCIS will forward the case to the NVC, an intermediary agency that will send the foreign-born fiancé instructions for proceeding. Upon completing and submitting those, the foreign-born fiancé will be called for an interview at the U.S. consulate or embassy nearest to or serving the area where they live.
Assuming the consular interview goes well, the foreign-born fiancé will receive a K-1 visa for use in entering the United States. Because the K-1 visa does not necessarily lead to permanent residence, fewer questions are asked than with an immigrant visa. But there's a big chunk of the application process yet to complete if the foreign-born fiancé does wish to pursue a U.S. green card.
After entering the U.S. and marrying within the 90 days allotted, the immigrating spouse must submit an application to adjust status to USCIS in order to obtain a green card. As described above, that will require not only submitting forms and documents (the main one being Form I-485), but taking a medical exam and passing a background check of fingerprints and attending an interview at a USCIS office.
Which Type of Visa Allows Getting a Green Card for the Foreign Spouse or Fiancé's Children?
The U.S. citizen's stepchildren (that is, the foreign-born spouse or fiancé(s)' minor, unmarried children) might be permitted to immigrate to the United States with the parent. However, the eligibility rules and procedural requirements that apply to each category differ and warrant thorough consideration.
Which Children of Foreign Spouse Will Receive an Immigrant Visa Along With the Immigrant
If your marriage took place when the foreign-born spouse's children were under 18, then they qualify as the U.S. citizen's stepchildren, and can immigrate along with the foreign-born spouse as long as they are unmarried and under age 21 when the citizen files the Form I-130 visa petitions. You will need to file 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 (though technically over-21-year-olds are not eligible as derivatives on a parent's application); but they must not marry before obtaining the immigrant visa, or they will lose eligibility.
Which Children of a K-1 Fiancé Can Also Receive a U.S. Entry Visa
The minor, unmarried children of a 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.
After the wedding takes place, they can also apply to adjust status to permanent resident status along with the 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 foreign-born spouse.
Which Children of a K-3 Spouse Can Receive Immigrant Visas
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 the K-2 visa; a K-4 beneficiary "ages out" (loses eligibility for the green card) upon turning 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 occur before the child turns 18 instead of 21. For these reasons, if you haven't yet married, the K-1 fiancé visa could be the safest way to ensure that an older child is permitted to obtain permanent residency.
Which Marriage-Based Immigration Applications Allow an Attorney to Be Present?
Many people prefer to have an attorney's help with applying for a green card, as is always possible with the paperwork portion of it. However, while the attorney can attend the interview if the foreign-born 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 to support the immigrant—the K-1 or K-3 visa would likely be preferable.
Which Type of Visa Allows the Foreign-Born Spouse to Appeal the Denial of a Visa or Green Card?
If the foreign-born 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 D.C. However, even if a favorable advisory opinion is issued, it is not binding on the consular officer.
By contrast, couples can appeal a USCIS decision on an adjustment of status application in the U.S. with the DHS Administrative Appeals Office (AAO). Again, for this reason, the K-1 and K-3 petitions are often the preferred method of immigrating.
Which Is Fastest, Getting a Marriage-Based Immigrant Visa or a K-1 Fiancé Visa?
Delays in any sort of U.S. immigration process are inevitable. In fact, the K-3 visa process was designed to deal with them, to at least get applicants into the United States more quickly (but then it didn't work as planned).
No one visa choice is always faster. The speed depends on how backed up the relevant USCIS office or the consulate in your fiancé/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.
Which Marriage-Based Immigrant Visa Procedure Allows the Immigrant a Right to Work in the U.S. Most Quickly?
Immigrants who enter on a K-1 or K-3 visa are not allowed to work right away. To do so, they would have to apply for a work permit, more formally called an Employment Authorization Document or EAD. But USCIS typically takes so long to issue the EAD that it expires soon after it arrives, or even before! (The EAD can't last longer than the basis for requesting it; in this case, 90 days.)
By contrast, someone who enters on a marriage-based immigrant visa is a permanent resident, which comes with the right to work; no special permit is needed.
Then again, who ends up being able to work in the U.S. the fastest depends on when they can enter the U.S. (K-1 visas tend to be fastest) and, if they do enter on a K-1, how quickly they can marry and apply to adjust status. Adjustment of status applicants are also eligible to apply for a work permit, and it will last for two years (to cover the potentially long wait for a USCIS interview and decision).
Two-Year Testing Period for All Newish Marriages
Regardless of which type of visa you choose, getting a green card through marriage might lead to one of two results in the short term, depending on when the marriage takes place.
Your spouse will receive either permanent residence or conditional residence (which expires after two years unless renewed). 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, they will receive conditional residence. If the marriage is already at least two years in length by the time the immigrant enters the U.S. or adjusts status, the result will be permanent residence.
Learn about managing conditional resident status.
Summary: Making Your Final Choice Between a K-1 Visa and a Marriage-Based Immigrant Visa
Here's a rundown of the comparative advantages to each visa (not counting the K-3):
Advantages of a Marriage-Based Immigrant Visa
A marriage-based immigrant visa could be best for you if you're interested in these positive aspects:
- A marriage-based immigrant visa is approximately $1,000 cheaper overall than a K-1 visa.
- You can marry anywhere in the world before applying for the immigrant visa.
- Upon entry to the U.S., the immigrant will immediately qualify for a green card, and be able to start working.
- If the process gets dragged out and the immigrant enters the U.S. more than two years after your wedding, they won't have to spend time as a conditional resident, but will immediately receive permanent resident status.
Advantages of a K-1 Fiancé Visa
Your choice might lean toward a K-1 fiancé visa based on the pluses:
- It typically gets the intending immigrant into the U.S. faster, by a factor of months (though additional processing will be required before that spouse receives a U.S. green card).
- It's a natural choice if you want to hold your wedding in the United States (though doing so and leaving afterwards to pursue an immigrant visa from abroad is also an option).
- It could overcome barriers you might face to marrying in your home country (for example, if same-sex marriage is illegal there).
- The would-be immigrant wants to bring children who are over 18 but under 21, it's the only option to get them green cards at the same time as the immigrant (since, for a marriage-based visa, the children must be under 18 to immigrate as stepchildren).
- You can get married tomorrow, if you wish, rather than waiting the many months it will take to get a K-1 visa.
If You Need Legal Advice
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 help prepare paperwork and facilitate the entire process. If your case involves any special circumstances, or you just need help dealing with the immigration bureaucracy, a lawyer might be well worth the cost.
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