K-1 VISA FOR SPOUSE OR FIANCE OUTSIDE OF U.S.

The Adjustment of Status Process is Usually the Fastest and Least Expensive Option

In general, the better the information you have, the better decisions and plans you are likely to make. This is certainly so if you are working to get a loved one into the U.S. based on your plan to establish a life together. Pick the less optimum pathway, or fail to submit the required documents, and you may face extras months of processing time, or in the worst case, have your application rejected. A bit of forethought and informed diligence upfront can save time, money and stress in the long-run.

If you are not yet married, you should begin the planning by considering the timing and location of your wedding. Spouses and fiancés are treated differently for immigration purposes, and you may find it advantageous to incorporate this information into your planning.

As outlined elsewhere on this site, if your intended spouse is already in the U.S. you may be able to file for Adjustment of Status. This option, when available, is often faster and less expensive than other options, and is handled by the U.S. Citizenship and Immigration Services. Adjustment has another advantage that many couples find particularly important; the two of you are able to be together in the U.S. while the process goes forward.

Applying for an Immigrant Visa When Your Foreign Spouse is Outside of the U.S.

However, circumstances sometimes work out the opposite way. When the U.S. citizen partner is present in the foreign partner’s country, particularly if the stay is medium- to long-term as with students doing a degree program overseas, or some military or professional assignments, you may be better off getting the marriage done in the foreign country. The pathway for bringing a foreign spouse of a U.S. citizen to the States is by using the immigrant visa process through the U.S. embassy or consulate in the country where you are residing. If the couple has already been married for at least two years when the immigration process is initiated, the foreign spouse is likely to be eligible for a green card on entry to the U.S. In most countries outside the U.S., this process is handled primarily by the Department of State, the agency responsible for operating our embassies and consulates.

The K-1, or 'Fiancé Visa,' is for Foreign Partners Who Currently Live Outside the U.S. but Plan to Enter the U.S. to Marry

A third possibility also exists. Where the U.S. citizen partner resides in the U.S. and the foreign partner is outside the U.S., and the marriage is still in the planning stage, it is possible to file for a Fiancé Visa, also known as a K-1 visa. Often called a “hybrid” visa, the K visa allows a fiancé to enter the U.S. as a non-immigrant (i.e., on a temporary visa) and marry the U.S. citizen (within ninety days) and then go through the Adjustment of Status process to obtain a conditional green card, leading to permanent residence.

There are advantages to this process, for example, the U.S. citizen partner does not need to spend months or years in the foreign partner’s country, and the foreign fiancé may include any unmarried children under 21 years old in the visa package. However, there are also some drawbacks. The process is inherently somewhat duplicative, the process of obtaining the nonimmigrant visa is entirely separate from the process of adjusting status once in the U.S., requiring a separate application duplicating many of the documents needed for the original visa application, new fees and additional interviews will also be required. The process involves both the Department of State and the U.S. Citizenship and Immigration Service.

Which pathway is best suited to any individual couple’s situation will depend on a well-informed analysis of their current circumstances, long-term plans and the options available. As always, good planning makes a difference, and you owe it to your relationship to try to get it right from the beginning.

Call MigrationCounsel, immigration attorneys in Hawaii, today for a no obligations consultation on any immigration question you may have at (808) 695-3560 or RSVP to one of our monthly Face-to-Face sessions with the public.

The information presented here is intended to be general in nature, and should not be relied upon as legal advice.