On the whole, a CR marriage visa is likely the better choice from an immigration standpoint than a K1 Fiance Visa – but each relationship is different and so there can be times when a K1 visa makes more sense.
Note that K3 spouse visas are currently being administratively closed in nearly all cases.
There Are a Number of Considerations
1. Visa Refusal
Any visa can be refused. So, you should not assume that having a genuine relationship is sufficient to secure either a fiance visa or marriage visa. Marrying is not sufficient reason to issue a visa. It is the duty of an immigration officer to find problems, delay, and deny. That officer examines all requirements with skepticism. The immigration process itself puts stress on the relationship and tests it.
Fiance Visa Refusal
In the event of a fiance visa refusal, the USCIS currently administratively closes the case without oversight. This is illegal in my view, but it is current practice. As such, there is no administrative appeal and instead a court action is needed to try and fix the problem. Visa denial is a serious matter because it is damaging to future attempts at obtaining any visa – fiance visa, spouse visa, or otherwise. It becomes important to point out procedural errors and try and set the record straight to help open the door for future attempts at immigration.
Marriage Visa Refusal
In the event of a spousal visa refusal, I can appeal to help correct the problem, and even sometimes file a court action to help prompt compliance with rules. Very often, the government agencies violate their own rules. So, you should not assume the government plays fair or is on your side. Often, they give information that helps protect the government, but not you. Immigration officers view finding problems as a “win,” so be careful.
Often, people come to me after being refused a visa asking to appeal. However, you cannot be successful on appeal unless your original submissions were nearly perfect. Any defect in your submissions will be cited as “the reason” your original case was denied. As such, it helps to seek legal advice and avoid risks before proceeding with immigration submissions.
2. Green Card
When processing on a CR spouse visa, we can also preprocess on a green card so that when the foreigner arrives in the U.S. he or she is already green card approved. Basically, we can combine two steps into one when processing on a spouse visa.
By comparison, a fiance visa must be completed in two steps. First, we bring the foreigner to the U.S. on a fiance visa, then the couple marries in the U.S. After marriage, the foreign spouse remains in the U.S. to apply to become a permanent resident green card holder based on the marriage.
On average, a marriage visa is currently taking several weeks or more longer to obtain than a fiance visa. Timing changes and each consulate is different, so you need to contact an immigration attorney for a reasonable timing estimate. Obtain your free initial consultation today.
4. Marital Rights?
Marrying abroad is a valid marriage if conducted according to the laws of the place of marriage. So, don’t think there is a problem with a foreign marriage or that you must reregister in the U.S. However, the marriage itself does not guaranty the foreigner entry to the U.S. A marriage visa is still required. The closeness of the marriage is important, so spend time together as much as possible before and during case processing.
5. Prenuptial Agreements
It is generally better to bring the foreigner to the U.S. on a fiance visa and enter into a prenuptial agreement in the U.S. than to try to have the foreigner sign a prenups outside the U.S. In the event of a divorce, there can be evidentiary problems with enforcing the validity of a prenups signed outside the US. You need to discuss this issue with a family law attorney in your State who has experience with prenups. I sometimes work with family law attorneys regarding the impact of immigration on prenups.
A fiance visa is necessary if the foreigner is immigrating a child between the ages of 18 and 21 years. On a fiance visa, it is possible to immigrate an unmarried foreign dependent child to the U.S. up to the age of 21 years.
By comparison, the marriage must occur before the child turns 18 years of age in order to immigrate a child as a dependent on a spouse visa. I’ve had clients with older children divorce and process on a fiance visa just to immigrate a child under 21 who falls in the gap.
Call for Assistance
Consider a licensed, professional immigration legal representative before proceeding. Immigration law is large and diverse, covering many types of immigration. Government agencies have become increasingly adversarial. It helps to have our team on your side to prevent avoidable and unnecessary delays, anticipate problems, and effectively navigate your matter toward successful completion. We provide a free initial consultation for those interested in possibly working with us on case processing, and we’re happy to answer your questions.
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