ByAttorneys Steven J. Malm and Nancy E. Miller
Falling in love and planning to marry is a wonderful but complicated event in two people’s lives. It is even more complicated when one-half of the couple will have to relocate to the United States. The question most frequently asked at that point is: should the foreign national enter as a fiancé (K-1 visa) or should they marry overseas and immigrate with a green card? The answer may be: it depends.
Strategic considerations include, but are not limited to: processing time, whether the foreign national has children, whether the petitioner and beneficiary would be able to legally marry in the foreign national’s country, criminal or immigration history of the petitioner or beneficiary, and the petitioner’s financial status.
K-1 fiancé visas are appropriate if the foreign national is engaged to marry a United States citizen and seeks entry to the United States solely to conclude a valid marriage to the United States citizen within 90 days of entry. The foreign national’s children under the age of 21 may apply for K-2 visas as derivative beneficiaries and enter the U.S. on that basis. Assuming a valid marriage is concluded within 90 days, the foreign national and any derivatives then apply for adjustment of status to that of a lawful permanent resident (“LPR”).
Typically the marriage will be less than two years old when the LPR status is approved; so the LPR status will be conditional. No earlier than 90 days prior to the expiration of the conditional residency, the foreign national beneficiary and U.S. citizen K-1 petitioner (now spouses) must file a joint petition to remove the conditions on the permanent residence. However, if the couple is no longer together, the foreign national may be able to file a self-petition to waive the joint petition requirement to remove the conditions. Grounds for the waiver include a marriage that was entered into in good faith and has been terminated, an abusive marriage, or extreme hardship to the foreign national if removed. Also, joint filing is not required when the original K-1 petitioner is deceased and the marriage was entered into in good faith.
Certain considerations may make the K-1 fiancé visa a better choice than marrying the foreign national and then petitioning. One consideration is processing time. Adjudication of a K-1 fiancé visa is generally faster than a petition from a United States citizen spouse. Currently, at one USCIS Service Center, the difference is 5 months as compared to 9 months.Whether the foreign national has children is another consideration. Under 21 year old children of the K-1 fiance may accompany the fiancé to the United States. In contrast, a United States citizen can only petition the children of his spouse if he or she married the foreign national prior to the 18th birthday of the children. Additionally, a K-1 fiancé visa may be the only immigration option when the United States citizen and foreign national cannot legally marry in the foreign national’s country. This may be the case, for example, in the Philippines where divorce is not recognized. Or, the foreign national may reside in a country where same-sex marriage is not legal.
In some cases, a K-1 fiancé visa will be very difficult or impossible to get due to the background of the petitioner or beneficiary. The petitioner’s past criminal history can and may be disclosed to the beneficiary. The petition of one who has been convicted of a “specified offense against a minor” can only be approved upon a showing beyond a reasonable doubt that the petitioner poses no risk to the foreign national. Also, a petitioner who has filed petitions for 2 or more fiancés or had one such petition approved in the last 2 years requires a waiver to file another. Conversely, the foreign national beneficiary’s criminal or immigration history could render him or her inadmissible. Assuming one is available, the beneficiary will need to apply for a waiver. The waiver will need to contain strong evidence that he or she has the requisite qualifying relatives who will suffer extreme hardship if the beneficiary is not permitted to come to the United States and that the waiver should be granted in the exercise of discretion. Finally, the petitioner’s income must exceed the pertinent federal poverty guidelines to avoid a potential finding of a public charge ground of inadmissibility.
Whether a K-1 visa or a spousal petition is the better option is an important decision. The choice should be made by the couple after a in-depth discussion with a knowledgeable and experienced immigration attorney.