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Immigration Law Article:

Bringing a Foreign Fiancée or Spouse to the United States:

Choosing the Type of US Visa

NOTE: (This article was written by an attorney at The Solomon Law Firm, P.C. in Houston, Texas ( www.thesolomonlawfirm.com ) who has personal experience in going through the process of bringing a foreign fiancée to America. We think you will find it very enlightening.) 

If you are in love with an alien but have not yet married, you may well be asking yourself some important questions.  How do I bring her to America?  Should I marry her first in her home country and then apply to bring her to America, or should I apply to bring her to America and marry her after she arrives?
                                      
There is no correct answer to these questions, as each relationship and each situation is different.  This article will help you make that decision, or help you ask good questions when you speak with a lawyer about helping you with the process.

Here are your choices to consider:

K-1 Fiancée Visa.  Let’s start with the type of visa that is available only if you are not already married.  In other articles we have discussed some other fundamental issues, like whether you are even eligible to apply for this type of visa, and how you start the process. 

We encourage you to read those articles, because in this article we are assuming that you are eligible to apply for all or one of the types of visas that might allow a person in your position to bring his fiancée or wife to America.  In this article, we are only discussing the advantages and disadvantages of choosing among the possible types of visas.

Historically, a K-1 Fiancée Visa has been a little faster to obtain than a K-3 Marriage Visa.  That can vary depending on where the application is filed in the United States (which USCIS Service Center), and the location of the foreign Consulate where the fiancée visa application will be processed.  Other factors can also affect the relative processing times, such as changes in the law, and the number of applications that are pending at any point in time.

If this type of visa is pursued, the United States Citizen files a petition (I-129F) to obtain a visa for his alien fiancée.  Approval of that petition only means that the United States Citizen has established that he is eligible for the benefit he is seeking.  After that petition has been approved, the process of obtaining the visa shifts to the United States Consulate in the country where the alien fiancée lives. 

The National Visa Center gets involved at this point to do the initial background checks on you and your fiancée, and then it sends the paperwork from America to the relevant Consulate for further processing.  Sometimes the paperwork is delayed.  Sometimes it is even lost.  These factors are frustrating but largely uncontrollable.

The alien fiancée is notified by the Consulate when the paperwork arrives, and the alien fiancée submits her application for the visa, following the instructions received from the Consulate.  Leaving out the details of the process (and they are many and sometimes difficult to meet) because of our narrow focus in this article, once the fiancée is interviewed at the Consulate and the visa is issued, she comes to America.

What the alien fiancée receives is a single entry visa that is good for only ninety (90) days after she arrives in America.  She must marry the United States Citizen within that ninety (90) day period or leave the country.  During that time she is authorized to work in America and can even obtain a social security card, though as a practical matter it is quite difficult to obtain work because the visa, and therefore the authority to work, is only good for ninety (90) days.

If the couple marries as planned, the alien wife and her new husband must file an application to adjust her status.  This is how she will obtain a green card.  At the same time, they can apply for two other things:  an Employment Authorization Document (commonly called an EAD Card), and Advanced Parole (which allows her to travel outside the U.S. and return even though she does not yet have a green card). 

After the alien wife receives her EAD  Card (which usually takes an average of around 90+ days), she is authorized to work in America.  The Advanced Parole, when approved, will allow her to travel outside the United States and return.  This document usually arrives in about six weeks after the application for it is filed.

Two important notes:  First, no extensions of the ninety (90) day validity of the K-1 Fiancée Visa are allowed, but the couple does have that extra time to get to know each other before marrying.  Second, only United States citizens can apply for a K-1 Fiancée visa.

