There are many ways an individual may immigrate to
America, but few clients are as driven as my K-1 fiancé(e) visa clients or my
clients seeking a ‘green card’ for their new spouse. These two benefits, though
different in many ways, are both available for Americans who have decided they
want to spend their lives with someone from another country.
As our world becomes increasingly connected,
international relationships seem to be more commonplace. This may be due to
online dating sites, globalized markets, increased travel, and the ability to
speak to a loved one overseas via webcam, or through chat rooms and instant
messaging. Regardless of the reason, fiancé(e) visas and spousal immigrant visas
are on the rise. Nearly 27,977 fiancé(e) visas were issued in 2012, up from approximately
7,783 in 1992. Likewise, nearly 273,429 spousal immigrant visas were issued in 2012,
up from approximately 118,247 in 1992.[1]
Even though thousands of these visas are issued
annually, a substantial portion of petitions are also rejected. Some petitions
are fraudulent and as such should be rejected, but others are simply not
properly supported. Unfortunately, a denial can be an impossible hurdle and a
heartbreaking end to an otherwise budding relationship. Knowing that approval is not a given, couples seeking fiancé(e)/spousal immigration benefits must tread carefully. Generally, hiring a competent immigration attorney will provide a couple with the best chance for success. However, couples who educate themselves so that they are better able to work with their attorney are even better positioned for success.
One of the first decisions couples will need to make is whether to file an I-130, Petition for Alien Relative to seek spousal benefits or to file an I-129F, Petition for Alien Fiancé(e). The decision is easy for individuals who are already legally married—they will typically file the I-130.[2]
A successful I-130 petition must show the “bona
fide” nature of the marriage. This will include proof that both parties were
able to legally marry, a valid marriage certificate, passport photos, a Form
G-325 for each party (showing biographic data), and supporting evidence.[3]
If your spouse is overseas, they will need to go
through a procedure called “consular processing” before entering the U.S., but
will enter as a legal permanent resident (“green card” holder). If your spouse
is already here, they will need to adjust status with Form I-485 to obtain
their green card.Couples who are not yet married may consider filing the I-129F, fiancé(e) visa petition (of course, they could choose to get married and pursue an I-130). The fiancé(e) visa is a 'non-immigrant' (or 'temporary') visa that permits the fiancé(e) to come to the U.S. for the purpose of getting married.
A successful petition requires the couple to show that they have met in person in the last two years and that they intend to get married within 90 days of the beneficiary’s arrival in the United States. Although this proof seems easier than an I-130 on its face, it is advisable to include similar elements of proof to a fiancé(e) visa petition as you would to an I-130 to ensure success.
After obtaining a fiancé Visa and getting married,
the immigrant must adjust status by filing a Form I-485 to obtain legal
permanent residency. Again, the couple should plan to show the bona fide nature
of their marriage with the I-485 to ensure success.
If the couple has not been married for at least 2
years prior to receiving lawful permanent residency, they must file a Form
I-751 to show the validity of their marriage after having been married two
years. If they are not still together, the beneficiary must seek a waiver of
the requirement to file a joint petition in order to remove the condition and
become a permanent resident.
In the past, fiancé(e) visas were processed much more
quickly than Form I-130 immigrant visa petitions, but now both petitions are
processed in somewhat similar periods. Given this, the processing time does not
offer a big advantage to choosing one over the other for most cases, but this is a
decision you will need to make with your attorney based on many other factors
that affect your individual decision.
Regardless of your choice, we wish you and your
significant other all the best!
[2] It
is possible for individuals who are already married to file a K-3 fiancé(e)
petition for a non-immigrant visa. This option is not addressed in this post,
but is similar to the K-1 fiancé(e) visa that is addressed, except the
individuals applying for it are married at the time of filing.
[3] This evidence may include evidence
of joint debts or assets (i.e. a mortgage or loan in both parties’ names, a
joint lease, joint checking, savings, or credit accounts, both names on a title
or deed) evidence of children born to the marriage (i.e. birth certificates),
and other evidence such as joint membership to various clubs or organizations,
evidence of traveling together, photographic evidence, affidavits from individuals
familiar with both parties and their relationship, shared insurance policies,
and a variety of other items that show that the couple intends to build a life
together.
