rings and greencard

August 2, 2011

We often get the question – which is better, to get married abroad, or get married in the US?  This question boils down to what is 

  • quicker
  • cheaper
  • easier
  • better

a fiancé visa or a spousal visa?

There is one process for the fiancé visa, and two options for the spousal visa, for a total of 3 options available for those who are not yet married and trying to decide which way is best for them.

The following is an attempt to give you an ESTIMATE of the various factors involved in each of these processes, in order to assist your decision as to which one to use. 

It is important to note that this article ONLY applies to cases where the foreign national fiancé is abroad.  If he/she is already in the US, then it is often possible to simply get married in the US, and file an I-485 green card application case.  It also should be clear that if you are already married, you are not going to be able to do the fiancé visa case, and are left with only two choices.  

This article also does not cover cases where the I-130 petition is filed with the consular post abroad.  This option, in our experience, is not a commonly available as it typically requires the petitioner to be resident in the foreign country where the consular post is located.

Finally, the following analysis assumes that the petitioner is a US citizen.  In fact, two of the processes (the K-1 and K-3 processes) require the petitioner to be a US citizen.  On the other hand, the Spousal Immigrant Visa does not.  It also allows permanent residents to be petitioners as well as US citizens.  HOWEVER, spousal petitions filed by permanent residence generally have a multiple-year waiting period due to the visa backlog.  For that reason, we are not considering them here, as the purpose is to compare and contrast 3 relatively similar (in terms of important considerations noted above) processes. 

The various factors we will consider are:

-filing fees
-time between case start and admission to US
-time between case start and permanent residence
-time between admission and work eligibility
-time between admission and ability to travel abroad
-petitioner travel requirements
-number of interviews required
-number of medical exams required
-treatment of stepchildren
-forms required-total number of form pages involved 

These are not all the considerations that one may need to take into account, but they are some of the most important, in our experience. 

Filing fees (current as of February 2015):

Fiancé K-1 Visa case filing fees total $1675.  This includes the

-I-129F – $340
-DS-160 – $265
-I-485 – $1070

Spousal K-3 Visa case filing fees total $1755.  This includes

-I-130 – $420
-DS-160 – $265
-I-485 – $1070 

Spousal Immigrant Visa case filing fees total $1025.  This includes

-I-130 – $420
-DS-260 – $325
-I-864 review fee – $120
-ELIS fee - $160

The Spousal Immigrant Visa wins this factor, with the Fiancé K-1 Visa Case coming in second. 

Time between case start and admission to US (based on Vermont Service Center processing times):

Fiancé K-1 Visa case requires about 6 1/2 months.  This includes

-I-129F approval – about 5 months
-K-1 visa approval – another 1 1/2 months

Spousal K-3 Visa case requires about 7 months.  This includes:

-I-130 receipt notice – about 1/2 month
-I-129F approval – another 5 months
-K-3 visa approval – another 1 1/2 months

Spousal Immigrant Visa case requires about 10 months.  This includes:

-I-130 approval – about 8 months
-Immigrant Visa – another 2 months

Often what is most important is reuniting with your loved one.  With this factor in mind, the Fiancé visa comes in ahead, with the Spousal K-3 visa a close second.

Time between admission and permanent residence: 

Both the Fiancé K-1 Visa and Spousal K-3 cases require about 4 additional months after admission into the US. 

This is where the big benefit of the Spousal Immigrant Visa comes in.  In this case, the foreign national becomes a permanent resident immediately upon admission and does not need to apply or interview again (until the removal of conditions petition and/or citizenship application a few years down the road). 

Time between admission and work eligibility:

There has been some confusion over the K-1 visa holders work authorization.  Technically, the K-1 visa holder is eligible for work authorization right away as an "incident to status."  However, regulations pertaining to employers' verification responsibilities require additional documentation of work authorization in the form of an EAD (Employment Authorization Card also called a "work permit.").    Therefore, for practical purposes, the K-1 holder must usually have an EAD in order to work for an employer.  It is possible for a K-1 holder who has not yet filed the I-485 green card application to file an EAD application (Form I-765), but they take about 80-90 days to process, and expire upon the expiration of the K-1 visa status.  Since the K-1 visa status expires 90 days from admission, the end result is an EAD that is only good for about 10 days at the most.  So, practically speaking, the K-1 visa holder should plan on getting married, and filing the I-485 green card application as soon as possible.  The I-765 work permit application may be filed at the same time, and take about 80-90 days to process.  So, with all this in mind, the K-1 should expect work eligibility 80-90 days after filing the I-485.

The Spousal K-3 visa holder is in the same position as the K-1 in this respect; i.e., he/she should plan on not having work authorization until 80-90 days after the I-485 is filed.

For someone admitted as a Spousal Immigrant, work authorization is immediate.  As a permanent resident, he/she may work anywhere any other green card holder may work.

Time between admission and ability to travel abroad:

The Fiancé K-1 visa is single entry, and so before he/she can travel abroad again, it is necessary to wait about 80-90 days after the filing of the I-485 in order to get Advance Parole.  (Advance Parole is permission to return to the US while your green card is pending, and an Advance Parole Application – Form I-131 – is usually filed at the same time as the I-485).

The Spousal K-3 visa is multiple entry, valid for 2 years, and an Advance Parole is not required while the visa is still valid.  So a K-3 may travel virtually immediately upon admission in K-3 status.

