Tip of the Week #12
I’m Andres Mejer, and I’m an immigration attorney. If you’re applying for a fiance visa, this week’s tip can help you find out how you can see your fiancée before your wedding and have them live in the US with you after you are married, instead of having to live outside the US while getting their green card.
Applying for Fiance Visa
For many people, they think they cannot be with their fiancée until they are married. We often get asked how long the applying couple will be apart, and if they should get married in their fiancée’s home country or the US to make the process go faster.
I’m going to explain the fastest way for you to start your life together, while you remain together. That is through getting a K1 or fiancé visa.
What is a K-1 Visa?
A K1 visa is a non-immigrant visa. It says that you are planning on getting married, so it allows your fiancé to enter the United States.
Once they are here, it gives you 90 days together, before you must get married. If you get married within that time, you can then start the process of applying for a green card. While that is being processed your fiancé – who is now your spouse – can remain in the U.S. Below are a few questions that we are asked about this process quite often:
Do we have to meet physically within the last two years?
Yes, you do except for limited exceptions like religious or cultural reasons. I know that many people have not been able to travel due to COVID. As of January 2021, there are no exceptions to this policy, so you still must have met physically within the last 2 years and be able to prove that.
Do you have to get married within 90 days?
Yes, you do. If you do not get married within 90 days, your fiancé must leave the US or obtain a different visa that allows them to stay (though this may be more difficult to do). However, they can still file for you if you get married to your fiancé past after the allowed 90 days, but the process becomes more costly. You will now have to prove your relationship again in addition to the change of status. If you file within 90 days, you only need to file for your change of status.
Do we need to apply for a green card immediately when we get married?
Yes. As I mentioned a K1 visa is a non-immigrant visa. That says to the consulate and immigration that your fiancé is not planning on immigrating to the US. When you apply for a green card, that tells immigration that the plan now is for your spouse to remain here permanently. With a K1 you can apply for work authorization, but if you don’t file for your green card it will not be renewed.
Does getting a K1 visa speed up the process for a green card?
This one is debatable. Before COVID, it was usually faster to get a K1 visa (in about 6 months) than get a green card (usually in 18-24 months). Then, once you get married it can take up to two years to get a green card. The good thing is that since you got the fiancé visa, your fiancé can be with you during the entire green card getting process.
If you do not get a fiancé (or K1) visa, it still takes about two years to get a green card by marriage, but in some circumstances, your spouse must remain in their country during that process while you are here in the US.
What proof do we need to show we have a legitimate relationship?
I recommend you have as much proof as possible. When you meet in person keep any receipts from outings you had together such as travel, eating out, movies, etc. Make sure to take photos together (or have someone take them for you), and keep records of communications – such as email, texts, chats, etc.
Do we need to have bills in common like we would with a green card?
Because you don’t yet live together, this may not be possible but if you can get a bank account together, that can be helpful. Again, any proof that you can provide to show you have a Bonafede marriage is going to strengthen your case.
Can my fiancé come to the US with a visitor visa while we are applying for their K1?
They can, but why would they? I do not typically recommend couples file for a K-1 visa if the immigrant already has a visa to enter the U.S. legally. If your immigrant fiancé already has a visa, I recommend they come to the U.S. for an extended stay. Figure out whether you are right for each other.
If you later decide to get married, you can then file for your Green Card from within the U.S. This way you can legitimately say you did not enter the U.S. with an intent to stay. If you are not yet ready to permanently live in the U.S., you can file for your green card through the consular process. That way, you can go back to your home country, pack up your things, get interviewed at the consulate, and then re-enter the U.S. as a green card holder.
What you cannot do is enter the U.S. as a tourist on Monday, get married on Tuesday, and file for your Green Card on Wednesday. That makes it clear you entered the U.S. with an intent to stay, not visit.
Can I extend my K1 visa?
Unfortunately, you cannot. It is only good for 90 days and if you do not get married in that time, you may need to leave the US.
Do you recommend someone get a K1 instead of getting married and applying for a green card?
This is really based on your individual circumstances. I recommend you talk to an experienced immigration attorney to determine what is going to work best for you and your situation. As I have said, usually a K1 allows you to be together sooner, and remain together, than getting a green card. The downside is that a K1 visa adds expense to the whole process. So, you need to decide if being together is your most important goal.
Consult an Experienced Immigration Attorney!
If you need help deciding what the next best steps are for you and your loved ones in your immigration journey, give us a call at Andres Mejer Law. Our experienced New Jersey immigration attorney will make sure you get personal attention and a plan that best meets your goals. Call us at 888-695-6169 to schedule a free initial consultation today!