K-3 Marriage Visa.  If a couple wishes to pursue this type of visa, they must first get married in the country where the alien fiancée lives (or in some cases in some other location outside the United States).  If the alien fiancée is in America already, and they marry in America, she must leave and go back to her home country for the K-3 marriage visa to be processed (although depending on how she arrived in America, it may be possible to file a petition to get a green card for her without her leaving the U.S., but a couple would be wise to hire an immigration attorney to handle this process because it can be quite risky if not handled properly)

In this type of case, the United States Citizen applies after the marriage for permission to bring his alien wife to America.  As soon as he receives the notice of receipt from the USCIS processing center where he filed, he will file a second petition on a different form to ask for a K-3 Marriage Visa.  When that second petition is approved, the paperwork is forwarded by the National Visa Center to the United States Consulate in his new wife’s home country for processing.

From that point forward, the visa process is similar to the K-1 Fiancée Visa process discussed above, though in a few countries electronic processing of marriage visas has been started.  Once the alien wife is interviewed and comes to America, the couple has two years in which to apply for an adjustment of status (again, this means applying for a green card).  The visa she receives is a two year, multiple entry (reentry) visa.

The alien wife can apply for and work once she receives her Employment Authorization Document.  She can also obtain her social security card.  She will not need to apply for Advanced Parole, because her visa is a multiple entry visa so she can leave and return to the United States even without a green card.  This type of visa can also be extended if the alien wife can show a strong intent to eventually adjust her status (obtain her green card).

Now remember the first petition that was filed in order to start this process?  The couple has a choice to make.  They can choose to wait and see if that first petition is approved before they have to file for adjustment of status.  If it is, the alien wife can return to her home country and receive an IR-1 or CR-1 visa and return to the United States as a permanent resident (that is, with a green card in hand). 

An IR-1 visa means an Immediate Relative visa, and it is issued to an alien spouse who selects this option if she has been married for over two years when she receives the visa.  A CR-1 visa means a Conditional Resident visa.  It is issued to an alien spouse who selects this option if she has been married for less than two years when the visa is issued.

If the marriage fails before status is adjusted (green card received), the alien wife must leave the United States.

IR-1/CR-1 Spousal Visa.  These terms are defined in the preceding section of this article.  This was the (usually) slower way that was used when a couple was married, back before the K-3 Marriage Visa process was allowed.  For a long time, the K-3 Marriage Visa was usually a faster way to bring families together, so it was typically used rather than waiting for the IR-1 or CR-1 visa.  Things have changed in the past year so that the K-3 Marriage Visa is almost obsolete because the CR-1 visas are being processed just as quickly and the National Visa Center is cancelling the K-3 visa petitions when that happens.

A spouse who comes to America using this process can work without restrictions upon arrival.  The IR-1/CR-1 is an Immigrant Visa (unlike K-1 Fiancée Visas and K-3 Marriage Visas, which are Non-immigrant Visas).  This means that the alien wife will arrive in the United States as a permanent resident (green card in hand).  She will need neither Advanced Parole nor an Employment Authorization Document.

If the alien spouse receives the IR-1 Visa, because she has been married for more than two years, she will receive a ten year green card.  If she receives a CR-1 Visa, because she has been married less than two years, she will receive a two year green card and be a conditional resident and must file to remove conditions just like the recipient of a K-1 Fiancée Visa or a K-3 Marriage Visa must do.

Direct Consular Filing.  To pursue this type of Visa, a couple can marry anywhere so long as it is a legal marriage.  Then if the United States Citizen lives in the country where his alien wife lives, they may be eligible to apply directly to the United States Consulate in her country for a visa.  If the couple qualifies for this type of visa (and it is not available in all countries), it is usually the fastest way to obtain a visa.

For this type of visa, it is always advisable to confirm with the Consulate in the particular country involved to be sure that the couple will qualify if they marry.  Consular policies change, and the wedding costs and requirements vary considerably from country to country.

If this type of visa is obtained, the alien spouse can work after arrival in America as soon as she obtains her social security card.

Conclusion. You can venture down this road alone, or you can obtain the help and guidance from an experienced immigration lawyer.  If you choose to try it alone, be careful, because mistakes can be costly.  Keep in mind that with each of the types of visas discussed above, there are rules that will apply to children of the alien fiancée or spouse, which will further complicate the process.

We wish you good luck with your case. 

Copyright 2008 Lee Solomon

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