A fiance visa or a K-1 Visa is a temporary visa that is issued to an immigrant who wishes to enter the U.S. to marry a U.S. citizen fiance. In most circumstances, CIS requires that the engaged couple met in person within the 2 years immediately preceding the U.S. citizen’s application for his or her fiancé with CIS.
Common Questions & Answers
What is the fiance visa process?
If an immigrant fiancé(e) is not a citizen of the United States but plans on marrying a U.S. citizen in the U.S., then the U.S. citizen must file a fiancé visa petition with CIS in the U.S. After the petition is approved, the immigrant fiancé must obtain a visa issued at a U.S. Embassy or consulate abroad. The immigrant fiancé can only enter the U.S. one time on the issued fiancé visa and must marry the U.S. citizen fiancé within 90 days of entering the U.S.
Is the fiance visa the best route?
The fiancé visa petition is filed at the CIS Service Center closest to the U.S. citizen’s address. Each Service Center has different processing times for fiancé visa cases, depending on how many cases are submitted and the available CIS staff to decide them. As a result, it could take anywhere form 2 – 6 months, on average, depending on the Service Center, for the fiancé visa petition to be approved. After this occurs, the National Visa Center must be notified by the CIS Service Center of the approval and assign a visa number and notify the consultate nearest the fiancé’s foreign residence. This could take an additional 1 – 2 months.
In addition, each consulate has different processing times, some short, some lengthy, to actually schedule an interview appointment for the foreign fiance to pick up the visa. So, depending on whether wedding plans are flexible in the U.S. and the potential time needed to complete the fiancé visa process, the fiancé visa may not always be the shortest route, if that is the primary concern of the couple.
Some couples choose instead to get married in the foreign country and then have the U.S. citizen spouse file for an Immigrant Visa at the local CIS service center, which could be faster than the fiancé visa petition processing times, and then have the foreign spouse interview at the foreign consulate to enter with a green card (as a permanent resident) based on the Immigrant Visa approval, instead of entering with a temporary visa such as the fiancé visa. This could save money and time in the long run because the couple will not have to file an Immigrant Visa and green card application filing in the U.S. once the fiancé arrives, if the foreign spouse (married abroad) enters the U.S. with a green card. Whether or not this is the right choice for any couple depends on the factors in each individual case, which should be discussed with an immigration attorney before deciding what route is best.
What if I just marry a U.S. citizen outside the U.S. and then plan to move to the U.S.?
In this situation, the standard process is for the immigrating spouse to wait until the U.S. citizen spouse has an approved Immigrant Visa (through application in the U.S. with CIS) and then interview at the consulate nearest the immigrating spouse’s residence outside of the U.S. This will enable the immigrating spouse to enter with lawful permanent residency status (i.e., as a green card holder).
If the immigrating spouse does not go through this process and tries to enter the U.S., having already married a U.S. citizen, it could be very difficult to be able to enter the U.S. By marrying a U.S. citizen, this demonstrates to CIS that you have a strong reason to stay in the U.S. permanently, even if you enter on a visitor’s visa or visa waiver. It could be very difficult to prove that you do not have this intention to stay permanently. If CIS believes that you have no strong reason to leave the U.S. when your temporary stay will expire, then you will not be able to enter the U.S. on your temporary visa and you will be directed to wait outside of the U.S. until an Immigrant Visa is approved for you.
What if I enter the U.S. on a different type of visa and then marry my U.S. citizen fiance; will I still be able to get a green card without having a fiancé visa?
If an immigrant spouse enters the U.S. on a different type of temporary visa (such as a visitor’s visa) and then marries a U.S. citizen, there is a presumption of “visa fraud.” This means that a CIS officer may conclude at your green card interview in the U.S. that you misrepresented your intention to marry a U.S. citizen and your intent to stay in the U.S. permanently when you entered on a visitor’s visa, a visa that you are using because you want to only stay in the U.S. temporarily. If this applies to you, it is best that you speak with a qualified immigration attorney to determine whether you should apply for a green card in the U.S. (called the “adjustment of status” process) or should consular process an immigrant visa petition instead, to avoid any visa fraud implications. Every case and circumstances is unique so it is always advisable to speak to an immigration attorney to understand the pros and cons of any available immigration options.
