When a U.S. citizen falls in love with an overseas foreign national, there are two ways to bring him/her to the United States as legal resident to live together. One way is to apply for a fiancé(e) visa (K-1 visa) for the foreign national. The other way is to petition for an immigrant visa on his/her behalf. There are pros and cons to both options. (Note: The following discussion assumes the foreign national is living in an overseas country. For foreign spouses who are residing in the United States, they may be able to apply for a green card through the process of Adjustment of Status.)
K-1 Fiancé(e)Visa
The K-1 fiancé(e) visa is technically a non-immigrant visa, as it does not confer permanent resident status to the holder. However, in reality, it works more like a hybrid visa with features of an immigrant visa.
To apply for a K-1 visa, the parties must not be married, but they must be able to legally marry each other. Further, they must have met at least once in person within the past two years, unless they are eligible for an exemption. For example, some cultures or religions do not allow the couple to meet each other before their marriage. Or if the couple can prove that it would be extremely difficult for them to meet due to financial or health reasons, they may also request for exemption.
The application process starts with the I-129F application, which is used to establish the relationship of the couple. Evidence of their relationship and eligibility to get married must be submitted. Further, documents to prove that they have met each other in-person must also be provided. These include photographs, travel documents, hotel reservations, visa stamps, etc. If the U.S. citizen has a criminal record, documents must also be submitted to USCIS to explain what happened.
Upon approval of the I-129F petition, the case will pass through the National Visa Center before it is sent to the American Embassy or Consulate where the fiancé(e) is located. An interview will be conducted to confirm the couple's relationship. Note, the visa officer may not be convinced that the relationship is genuine, and K-1 visa rejections are common.
Assuming a K-1 visa has been issued, the foreign national may then enter the U.S. with it. Upon arriving in the United States, the couple must get married within 90 days. There is no exception to this requirement. After their legal marriage, the foreign spouse may then apply for a green card through the process of Adjustment of Status. The foreign spouse may stay in the U.S. until the green card is approved. During this period, she may also apply for work authorization to work legally. Another interview could be scheduled for the couple at a local USCIS officer before the green card can be approved.
Immigrant Visa Petition
If the couple have already been married, the foreign spouse should directly apply for an immigrant visa. Where they get married is not important, as long as the marriage is considered legal according to the local laws.
First, the couple would file an I-130 Petition for Alien Relative with USCIS. This petition is again to establish their marital relationship. Documents should be submitted to explain and prove their relationship. For examples, how they met and how the relationship developed, etc. They must also prove that their marriage was lawful. If they have been married before, they must provide legal documents to prove that the previous marriage was legally terminated.
Upon approval of the I-130 petition, the case will be sent to the National Visa Center (NVC). The foreign spouse must submit a comprehensive visa application called DS-260 with NVC, providing information about his or her background, family, education, work history, previous travel history, social media information, etc.
Financial documents, such as income tax returns, to prove that the U.S. citizen can support the foreign spouse must also be submitted with the Form I-864, Affidavit of Support. NVC processing has become lengthy and onerous in recent years. Special care must be taken when preparing NVC documents.
Assuming NVC is satisfied with the documents, the case will then be forwarded to the American Embassy or Consulate where the foreign spouse is located. As in the case of K-1, a visa interview will then be scheduled. Only the foreign spouse needs to attend. Questions will be asked about the couple's relationship. An immigrant visa will be issued to the foreign spouse if he or she is found to be eligible to immigrate. There are two types of immigrant visa, IR1 and CR1. If the couple have been married for less than two years, then a CR1 visa will be issued. CR1 is conditional for two years only; it means that after about two years, the couple must file another petition to remove the conditions. Either way, the foreign spouse may then travel with the visa to the U.S. as a landing immigrant. An actual green card will be mailed to the couple's address.
There is a variation of this method. If the foreign national happens to be legally present in the U.S., he or she may be able to apply for a green card through Adjustment of Status directly without departing the U.S.
Conclusion
When it comes to applying for a marriage green card, there are different approaches. Which way is more appropriate depends on the couple's particular situation and circumstances. Immigration processing time has gotten longer due to the pandemic and staffing issues. It is important to plan ahead of time to avoid unnecessary delays.
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