Marriage and Immigration Basics

Getting married. is a super exciting and (if we’re being honest here) a sometimes super overwhelming time in life. So much love and happiness! And…. soooo many things to do! Part of you wants to do everything you can to make it the most special and magical day of your life and the other part wants to run out to the Justice of the Peace tomorrow so you can finally achieve the one thing you want more than anything – to be with your person for the rest of your life.

For some couples there is an extra obstacle in the path to their coming together. When a US citizen or Legal Permanent Resident (LPR) marries a foreign national, they face the long, costly, and intimidating road of immigration to the United States. The primary goal is to ensure your new spouse can have legal status within the United States, and as soon as possible. In a nutshell, there are two ways to do this – Consular Processing if your person is abroad, or Adjustment of Status if your person is already inside the United States.

Now, this article can’t even begin to pretend it covers all the details and it should most definitely not be read as comprehensive. It is meant to give you a general idea of what is out there and what your options may be. Everyone’s factual situation is different and you are strongly advised to consult an experienced immigration attorney to have your particular scenario analyzed to determine eligibility and options. Do not read anything in this article as legal advice, it is not intended to be so.

Please note that for purposes of this article, I use the word fiancée. While that technically refers to a woman engaged to be married, the following information applies to all genders from the far left to the far right of the spectrum, whether cis or identifying, and both gay and straight couples. No throuples, though, that’s not yet legal for purposes of US immigration.

Consular Processing

Pursuing a fiancée visa is often the first option couples research (I mean, hey, who hasn’t watched 90 Day Fiancée on TLC??). Many couples mistakenly believe they have no choice to do the fiancée visa first and other couples’ circumstances leave no choice but to do the fiancée visa. Perhaps it is a same-sex couple, and gay marriage is not legal in the foreign national’s country (and the foreign national is not able to obtain a visa to get to a country where same-sex marriage is legal). Or maybe the couple has strong cultural or religious beliefs that require them be married before living together (ie., no pre-marital sex).

Commonly, couples don’t realize that getting married first and pursuing a spousal immigrant visa can frequently be the better option. Not only is a spousal immigrant visa arguably a stronger case at the Consulate, but most certainly a money- and time-saver in the long run. Merely entering on the fiancée visa still leaves all the “to dos” laid out in front of you – get married, prepare and file an Adjustment of Status package, and a long, long wait not only for a work permit and travel permission, but for the green card itself. Why not have your person enter as a spouse on an immigrant visa, obtain instantaneous work and travel permission, and just have the green card show up in the mail?  

Fiancée Visa (K1)

This option is only available to a US Citizen. If you are a Legal Permanent Resident, skip down to the Spouse Visa (K3). If you’d rather pursue the fiancée visa you will first need to file an I-129F Petition for an Alien Fiancée(e) with United States Citizenship and Immigration Services (USCIS). Among other things, you will at a bare minimum need to prove that you have met your fiancée at least once in the past two years. Evidence of the bona fides of the relationship is required to prove that the relationship is real and that you have the intent to marry. Once the petition is approved it is sent to the National Visa Center (NVC) where it lives temporarily until it is passed on to the US Consulate in the home country of the foreign national. All US Consulates are under the umbrella of the US Department of State (DOS). An in-person interview is required and, if all is successful, the foreign national will get a K1 visa stamp in their passport. Once the foreign national enters the United States, the couple is required to get married within 90 days (not 91!). There is no changing status to anything else and no marrying anyone else. No wiggle room here. Once married, the foreign national would need to apply for Adjustment of Status (see below).

Spouse Visa (K3)

This process is not hugely different than the fiancée visa, but as mentioned above it is likely a stronger case in front of the Consulate and also removes the additional immigration processes that would otherwise be required once the foreign national enters the United States. Once married, the US Citizen files an I-130 Immigrant Petition for an Alien Relative with USCIS on behalf of their spouse. Again, evidence is required to show the marriage is bona fide. Once the petition is approved, it is sent to the NVC. The couple provides the NVC with all the required documentation, information, and forms that are required by the Consulate in the foreign national’s country. Once the NVC is satisfied that everything is in order, it will send the case along to the US Consulate and an in-person interview will take place. Assuming all goes well, the foreign national will get a K3 visa stamp in their passport allowing them to enter the United States as an immigrant. Through this process, the green card is produced and mailed to the US address on record. The green card provides immediate work and travel authorization. No need to apply for Adjustment of Status, which means no waiting six months or more for a work permit or permission to re-enter the United States after international travel. And, maybe the best part, no more immigration processes unless and until you are required to remove the conditions on your green card (two years later) or you choose to apply for naturalization (three years later) to become a US Citizen.

Adjustment of Status

If your person has entered on a fiancée visa, your next steps are to get married and apply for Adjustment of Status. If your person is already in the United States in another immigration status then Adjustment of Status would be the option for a married couple. If your person is “out of status” it may still be possible for them to obtain residency based on marriage to a US citizen, but you should consult with an experienced immigration attorney to determine eligibility.

Adjustment of Status is what we call a one-step or concurrent filing. Basically, it is a packet of different applications and petitions that get filed at once asking for a few different immigration benefits. There is the I-130 Immigrant Petition for an Alien Relative (remember that one?), the I-864 Affidavit of Support (to show the US Citizen makes enough money to qualify [don’t panic yet, it isn’t a super high bar]), the I-485 Application to Adjust Status (application for the green card), the I-765 Application for Employment Authorization, and the I-131 Application for Travel Document (in this case you are asking for Advance Parole). All of these forms require certain supporting evidence.

Once this filing is made with USCIS receipt notices for all but the I-864 will arrive in the mail, followed by a biometrics appointment notice. Processing times are always subject to change, but in general it is fairly safe to say that the “combo card” (the work permit and advance parole) will be approved roughly six-ish months after filing. Once the foreign national has that card they can work with authorization and are permitted to re-enter the United States after international travel. Keep in mind that most visa categories are not dual-intent, so it is imperative that the foreign national not leave the United States after filing the Adjustment of Status package and before receiving their advance parole (unless an attorney tells them it is okay). The combo card is meant to tide the person over until the marriage interview is scheduled, which is usually about a year-ish after filing. There is an in-person interview at the local USCIS Field Office where more and different evidence will be produced and the officer will determine whether to 1) approve the I-130 and, if so, 2) approve the I-485. Assuming all goes well, the case is approved and the green card follows in the mail!

Whether Consular Processing or Adjustment of Status, if the couple has been married for less than two years at the time of the grant of residence the residence is conditional and the card is only good for two years. The couple is required to make another filing before the green card expires to prove that they are still married. If the couple has been married for more than two years when the application to adjust is approved, then a 10-year green card is issued with no conditions. Either way, the foreign national is permitted to apply for citizenship after three years, as there is a shorter waiting period for those married to a US Citizen (sorry, doesn’t apply to the spouse of an LPR).

As you can see, you may have options! To determine which path forward may be best for you and your person depending on your particular circumstances, it is recommended that you seek the advice of an experienced immigration attorney. Everyone’s factual scenario is different and while the above captures the processes in general, it is sadly true that the US immigration process is highly complex and not necessarily intuitive, so better to get started off on the right path then to realize a missed opportunity or experience a failure down the road.