Can I work on a fiance visa?
Yes, if you apply for and receive a work permit (called an employment authorization card or “EAD”) once your fiancé visa is issued. Some couples choose to wait to apply for a work permit until the immigrant spouse is in the U.S. already and the couple starts the green card process right away, since a work permit is always included in such a filing. Again, whether a work permit should be applied for under the fiance visa or green card process depends on the immediate need to work vs. potential cost savings to the couple and their individual circumstances.
Once issued a work permit, the immigrant spouse can work anywhere in the U.S. and has the same legal rights as a U.S. citizen worker (i.e., must be paid at least minimum wage and not be paid less than a similarly situated U.S. citizen worker in most circumstances). With a work permit, the immigrant spouse should be able to obtain a social security card and state driver’s license.
I changed my mind about marrying my fiance. I’m now in the U.S. What can I do to still obtain a green card?
The only way to apply for a green card once an immigrant enters the U.S. with a fiancé visa, without having to leave the U.S., is to apply based on the marriage to the U.S. citizen fiancé. The only exception to this is if the immigrant spouse marries as planned the U.S. citizen fiancé but the marriage turns abusive and the U.S. citizen spouse will not cooperate in sponsoring the immigrant spouse for a green card. Then and only then, can the immigrating spouse obtain a green card on the marriage without the knowledge or consent of the U.S. citizen spouse.
If the immigrating spouse chooses not to marry the U.S. citizen fiancé, then at the expiration of the fiance visa, the immigrating spouse must depart the U.S. and apply for a green card through another option. Even if the immigrating spouse marries a different U.S. citizen, the immigrating spouse will have to leave the U.S. and go through the Immigrant Visa and consular processing option or through another fiance visa petition process, to be able to receive a green card based on the new marriage.
What’s very important to remember is that unlawful presence will begin to count against the immigrating spouse if s/he stays in the U.S. after the expiration of the fiancé visa and does not marry the U.S. citizen fiancé and has not filed for a green card. Once these days of “unlawful presence” add up to 6 months of time without valid status, the immigrant fiance will be subject to the 3 year bar. This bar states that once the immigrant fiance leaves the U.S. either permanently or to pick up a new visa abroad, s/he will not be able to re-enter the U.S. for 3 years, even if an immigrant visa has been approved for him or her. If the immigrating spouse stays a year or longer in the U.S. without valid immigration status and then leaves the U.S., s/he is subject to the 10 year bar of re-entry. Therefore, it can be very risky to travel outside the U.S. if any unlawful presence exists. As a result, it is always crucial to speak to an immigration attorney as soon as possible to determine viable options.
I entered the U.S. on a fiance visa and am now married to a U.S. citizen. S/he filed immigration paperwork for me to obtain my green card and work authorization but our marriage is not working out. My spouse wants a divorce and I don’t have my green card yet. Do I have any options to still be able to get my green card?
Yes. If your spouse is willing to postpone the divorce until after you receive your green card, you may be able to keep your green card once you receive it. The green card interview will focus on whether the two of you are still living together, your joint assets/commingling of funds, and whether the marriage was real to begin with. A separation in the marriage does not mean that your case will be denied. However, if your case is approved, the green card you will receive will likely be valid only for two years since your marriage is likely less than 2 years old at the time of the green card interview. You can apply for a waiver of the usual requirement to file to release the condition with your spouse. This waiver would allow you to file on your own, without your spouse’s input, to release the condition on your green card.
If your spouse will not go to the green card interview with you or withdraws his sponsorship, your green card application based on the marriage will be denied. If, however, your marriage is not working out because your spouse is abusive (physically and/or financially and/or emotionally), you may be able to obtain a green card based on the abuse without your spouse’s consent or knowledge, and keep your work permit and advance parole travel document that you already obtained based on his prior sponsorship. This is a very tricky area — it is advisable for any immigrant spouse who thinks this might apply to review our “Abused Immigrant” pages on this site to determine if this option is right for you and to schedule a consultation with an attorney right away, so you can keep the prior green card case going without interruption to your work permit.
The above information is general in nature and is not intended to be considered or relied upon as legal advice. You should always consult an attorney to determine if what immigration options are available to you and to determine how any recent changes in the law could affect your situation.
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