SEVERAL options exist for a US citizen to bring his/her foreign-national fiancé(e) to the United States. One popular option is to marry the fiancé(e) in the country in which he/she resides, and file an I-130 immigrant petition, with the fiancé(e) to undergo consular processing for an immigrant visa when the I-130 petition is approved. However, this option often is not advisable in that the US-citizen petitioner would have to learn and comply with complicated, country-specific marriage license requirements, or legal barriers to marriage may exist to the US-citizen petitioner in the foreign country (as in the case of the Philippines, which in some circumstances will not recognize a foreign divorce judgment). In such cases, the best way to get your fiancé(e) to the US is via a K-1 Fiance(e) visa.
The K-1 Fiancé(e) visa allows a fiancé(e) to enter the US for 90 days to allow marriage to take place. By having the marriage take place in the US, couples are able to bypass the foreign country’s license requirements and/or other impediments to marriage imposed by a foreign law.
To be eligible for the K-1 Fiancé(e) visa petition, the following are required: 1) the petitioner must be a US Citizen, 2) the petitioner must have an intent to marry the fiancé(e) within 90 days of his/her arrival in the US, 3) the petitioner and fiancé(e) must have the ability to marry (i.e. any previous marriages were terminated by divorce or death), and 4) the petitioner and fiancé(e) must have physically met each other within 2 years of filing the K-1 Fiancé(e) visa petition (certain exceptions apply to this fourth requirement). Minor unmarried children of the fiancé(e) may also come to the US under a K-2 visa classification.
Upon arrival in the US, the fiancé(e) can immediately apply for authorization to work in the US. He/she does not have to wait until marriage to apply for work authorization. The work authorization issued to the fiancé(e) is valid for 90 days after entry. This provides the fiancé(e) the ability to immediately seek lawful employment.
Once married, the spouse of the US citizen can file an I-485 application for adjustment of status (from K-1 to permanent resident), and remain in the US while the application is pending. At the same time the I-485 application is filed, the fiancé(e) may apply for an extended work authorization. Upon approval of the I-485 application, the fiancé(e) is granted a conditional green card that is valid for 2 years, after which he/she can apply to remove the conditions on the green card.
The K-1 Fiance(e) status automatically expires after 90 days. If marriage with the US Citizen who petitioned the fiancé(e) does not occur within that time, the fiancé(e) begins to accrue unlawful presence. Also, the fiancé(e) will be precluded from adjusting to permanent resident status in the US if he/she marries another US citizen (however, he/she may be able to become a permanent resident through consular processing with a provisional waiver). If you are a US Citizen who is planning to marry your foreign national fiancé(e), or you are someone who arrived under a K-1 Fiance(e) visa whose marriage did not take place, it is recommended you consult with an experienced attorney.
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Darrick V. Tan, Esq. is admitted to practice law in California and Nevada. Mr. Tan is a graduate of UCLA and Southwestern University School of Law. He is a member of the Consumers Attorney Association of Los Angeles and is a former member of the Board of Governors of the Philipp ine American Bar Association.
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LAW OFFICES OF DARRICK V. TAN, 3580 Wilshire Boulevard, Suite 900, Los Angeles, CA 90010. Tel: (323) 639-0277. Email: [email protected].
Atty. Darrick V. Tan,
I would like to reply to a few things in your article for clarification.
I do not believe that saying marrying abroad and filing a spouse visa using an I-130 petition is “not advisable” as it is complicated is all that accurate. I married a my wife in the Philippines and then petitioned her on a spouse visa. She has been here for 2 years now and we just applied to remove her conditions on her 2 year green card a few months ago.
I found it very easy to understand the process of marriage in a foreign country like the Philippines. I found lots of resources. Firstly, the US Embassy in Manila gives great resource information on their website for marriage in the Philippines. This included obtaining the “legal capacity to marry” and information of the Philippine government marriage requirements. I also found lots of information about marriage in the Philippines just by searching for Marriage in the Philippines for a US Citizen”. In addition, my then fiance, now wife, obtained a checklist from her municipality on the requirements. It was very easy to get the legal capacity to marry. We got the marriage license very smoothly. We knew about the 10 day waiting period. All this by doing our own research.
I disagree with you saying that a person with a fiance visa can go to work as soon as entering the US. I would agree with that for a person with a spouse visa as a spouse visa serves as a temporary green card until the green card arrives. Also, the green card arrives very quickly for a spouse visa holder. However, for a fiance visa holder, it is nearly impossible to work as soon as you enter the US. You are right that you can apply for an Employment Authorization Document as soon as you enter the US. However, if you get approval, that EAD will only last for 90 days. Then, you need to apply again for another EAD as part of adjusting status. Moreover, it takes 60 to 90 days or more to get an EAD approved. Also, there is a fee of $410 filing fee + $85 biometrics fee to apply for an EAD at first arrival. Why file or pay for something that only lasts 90 days if it takes 60 to 90 days or more to get? Therefore I disagree that this “provides the fiancé(e) the ability to immediately seek lawful employment”.
Therefore, for a fiance visa holder, it is best to apply for the EAD after you marry and apply to adjust status. When you apply for an EAD with and I-485, Adjustment of Status, the fee for the EAD is waived. It still takes 60 to 90 days to get. However, you can then work and it won’t expire until you get your green card which is permanent authorization to work.
Actually, the K-1 fiance visa expires as soon as the visa holder enters the US. The fiance visa is only for a one time entery into the US. Then the fiance is allowed in the US on their I-94 card which stipulates that they must marry within 90 days or have to leave the country. It is best to marry and apply to adjust status before the I-94 card expires. If you apply for the adjustment of status before your I-94 card expires, the government considers you to still be “in status”.
Thank you very much for allowing me to submit my comments on your article.