To Marry or Not to Marry, That is the Question – The Fiancé Visa (K-1) or Spousal Visa (K-3)

You are a U.S. citizen happily in love with your fiancé who lives abroad.  Wedding bells are ringing in your ear and you are dreaming of starting your life together – in the United States.  You plan a wedding in the United States, your fiancé’s visitor visa (B2 visa) is obtained, invitations sent, family’s plane tickets are purchased for the big day and reception hall reserved.  A fancy ceremony and reception later, you apply for your new spouse’s green card and wait for happily ever after.

Except that, your fiancé entered the United States. on a visitor visa and now he/she is at a risk of being deported for committing fraud – and possibly being banned for life.  Oops!

A visitor’s visa, B2, is a non-immigrant visa intended for those traveling to visit (and not live in) the United States.  When applying for the B2 visa, you represent to the United States government that your intention for coming to the United States is for a visit, and that you will leave thereafter.

For those who enter the United States with wedding plans, marry and remain here, your intentions to come to the United States for a visit will clearly be under scrutiny by U.S. officials.  There is always the 30-60-90 day rule for preconceived intent to consider;  however, having wedding plans and halls reserved even before your foreign national fiancé enters the United States makes this intent clearly suspicious.

So, what are some options for our lovebirds?

Fiancé Visa – K-1

If you are a U.S. citizen wishing to bring a foreign national fiancé(e) living abroad to the United States to marry, the fiancé visa (K1) is an option that might work, depending on your circumstances.

Eligibility Requirements

If you petition for a fiancé(e) visa, you must show that:

  • You (the petitioner) are a U.S. citizen.
  • You intend to marry within 90 days of your fiancé(e) entering the United States.
  • You and your fiancé(e) are both free to marry and any previous marriages must have been legally terminated by divorce, death, or annulment.
  • You met each other, in person, at least once within 2 years of filing your petition. There are two exceptions that require a waiver: 1. If the requirement to meet would violate strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice. 2. If you prove that the requirement to meet would result in extreme hardship to you.

Once a fiancé visa is issued, you have 90 days to marry.  Once married, your new spouse can apply to become a permanent legal resident and may remain in the United States until this process is completed.  The other advantage is that your fiancé can obtain work authorization while waiting to become a permanent legal resident.

What happens if you do not marry within 90 days?  A K-1 visa will expire after 90 days, and there is no ability to extend this time.  Therefore, it is imperative that you get married within the 90 days or you risk your foreign national spouse being out-of-status, and in the United States illegally.  There is a risk for deportation and bars to reentry on top if that happens.

The disadvantage with the Fiancé visa is that it is unclear when the 90 days will commence and you may have to be apart while the process is going through.  Once USCIS approves the petition it is then forwarded to the National Visa Center (NVC).  The NVC will thereafter send the petition to the appropriate U.S. Embassy or consulate, which will need time to process the visa.  With these multiple stages and time uncertainty, planning a wedding becomes difficult, you risk losing deposits on hall rentals, and often family and friends abroad will not be able to attend as obtaining visas becomes difficult.  Another disadvantage is that you will have to prove to U.S. Immigration customs that you are truly in love and intend to get married once in the United States.

The Spousal Visa – K-3 Visa

The Spousal visa may also provide a feasible avenue for our lovebirds.

Eligibility Requirements:

You have to be either a U.S. Citizen or Legal Permanent Resident to apply.

The process for obtaining the visa will differ depending on whether you apply as a Citizen or Legal Permanent Resident.  Some of the advantage of proceeding with a spousal visa, is that you can be together immediately, and your friends and family can attend the wedding in the foreign country generally without delay.  These elements are often important for a couple, which could make the K-3 quite attractive.  The disadvantages of the Spousal (K-3) visa is that marriage in a foreign country is often more difficult with extensive supporting document requirements by the foreign government; all documents must be translated to the foreign language and, all official documents from the U.S. must be certified pursuant to an apostille.  Overall, it is a long and arduous process.

Generally, there needs to be a long discussion with your partner regarding the pros and cons of these options and the circumstances in your life (job commitments, family obligations, etc.) that may need to be considered in the process.

Note that as with any information we give on our blog, this is for basic educational purposes only.  There may be other options for you outside of those discussed here.  As such, you should always talk to an attorney to discuss the path that would fit your situation best.

You can always contact us here with questions or to request a consultation.

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