US +1 760 231 6477, Australia 02 8069 7228 info@usvisasolutions.com

MARRIAGE AND FIANCÉE VISAS-K-1 AND K-3 VISAS

The complexity of bringing a fiancée or current spouse to the United States. The question of how to bring a fiancée or even spouse to the United states is relatively complex and in any event is more complex than perhaps it should be.

 

k1The Law Offices of Jonathan C. Capp has considerable experience in obtaining visas for fiancée and spouses, including those with a complicated immigration history.

FOR AN INITIAL FREE CONSULTATION CALL:
Tel: In the US (760) 231-6498
In the UK call 0207-101-9399   email: info@usvisasolutions.com

In Australia call  (02) 8069 7228

 

Summary of the correct means for your spouse or fiancée to come to the United states permanently-the three basic options

1. What is the K-1 fiancée visa?

2, What is a marriage based immigrant visa ( Green card)?

3. What is direct consular filing?

4. Which option is the fastest?

5. Why can’t my spouse or fiancée simply come on a tourist visa to do this?

6. What is the legal justification of this prohibition?

7. What are the consequences of marrying a US citizen after originally entering the US on a  Tourist visa or a 90 day visa waiver?
THE FIANCÉE VISA (K1 VISA)

The fiancée visa option

A fiancée visa allows an overseas fiancée of a US citizen to enter the United States, marry within 90 days and then apply for a Green card in the United States.

Note that the fiancée can only apply for a Green Card based on a marriage to the original US citizen sponsor of the fiancée visa. Unmarried children under 21 years old are also allowed to accompany the fiancée.

The fiancée visa requires that the marriage be held in the United States.

The Green card application is a separate application which follows the legal marriage on the United States.

The Fiancée Visa Application is a two step process

  • The US citizen fiancée submits an application to the USCIS (immigration authorities) in the US,. If approved, the approval is transmitted to the consulate in the fiancées home country
  • You fill out more forms and the fiancée presents herself for interview at the US consulate in her home country, where she receives the K1 visa

Note that the US citizen will be required to execute an affidavit of financial support for the fiancée and the fiancée will be required to undergo a medical examination prior to the interview at the relevant US consulate or Embassy

The fiancée has 6 months to travel to the United States and hence use the fiancée visa. The marriage must take place within 90 days of the fiancée’s arrival in the US, at which time the fiancée should file for a Green card through a process known as ‘adjustment of status’.

THE SPOUSAL/MARRIAGE IMMIGRANT VISA (GREEN CARD)

The Marriage visa option

 

Like a fiancée visa (K1 visa) a K3 visa is obtained through a staged process as follows

  • The US citizen spouse files an immigrant petition with the USCIS (US immigration authorities) in the US.
  • Once the receipt notice is returned by the USCIS for the Immigrant petition the US spouse files an immigrant visa application with the USCIS (National benefits Center)
  • Once the application is approved in the US, the approval notice is transmitted to the US consulate or Embassy on the overseas spouse’s home country
  • The overseas spouse is required to undergo a medical examination, submit more forms to the local US consulate or Embassy (including an affidavit of support executed by the US citizen spouse) and be interviewed at the Consulate/Embassy
  • If granted a visa, the overseas spouse can enter the US as an immigrant ( Green card holder) she can reside with the US citizen spouse

. Unmarried children under 21 years old are also allowed to accompany the fiancée or spouse with certain limited exceptions.

As stated above  the US citizen will be required to execute an affidavit of financial support for the fiancée and the fiancée will be required to undergo a medical examination prior to the interview at the relevant US consulate or Embassy

DIRECT CONSULAR FILING

Apply directly for a Marriage based Green card through the US Embassy or Consulate in the overseas spouse’s home country

An often overlooked but sometimes best option of all is to file directly for a green card/immigrant visa through the US Embassy or consulate in the overseas spouse’s home country.