The Spousal Immigrant may travel abroad virtually immediately after admission as a permanent resident (this article does not discuss the implications of extended or frequent international travel for permanent residents).

Petitioner travel requirements:

The Fiancé K-1 visa requires the petitioner and beneficiary to have met each other (i.e., been in each others' physical presence) within 2 years prior to filing the petition (exceptions exist in some cases).

Both the Spousal K-3 and Spousal Immigrant Visa require the parties to have been in each others presence either at the marriage or sometime thereafter prior to the filing of the petition.  (A marriage where the parties are not in each others' presence is termed a "proxy marriage."  If a proxy marriage is valid in the country in which it is performed it is generally considered valid by USCIS provided the parties have since consummated the marriage prior to filing the petition).

Number of interviews required:

Both the Fiance K-1 and Spousal K-3 are interviewed at the consular post.  There is also the possibility of another interview with USCIS prior to the adjudication of the I-485 (although this is not currently standard practice).

The Spousal Immigrant Visa requires a single interview a the consular post. 

Medical exams: 

Both the Fiance K-1 and Spousal K-3 are required to get a medical exam prior to visa issuance, but are not required to complete any of the vaccination requirements until the green card process begins in the US.  Essentially this means that, unless the applicant has completed the required vaccinations at the time of the medical exam abroad, he/she is probably going to need another  medical appointment in the US, for a total of two.   

The spousal immigrant takes care of all entire medical exam requirements, including vaccinations, abroad prior to issuance of the immigrant visa.

Stepchildren of petitioner:

The Fiance K-1 visa process allows for unmarried children of the beneficiary who are under the age of 21 to obtain "derivative" visas to accompany or follow the principal beneficiary, and may adjust status based on the parent/step-parents' marriage even if the marriage occurred after the child's 21st birthday.)

The Spousal K-3 visa process and the Spousal Immigrant Visa process treat stepchildren a bit differently than the Fiance K-1 process.  In order for the stepchild to immigrate with the principal beneficiary, the stepchild must have been under 18 at the time of the petitioner and beneficiary's marriage.  As long as that occurred, then the stepchild may otherwise immigrant as a derivative prior to his/her 21st birthday. (The Child Status Protection Act applies to Spousal Immigrant Visa cases, and may reduce the child's age for purposes of determining age-out in those cases). 

It is also important to note that, under the Spousal Immigrant Visa process, the US citizen petitioner must file a separate I-130 petition (and pay the required filing fees) for each stepchild.

Forms and form pages required:

The Fiance K-1 Visa process takes a total of 9 forms with a total of 30 pages.

The Spousal K-3 Visa process takes 10 forms for a total of 32 pages. 

The Spousal Immigrant Visa process requires a mere 3 forms with a total of 14 pages.

Conclusion:

Of course individual cases may vary, but generally the best option for most of the factors is the Spousal Visa.  Where the Spousal Visa falls short, however, is usually one of the most important factors for most people – quickly reuniting with loved ones.  In those cases, either the K-1 or K-3 processes would be best.

The clear winner in cases where there are stepchildren who are nearing the age of 21 is the K-1 Fiance Visa process, which allows for the stepchild (or "stepchild-to-be") to immigrate even when the marriage occurs after the stepchild turns 21. 

As noted above, there are numerous factors that are not considered here, but we hope this has given you an idea of the things to keep in mind when deciding which way is best for you.  For additional questions or to discuss your particular case, please contact us at 410-719-1501.

 

 

K-1 + Adjustment
(Option 1)

I-130 + K3 + Adjustment
(Option 2)

Spousal Visa
(Option 3)

Best option when this factor is most important

Filing Fees

$1675

$1755

$1025

3

Time Frame to enter

7 mos.

7 mos.

12 mos.

1 or 2

Time Frame to green card

+ 4 mos.

+ 4 mos.

+ 0 mos. (permanent resident upon entry)

3

Work authorization

90 days after filing I-485

90 days after filing I-485

immediately upon entry

3

Travel flexibility

90 days after filing I-485

immediately upon entry

immediately upon entry

2 or 3

Petitioner travel requirements

Must have seen beneficiary in person within past 2 years

Must have been in beneficiary's presence during or after marriage

Must have been in beneficiary's presence during or after marriage

depends

Interviews

1 or 2

1 or 2

1

3

Medical exams

2 – 1 abroad and 1 in US

2 – 1 abroad and 1 in US

1 – abroad

3

Stepchildren

Must be admitted in K-2 status prior to age 21, but may adjust status after age 21

Parent's marriage must have occurred prior to age 18, and must adjust status prior to age 21.

Parent's marriage must have occurred prior to age 18, and must adjust status prior to age 21 (Child Status Protection Act applies and may reduce child's age in some cases).  Requires separate petitions for each child.

1

Forms required

I-129F – 3 pages

I-134 –2 pages

DS-156 – 2 pages

DS-156K – 1 page

DS-230I – 2 pages

I-485 – 6 pages

I-864 – 8 pages

I-765 – 1 page

I-131 – 3 pages

Total: 30 pages

I-130 – 2 pages

I-129F – 3 pages

I-134 –2 pages

DS-156 – 2 pages

DS-156K – 1 page

DS-230I – 2 pages

I-485 – 6 pages

I-864 – 8 pages

I-765 – 1 page

I-131 – 3 pages

Total: 32 pages

I-130 – 2 pages

DS-230 – 4 pages

I-864 – 8 pages

Total: 14 pages

 

3

 

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.

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