If you plan to join your fiancé who is a U.S. citizen and currently reside outside the United States, or if you are married to someone who is a legal U.S. resident, you will need to obtain a Fiancé Visa or a Marriage-based Green Card to live with them in the U.S. It’s important for immigrants to be aware of the various requirements for each option, understand the application process, and be mindful of the factors that may affect their eligibility.
Marriage-Based Green Card / Spouse Visa
If you are married to a U.S. citizen or a lawful permanent resident, you may be eligible for a spouse visa. The type of visa you apply for depends on the length of your marriage:
• A Conditional Resident Visa (CR-1) is suitable if you’ve been married for less than two years when your visa is approved. CR-1 visa holders receive a conditional green card valid for two years upon arrival in the U.S.
• An Immediate Relative Visa (IR-1) applies if your marriage has lasted two years or more at the visa approval time. IR-1 visa holders receive a green card valid for 10 years.
As a spouse visa holder, you can work immediately upon arriving in the U.S. If you have a conditional green card, you and your spouse must file Form I-751, Petition to Remove Conditions of Residence, 90 days before it expires to apply for a permanent green card.
In the event of a divorce, if you have a permanent green card, your status usually remains secure. However, if you have a conditional green card, you’ll need to apply individually for a permanent one. It’s advisable to work with an experienced immigration attorney to navigate this process and mitigate the risk of deportation after the conditional card expires.
K1 Fiancé Visa.
If you’re engaged but not yet married to a U.S. citizen and living outside the U.S., a K1 fiancé visa could be the appropriate route for you to enter the United States.
The K1 visa is a nonimmigrant visa that allows the foreign fiancé(e) of a U.S. citizen to enter the U.S. with the intention to marry within 90 days of arrival. Following the marriage in the U.S., the foreign spouse must apply for an adjustment of status to become a permanent resident (Green Card holder). This visa is specifically designed to expire after 90 days and cannot be renewed; this means that the marriage must occur within this period.
It’s important to note that holders of a K1 visa must apply for a work permit (employment authorization) to work in the U.S., and permanent residents cannot petition for a K1 visa—this option is exclusively available to U.S. citizens.
The Process
Process for Marriage-based green card / Spouse Visa
The process for bringing a spouse to the United States involves the following steps:
1. Petitioning: The U.S. citizen or lawful permanent resident (LPR) spouse starts the process by filing Form I-130, Petition for Alien Relative, with U.S. Citizenship and Immigration Services (USCIS). This form must be accompanied by documents proving the marriage’s legitimacy, such as a marriage certificate, joint financial statements, photos together, etc., and proof of the petitioner’s citizenship or LPR status.
2. Applying for a Spouse Visa: After the I-130 is approved, the foreign spouse must complete Form DS-260, Immigrant Visa Electronic Application. The application process includes submitting required supporting documents that demonstrate the legitimacy of the marriage and the foreign spouse’s eligibility for the visa. Following this, the foreign spouse will be required to attend an interview at a U.S
The K-1 Fiancé Visa Process
The K-1 fiancé visa process includes several critical steps and requirements:
1. American Citizenship of Petitioner: The U.S. partner must be a citizen to petition for a K-1 visa. Permanent residents with a green card cannot use this process and would need to consider a spouse visa instead.
2. Proof of Legitimate Relationship: Evidence such as photos, correspondence, and a marriage certificate (if applicable) is necessary to prove the relationship is bona fide.
3. Legal Ability to Marry: Both parties must be legally free to marry, meaning any previous marriages have been legally dissolved through divorce, annulment, or death.
4. In-Person Meeting Requirement: The couple must have met in person at least once within the two years prior to filing the visa application, barring some exceptions for cultural or religious reasons.
After entering the U.S. and marrying, the foreign spouse must file Form I-485, Application to Register Permanent Residence or Adjust Status, within the 90-day period. Upon approval, the spouse will obtain conditional resident status.
Two years after becoming a conditional permanent resident, the couple can jointly file Form I-751, Petition to Remove Conditions on Residence. If approved by USCIS, the conditional status is removed, and the spouse becomes a lawful permanent resident (LPR).
Make the Right Choice of Visa for You and Your Partner
Depending on your circumstances and the nature of your relationship with your partner, you may choose either a K-1 fiancé or spouse visa. However, the right choice of visa and the application process aren’t always clear.
Patricia Elizee is the managing partner of the Elizee Law Firm, an immigration law firm located at 1110 Brickell Avenue, Suite 315, Miami, Florida 33131. Phone 305-371-8846