This is often a possibility when the US citizen is actually a resident in the spouse’s home country, in which cases some Consulates or Embassies will accept the direct immigrant visa filing without requiring the issuance of a K3 visa or any kind of application to be filed in the US.

Note in the event that the US citizen is residing in the US this will most likely NOT be a valid option.


Which of the above is the fastest?
This depends on certain factors, including:

  • Your intended state of residence  in the United States – the fact is the processing time for K1  applications varies greatly depending upon where the application is actually filed-whereas all green card applications theoretically should take the same time
  • The policy and filing delays of the US Embassy or Consulate in the country of residence of your fiancée/spouse-some will accept direct filings , others will not.

The prohibition on fiancées or spouses from entering the US on a tourist visa.
Contrary to what might seem logical, a fiancée or spouse should not enter the US on a tourist visa – or visa waiver – if their intent is to remain in the United states permanently at the time of entering.

In essence, if a fiancée or spouse plans to come to the United States with the intent to stay in the U.S.  permanently & in due course petition for a ‘Green card’- she or he is technically and legally ineligible for a Tourist visa & instead should apply for either a Fiancée visa (K-1) or a spousal visa. A further option, at least for the spouse of a US citizen, would be to obtain his or her ‘Green card’ directly from the U.S.  Consulate  or Embassy in his or her native country before leaving for the Unites States, that is if the Embassy or consulate will process the application

What is the legal justification for this prohibition?
As, at the time of entering the United States, they have the intent to remain permanently in the United States, they a re precluded form entering on a tourist visa as such a visa requires that the holder have a ‘temporary ‘ or nonimmigrant intent. Indeed, by representing themselves to be a tourist they could well be accused of having committed ‘visa fraud’. This in itself could have very serious negative consequences.
NOTE-These rules apply whether or not the individual arrives in the United States so a 90 day visa waiver-issued to most developed countries, such as the UK, Japan, France Germany, Australia etc.. or if they have managed to persuade a US consulate to issue them a B1/2 tourist visa.

What are the consequences of marrying a US citizen after originally entering the US on a  Tourist visa or a 90 day visa waiver?
Firstly, it is legitimate to enter  the US on a tourist visa or visa waiver and marry a U.S. citizen if AFTER doing so you actually intend to return to your home country. However, if someone simply enters as a tourist and subsequently marries a US citizen or otherwise applies for a Green card thru the adjustment of status process, and does so soon after entering as a tourist the Immigration service could accuse them of ‘visa fraud’.
By and large,  the 30/60/90 day rule is applied to determine whether the ‘tourist’ had a fraudulent intent upon entry.

The rule is applied as follows:

  • if s/he apply for a green card/adjustment of status within 30 days of entering the US, fraud is pretty much presumed-and the application will be denied
  • If s/he enters between 30 & 60 days, the presumption of fraud can be overcome, i.e. it is  ‘rebuttable’
  • I s/he enters between 60 and 90 days the presumption reverses.  Unless their is specific evidence of a preconceived immigrant/fraudulent intent   the adjustment of status application will be granted
  • For an application filed more that 90 days after entry , the visa fraud issue seldom arises

If fraud is found, then the consequences could be severe. At the very least the applicant will be required to return to his or her home country to file for a fiancée of spousal visa. In the worst case, the individual could be barred from re-entering the United States in the future under any circumstances.

To summarize: DO NOT ENTER THE UNITED STATES ON A TOURIST VISA IF YOU HAVE AN INTENT TO REMAIN THERE PERMANENTLY. TAKE TIME TO OBTAIN THE CORRECT VISA HOWEVER  INCONVENIENT THAT MAY SEEM TO BE.

In conclusion, this is a relatively complex area which must be properly addressed to ensure success and to avoid problems.

FOR AN INITIAL FREE CONSULTATION CALL:
Tel: In the US (760) 231-6498
In the UK call 0207-101-9399   email: info@usvisasolutions.com