US citizen marrying a foreign national: Issues involved


Each year, thousands of U.S. citizens marry foreign-born persons and file for their permanent residence process in the United States. The immigration process for green card through marriage depends upon whether you intend to marry the foreign national in the U.S. or outside the U.S. Each situation has its own distinct requirements and procedures and thus, requires different planning.

The K nonimmigrant visas, also called the hybrid visas, allow a fiancée or spouse of a U.S. citizen to enter into the U.S. and apply for permanent residence. Depending upon whether you intend to marry within the U.S. or outside the U.S., you may apply for a K-1 or a K-3 visa.


K-1 Visa: Marrying within the U.S.

The K-1 fiancée visa is available to foreign citizens who would like to marry American citizens and reside permanently in the U.S.

Requirements

The U.S. immigration law requires that you meet your foreign national fiancée personally within two years prior to filing the K-1 visa petition.

Both you and your foreign national fiancée must be free and have the intention to marry. You must show that you have terminated any prior marriages, and there may not be any other prohibition against the proposed marriage (e.g., marriages that violate existing laws).

Duration & Extension of Stay

Your fiancée may stay in the U.S. for 90 days on a K-1 single-entry visa and marry you during that period. Your fiancée is not entitled to apply for Extension of Stay on K-1 visa. If the marriage does not occur within 90 days, the K-1 nonimmigrant must leave the U.S. or remain subject to removal.

Change of Status

Your fiancée is not entitled to change status to any other nonimmigrant visa category. Your fiancée should apply for Adjustment of Status to conditional permanent residence upon marriage.

Application Process

You must file the K-1 fiancée visa petition for your fiancée with the U.S. Citizenship and Immigration Services (USCIS). Once the USCIS approves of the petition, it forwards it to the American Consulate where your fiancée will be applying for the K1 visa. The petition is valid for a period of four months from the date of USCIS action, and may be revalidated by the consular officer. The consular officer will notify your fiancée when the approved petition is received and provide him/her with the necessary forms and instructions to apply for a K1 visa.

Benefits of K-1 visa

Applying for a K-1 visa for your foreign fiancée has the following benefits:

* The K-1 fiancée visa generally has a shorter waiting period compared to marriage-based immigration visa petitions

* Your fiancée can apply for a work permit by filing Form I-765 and engage in employment

* Children of your foreign fiancée can accompany your fiancée to the U.S. on the K-2 dependent visa as long as they are named in the fiancée visa petition


K-3 Visa: Marrying outside U.S.

The K-3 spouse visa allows spouses of U.S. citizens to enter the U.S. in a nonimmigrant visa category while they wait until they are able to apply for lawful permanent residence (green card) status.

Requirements

To apply for K-3 visa the foreign national should be married to you, a U.S. citizen, and want to enter the U.S. to await the availability of permanent residence.

You must have filed Form I-130, Petition for Alien Relative, on behalf of your foreign national spouse with the USCIS for the purposes of an immigrant visa.

Duration & Extension of Stay

Your spouse will be admitted into the U.S. on K-3 visa for an initial period of two years. Your spouse can remain in the U.S. while waiting for the approval of the Form I-130 and is able to apply for lawful permanent residence status (adjustment of status), or for a green card, instead of having to wait outside the U.S. as the law previously required. Your spouse may apply for Extension of Stay no more than 120 days prior to the expiration of the K-3 visa.

Change of status

Your spouse is not entitled to Change Status to any other nonimmigrant visa category. Your spouse should apply for Adjustment of Status to permanent residence upon reaching the U.S.

Application Process

You must file Form I-130 on behalf of your foreign national spouse with the U.S. Citizenship and Immigration Services (USCIS) service center that has jurisdiction over your place of residence. You will then receive Form I-797, Notice of Action, indicating that the USCIS has received the Form I-130. You will then need to file a copy of this Form I-797 along with a USCIS Form I-129F to the following address:

U.S. Citizenship and Immigration Services
P.O. Box 7218
Chicago, IL 60680-7218

The USCIS after adjudicating the Form I-129F forwards it to the appropriate American Consulate so that your foreign national spouse can apply for the K-3 visa.

Benefits of K-3 visa

* The K-3 visas generally have shorter waiting periods compared to marriage-based immigration visa petitions

* Your spouse can apply for a work permit by filing Form I-765 and engage in employment

* Children of your foreign national spouse can accompany your spouse to the U.S. on the K-4 dependent visa as long as they are named in the visa petition


The big question - Which route to take?

There are four options for your foreign national fiancée or spouse to enter the U.S.:

1. Fiancée enters the U.S. on B-2 visa

Your fiancée may enter into the U.S. on B-2 tourist visa, marry and following the wedding, file for Adjustment of Status. BUT, there exists a risk of being refused admission as an intending immigrant, when asked by a USCIS officer at the arrival airport about the purpose of the visit.

2. Marry abroad and spouse enters on an immigrant visa

You may marry abroad and file an immediate relative visa petition after returning to the U.S. Adjudication of the petition generally takes three to eight months and then, after it is approved, the processing of the immigrant visa application may take an additional four to six months.

Note: You may also file the immediate relative petition with the U.S. embassy or consulate in your foreign spouse’s home country under certain circumstances, which is generally quicker than filing it in the U.S.

3. Marry abroad and spouse enters on K-3 visa

You may marry abroad and file an I-130 immediate relative visa petition after returning to the U.S. On receipt of Form I-797, you may file I-129F with the USCIS. Approval of a K-3 petition may take two to three months and then, after it is approved, the processing of the K-3 visa at the consulate may take an additional two to four months.

4. Fiancée can enter the U.S. on K-1 visa

You may file a K-1 visa petition for your fiancée to enter into the U.S. and marry within 90 days. Pursuant to getting married you may file for Adjustment of Status for your fiancé. The advantages of the K-1 procedure are:

* It is generally quicker than the marriage abroad and subsequent K-3 visa petition process which is often more time consuming

* There exists no risk of being refused admission as an intending immigrant like there is in the B-2 entry and marriage, and subsequent Adjustment of Status process

Conclusion

Spouses of U.S. citizens are considered “immediate relatives” under the immigration laws, and thus, are exempt from any numerical quota restrictions. However, the decision on when and where to marry requires a careful analysis of all the above options, comparing the processing times of the USCIS for I-130 and I-129F petitions and the time taken by the consulate in issuing the different visas. With all the complexities involved in the immigration process, it is better to consult an immigration attorney for formulating the best strategy of bringing your fiancée or spouse to join you in the U.S. in the shortest possible time.

Click here to download a special report on The K-1, K-3 Dilemma – When and Where to marry and many other informative reports.

We wish you a happy married life! --

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