KHUNKHUN LAW

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Is It Faster to Apply for a Fiance Visa or Marriage Visa

Sharon Khunkhun

“I just got engaged to my fiancé and we are anxious to begin our American Dream Life together. We’re ready to get married but are not sure if it’s better to apply for a fiancé visa now or get married and then apply for a marriage visa. What should we do?”

With all the immigration websites and forums online, clients often walk in with a lot of information and questions about the K-1 fiancé visa vs. marriage visa, but still find themselves confused as to which option is the best for them. As a marriage green card lawyer in New York, I always tell my clients that there are many factors to consider in deciding which option is the most appropriate, assuming of course that the petitioner is a US Citizen (to qualify for the K-1 fiancé visa) such as:

  1. Where the foreign national lives

  2. Does the foreign national need to travel to the United States while the marriage immigration case is pending?

  3. Is the couple planning a wedding in the US or abroad?

  4. Can the foreign national afford to be unemployed while the visa is pending (if Adjustment of Status is filed)?

  5. Is the foreign national comfortable with not traveling while the visa is pending (if Adjustment of Status is filed)?

Case Study

My fiancé is a US citizen, living in the US and I live in Canada. We have just filed for our K-1 visa right before Christmas but found out that it may take more than two years before I will get my Green Card, if not longer. We both just graduated from university and are anxious to begin our lives together and avoid career disruption. We also are planning on having a wedding ceremony in June 2019, in Canada, so I will need to travel. Was there a better way for us to do this?

We never counsel our clients to get married JUST so they can avail themselves of one immigration option over another. Therefore, our advice is based on the assumption that the couple is engaged, imminently getting married, and is not selecting marriage status based on an immigration strategy.

Problem: One of the biggest problems with the above case study is that the couple has a wedding ceremony planned for June 2019. Since it takes upwards of a year for the foreign national to get the fiancé visa approved and processed at the National Visa Center and local consulate, there is no way that the visa processing will be completed before the June 2019 wedding date. Therefore, I-129F K-1 fiancé visa will actually be voided on their wedding day (June 2019) as the pre-condition to entering on a fiancé visa, is that the couple is engaged and not yet married.

In a usual situation, the couple is supposed to still be engaged when the foreign national arrives in the US after approval, at which point the couple must get married within 90 days of the foreign national’s arrival. After the marriage, the couple can then file an Adjustment of Status (AOS/I-485) for the Green Card. Since the processing time for AOS/I-485 is currently showing 14-28 months (Texas Service Center), it is likely that the foreign national will have to wait nearly two years to get their Green card. In total, it could take nearly three years for the whole process, from the filing of the K-1 fiancé visa to final issuance of the Green Card assuming the couple did not violate the terms of the K-1 fiancé visa.

Solution: We advised the couple that it would be better to be patient and wait to file an I-130 after they get married if the marriage in Canada in June 2019, is a priority and fixed in place and time. It would be better to go this route and then go through consular processing (marriage interview at their local consulate) since the foreign national would be eligible to enter the US with a permanent resident status within a year, as the processing time in their jurisdiction is 9-12 months. This would save the foreign national almost two years. The couple also has the option of getting married sooner rather than later, but of course—immigration strategy should not determine that. We would also recommend that the K-1 visa petition be formally withdrawn before submitting the I-130 petition.

An important consideration to keep in mind is that each couple requires a highly customized strategy when applying for a marriage-based Green Card. The above scenario worked because the foreign national wanted to get married in Canada and have the freedom to come and go as she pleased. She did not want to come to the US and end up applying for AOS off the bat, as her travel plans would be at the mercy of her receiving an Advance Parole. Imagine spending $30,000 USD on a wedding and not being able to make it to your own wedding!

CONSIDERATIONS TO KEEP IN MIND

  • If the foreign national wishes to travel to the US on a visitor visa during the pendency of the I-130, this may be an issue. There is a high chance that CBP will not allow the I-130 beneficiary to enter the US due to their marriage to a US citizen (evidence of immigrant intent). Under the visitor visa, the visitor is supposed to have unequivocal non-immigrant intent. Of course, this is not a black-and-white issue. We oftentimes assist our foreign nationals with entering while an I-130 is pending, to increase their chances of being allowed entry into the US.

  • One of the reasons many foreign nationals shy away from applying for an Adjustment of Status (I-485) is that processing times are now up to two or three years in some jurisdictions. This means the foreign national often has to stay in the US and can’t work until their work authorization and Advance Parole (travel card) are issued. Even with the Advance Parole card, many clients are nervous about traveling due to the instability of the current administration. 

  • Applying for Adjustment of Status (I-485) after the foreign national arrives in the US on a visa such as a visitor visa, is taken seriously, as the intention of the foreign national upon entering can invoke some rules and policies that the foreign national may not be aware of. For example, if a visitor marries a US citizen or takes any actions that impute immigrant intent then the foreign national can be charged with misrepresentation or fraud during the Adjustment of Status process. 

THE ABOVE ADVICE IS BASED ON USCIS PROCESSING TIMELINES CURRENT AS OF JANUARY 16, 2019. THE ABOVE IS SUBJECT TO CHANGE ACCORDING TO CHANGES IN PROCESSING TIMES.