Wednesday, December 1, 2010

K-1 or Immigrant Visa (Green card)

Fiancé Visa known as K-1 is available to fiancés of U. S. Citizens. Typically, upon getting married, U. S. Citizen and spouse want to be together as soon as possible. Hence, pre-planning requires considering all the options- should the U. S. Citizen file for K-1 visa or file an Immigrant Visa Petition by submitting Form I-130 and then later file for fiancé Visa (K-3 visa).

K-1 visa and K-3 visa are totally different. K-1 is available when the marriage has not taken place and the fiancé will enter into the U. S. on non-immigrant visa and marry the U. S. citizen within 90 days. See previous article here.

K-3 visa is available to U. S. citizen spouses, of course after the marriage. It is issued to facilitate the arrival of U. S. Citizen spouses in the U. S. sooner when the immigrant visa petition process could take a long time. I am not sure if it has relevancy these days because USCIS (United State Citizenship & Immigration Service) is processing immigrant visa petitions (filed on Form I-130) rather quickly. However, in the past such visa petitions were slow to process and K-3 visa made perfect sense. It could also make a difference in the future when USCIS might divert its’ resources and I-130 process might slow down. I digress.

Again, K-1 visa is only for those who would like to marry in United States. It is important to note that from a cultural point of view girl's family in lot of countries would like to have the wedding in home country than sending the girl to another country. Different factors ranging from legitimacy of the relationship to social announcement and celebration to emotional aspect of marrying daughter off come into play.

So, it is important to discuss all of these issues among the family and evaluate where they want to do the wedding and which visa needs to be filed. If the wedding must take place in home country, and not in the U.S., K-1 is not an option. K-1 visa can take about 6-7 months in processing including petition adjudication by the USCIS and scheduling interview at the US Consulate. K-1 has to marry within 90 days of entry and apply for adjustment of status. So, the K-1 may lose about 60-90 days after entry and prior to applying for adjustment of status.

It can take about another 6-7 months for scheduling the interview and to approve the case. It means that it can take up to 9-12 months before the K-1 visa holder gets the green card. Another big factor is that parents and other family members who might want to attend the wedding in to the U. S. might not get the visa to come into the U. S. The consulate has the right to issue or deny the visa to parents in the exercise of discretion and there is not much an attorney can do to help. Such visa denial to the parents can really ruin the enjoyment and excitement.

On the other side, if immigrant visa process is followed, the spouse in foreign country may enter directly on immigrant visa within 8-11 months from any consulate and the green card will arrive in the mail within 1-3 weeks of entry. This process is less expensive. K-1 visa holder has to file for adjustment of status (green card) here in the U. S. and spend time and money on filing fees, get biometrics done and wait for employment authorization document for 3 months.

Needless to say, K-1 route is much more expensive and more time consuming to obtain the green card. The K-1 cannot apply for social security card, cannot apply for driver's license or work until receives the work permit, which may take about 60-90 days after you filed the adjustment of status.

K-1 visa is also a non-immigrant visa. U. S. Consulate has wide latitude in using discretion in issuing any non-immigrant visa. They can deny the visa to the fiancé if the Consul is not satisfied with the bona fides of the engagement or relationship overall.

I always suggest a safer and less expensive way to my clients which is to file the immigrant visa petition and wait for your green card turn to come.