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Family-Based Immigration: Bringing a Spouse or Fiancé to the United States

Igbanugo Partners, Int’l Law Firm, Igbanugo Partners
Published 06/01/2008 - 9:59 p.m. GMT
Mshale - The African Community Newspaper

The period of time between engagement and marriage is filled with questions, including trivial ones like: “Who should we invite to our wedding? How do I lose weight for it? What traditions and customs do I use?” And so on. For U.S. citizens who get engaged to foreign nationals living overseas, more complicated, life-changing questions often come up. One of the most important questions is, “How will I get my future spouse into the United States?”  The most common way for a foreign national fiancé(e) to obtain admission to the United States (and ultimately permanent residency) is to have the U.S. citizen file a Form I-129F, Petition for Alien Fiance(e), on his or her behalf.  If the couple is already married, the U.S. citizen may also file a Form I-130, Petition for Alien Relative, on behalf of the foreign national spouse. Each option has its pros and cons.

The visa options

A foreign national generally must possess a visa in order to enter the United States.  For foreign national fiancés of U.S. citizens, the best option is the K-1 non-immigrant visa.  For foreign national spouses of U.S. citizens, the choice is usually between an immigrant visa and a K-3 non-immigrant visa.  The immigrant visa and the K-3 require that the marriage occur before the visa petition is filed.  With the K-1, the couple gets married within 90 days after the foreign national enters the United States.

Differences among the visa options

Immigrant Visa
Under the immigrant visa process, the U.S. citizen and foreign national must first establish that they share a bona fide marriage and then apply for an immigrant visa before a U.S. consulate or embassy abroad.  The first step is for the U.S. citizen to file a Form I-130 petition with the U.S. Citizenship & Immigration Services (USCIS).  Upon approval of this petition, the foreign national will need to complete additional visa application forms and submit additional documents before he or she is scheduled for an interview at the designated U.S. consulate or embassy.  If the consular officer approves the visa application, the foreign national will receive an immigrant visa to travel to the United States. Upon inspection and admission to the United States, he or she is admitted as a permanent resident.  (Note: In cases where the marriage is less than two years old, the permanent resident status will be conditional and the foreign national will have to petition to remove the condition after two years).

K-3 Visa
The K-3 visa route also requires the couple to get married before initiating the application process.  Unlike the immigrant visa, however, the K-3 is a non-immigrant visa that allows the foreign national spouse to enter the United States, but does not give him or her permanent resident status.

After filing a Form I-130, the U.S. citizen files a Form I-129F with USCIS on behalf of the foreign national spouse.  Upon approval of the Form I-129F, the foreign national may then seek a K-3 visa from the consulate abroad.  After entering the U.S. on the K-3, the foreign national must then file a Form I-485, Application to Register Permanent Residence or Adjust Status, to obtain permanent residence in the United States.

K-1 Visa
The K-1 visa is a non-immigrant visa that allows the foreign national fiancé(e) to travel to the United States prior to getting married.  The U.S. citizen files a Form I-129F with USCIS on behalf of his or her overseas fiancé(e).  Upon approval, the foreign national may obtain a K-1 visa from the consulate abroad and then enter the United States, where the couple must get married within 90 days of the foreign national’s arrival.  Following the marriage, the foreign national spouse files a Form I-485 to obtain permanent residence.

Pros and cons of the visa options

While each of these options ultimately results in the foreign national obtaining permanent residence, there are important differences to each visa.  The key questions a foreign national fiancé(e) or spouse generally asks include: How long will it take before I can enter the U.S.?  When will I be able to work?  After I arrive in the U.S., will I be able to leave the country freely?

The key disadvantage involved with utilizing the immigrant visa process is that it generally takes longer than obtaining a non-immigrant visa.  With the immigrant visa process, the foreign national must first wait for the I-130 petition to be approved and then provide additional information and documentation to the consular post before an immigrant visa interview is scheduled.  In general, the K-3 and K-1 visas are obtained with less delay, allowing the foreign national to enter the United States more quickly. 

On the other hand, the immigrant visa process is advantageous in that upon entry to the United States, the foreign national is considered a permanent resident and can seek employment immediately.  K-1 and K-3 visa holders must first file a Form I-765, Application for Employment Authorization, in order to obtain employment authorization. Moreover, they may not file a Form I-765 without first filing or concurrently filing a Form I-485 application.  The processing time to obtain an employment authorization card also takes at least two months, during which time the foreign national may not work lawfully. 

Those who enter on immigrant visas are also permitted to exit the United States freely.  Likewise, the K-3 visa allows for multiple entries to the U.S. during a period of two years, at the end of which time the foreign national will likely have obtained permanent residence.  The K-1 visa, however, provides for only one entry to the U.S.  Thus, in order for the K-1 visa holder to depart from the U.S. while his or her permanent residence application is being processed, he or she must obtain advance parole by submitting a Form I-131, Application for Travel Document.  The processing time to obtain advance parole is approximately two months.  If a K-1 visa holder exits the U.S. without advance parole, he or she is considered to have abandoned the application for permanent residence.

An additional consideration arises where the foreign national fiancé(e) has minor children other than by the petitioning U.S. citizen.  Both the K-1 and the K-3 allow for children under the age of 21 to be derivative beneficiaries. This allows them to receive non-immigrant visas along with their parents.  An immigrant visa issued to the spouse of a U.S. citizen, however, does not provide for derivative beneficiaries.  Thus, a separate Form I-130 petition must be filed on behalf of the foreign national’s children, who might not receive visas at the same time as their parent.

Nothing in this article should be taken as legal advice for an individual case or situation.  The information is intended to be general and should not be relied upon for any specific situation.  For legal advice, consult an attorney experienced in immigration law.