Fiancé and Spousal Visas

Background

The road to a marriage-based green card can be a lengthy one, and the process can seem all the more painful if your loved one does not currently have any basis for entering or remaining in the United States. If you are a U.S. citizen and recently married a foreign national, or have become engaged to a foreign national, you should consider obtaining a K Visa. It allows you to be with your loved one while you undergo the marriage-based green card process. 

K-1 Visas for Fiancés

For those who are not yet married, the K-1 Visa allows you to bring your fiancé into the country — including any minor children, who may receive a K-2 Visa — and it allows you 90 days in which to get married. That is an attractive option for many couples, because it allows them time to get to know one another and make plans for their wedding. There are two main steps involved. The first step is for the U.S. citizen fiancé to file a petition (Form I-129F) with USCIS, along with supporting documents. Once it is approved, the second step is for the foreign national fiancé to file an application (Form DS-160) with a U.S. consulate or embassy in his or her home country and attend an interview. When the visa is approved, the foreign national fiancé may then apply for admission to the United States, and, as noted, you have 90 days in which to get married.  

Once you are married, you may then begin the traditional marriage-based green card process, and your spouse may remain in the United States and even work during the entire process. But if you do not get married within 90 days, it is very important that your fiancé does not overstay the visa. To protect against abuse, Congress has created very strict consequences for those who violate the terms of their K-Visa. For example, you may not change your K-1 status to some other status in the future unless you leave the country. Even then, should you seek immigration benefits in the future, immigration officers may take into account the reasons why you did not comply with your K-1 visa status. 

K-3 Visas for Spouses

For those who are already married, the K-3 Visa is a great option if your spouse is currently outside of the country or is on a visa that is bound to expire soon. From a procedural standpoint, the spousal visa is merely an additional step in the marriage-based green card process. Once you file a family-based visa petition (Form I-130), you simply file one more petition (Form I-129F), using much of the same documentation and information you already compiled when filing the first petition. When the I-129F petition is approved, you then file an application (Form DS-160) with a U.S. consulate or embassy in your home country and attend an interview. The K-3 Visa ultimately allows you to apply for admission to the United States and remain in the country while you undergo the marriage-based green card process. You may even obtain a work permit in the process.  

Why you should not attempt to use a tourist visa

Many couples in this position — whether engaged or recently married — consider using a tourist visa instead of a K-Visa as a means of keeping the foreign national partner in the United States while undergoing the marriage-based green card process. I do not encourage that approach, because, strictly speaking, tourist visas are not meant for those who ultimately plan to immigrate to the United States. They are only meant for those who plan to visit the United States for a brief period and return to their home abroad. While you may succeed in obtaining the tourist visa through your consulate, an immigration officer may ultimately bar you from entering the United States, or may question you about it at some point in the future when you are undergoing the marriage-based green card process. The risks are not worth it.  

If you would like to apply for a fiancé or spousal visa, contact me today.

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