U.S. Citizenship and Immigration Services (USCIS) announced yesterday that it is changing its rules on…
It is common to have the choice of pursuing either a marriage-based visa or fiancé(e) (I-129F, K-1) visa. Let’s look at the advantages and disadvantages of each. But first we’ll start with an overview of what the two processes look like, since they’re importantly different from each other.
Marriage-based visa process
Let’s start with some terminology. Once you start doing some research on these issues you’ll see a lot of designations getting thrown around.
- I-130 – The I-130, Petition for Alien Relative is a form filed by a U.S. citizen or permanent resident for a foreign spouse. As we’ll discuss below, think of this as the U.S. spouse’s invitation to get the process started.
- DS-260 – The DS-260 Immigrant Visa Application is filed by the foreign spouse at the second step of the process (see below). Following approval of the I-130 petition, this is the foreign spouse’s request to be issued a visa.
- I-864 – The Form I-864, Affidavit of Support is a mandatory form in both the marriage-based and fiancé(e) visa processes. By filing this form, the U.S. spouse promises to provide financial support, if necessary, to the foreign spouse.
- IR-1 – This is the visa designation given to a foreign spouse who has been issued a marriage-based visa. IR stands for immediate relative, which is how immigration law categorizes the spouse of a U.S. citizen.
- CR-1 – This is also a visa designation, but applies when the couple has been married less than two years. CR stands for conditional resident. Conditional residents have all the rights of permanent residents, except that they have to petition for an unconditional cards near the two-year anniversary of their immigration status.
- F2 – This is a visa designation given to the spouse of a lawful permanent resident (green card holder).
Pursuing a marriage-based visa is a three step process, unlike fiancé(e) visas which take four steps. Let’s look at each step.
Step (1) – I-130 petition
The marriage-based visa process begins with the U.S. spouse filing a Form I-130, Petition for Alien Relative. The U.S. has largely an invitation-only immigration system. In order to come to the U.S. as a permanent resident, the process begins with an invitation – in this case from a U.S. spouse. Once approved, the petition will establish that there is a qualifying relationship for immigration purposes, in this case a marriage with a U.S. spouse. Note, however, that the validity of the marriage will still be examined later in the immigration process.
The Form I-130 is filed with U.S. Citizenship and Immigration Services in the United States. (There are very rare circumstances where it is filed abroad). The filing fee is currently $420. There are a slew of additional documents that are filed along with the I-130 petition. These include:
- A Form G-325A for both applicants (showing biographical information);
- Passport photos of both parties;
- Proof of the U.S. spouse’s citizenship or resident status.
- Proof that prior marriages were legally ended;
- Proof of any name changes; and
- Documentation showing the legitimacy of the marriage.
The last item on that list typically takes the most work. A well documented packet might easily contain upwards of 50 pages of documentation. We have filed marriage based packets with over 1,000 pages of documentation in complex cases.
After the I-130 is filed it is processed at a central facility by USCIS. Current processing times are about 5 months for I-130 petitions. If USCIS determines that documentation is missing, it will issue a Request for Evidence (RFE). Each time this happens – and it can happen more than once – the case will be delayed by at least a month. RFEs are a common cause for substantial delay in self-filed petitions.
Step (2) – DS-260 application
After USCIS approves the I-130 petition that agency is done with the case. The petition file then needs to be physically delivered to the Department of State’s National Visa Center (NVC). After the case is received by the NVC it will issue two invoices: one for the DS-260 application and one for the I-864, Affidavit of Support. The fees are currently $325 for the DS-260 and $120 for the I-864. The fees must be paid online with the NVC before further action can be taken on the case.
A note about NVC transfer delays. Merely waiting for this transfer has been a time-consuming process recently. It is not unusual for transfer to take over a month, and we have seen multiple-month delays in a number of cases. In such scenarios there are ways to address the delay by seeking administrative oversight from USCIS or its independent ombudsman’s office.
After both NVC invoices are paid, the foreign spouse may complete the DS-260. This is done online at the Consular Electronic Application Center website. The DS-260 is a very long application, that asks detailed background questions about the foreign spouse. Once the DS-260 has been completed and electronically filed then the applicant is issued a document cover sheet. This document cover sheet is used to file another round of paperwork with the NVC. These documents include:
- An original, signed I-864 from the U.S. spouse (an additional I-864 may be required if the spouse’s income is insufficient or irregular);
- IRS tax transcripts or copies of tax returns in support of the I-864;
- The foreign spouse’s birth certificates;
- Police certificates for ever country the foreign spouse has lived (the rules on obtaining these are different for all countries);
- Court and prison records, if applicable, for the foreign spouse;
- Marriage termination documents from previous marriages;
- Military records, if applicable, for the foreign spouse;
- Passport photos of the foreign spouse; and
- Passport copy for the foreign spouse.
All the required supporting documents are mailed to the NVC along with the cover letter. In the past year the NVC has experienced substantial delays in processing these document packets. For a period of time the NVC was issuing “60-day letters” in all cases, saying that it would be at least two months after receiving a packet before the NVC would review it. Those were later replaced by “30-day letters,” but it is still common to see the NVC take over a month to process supporting documents. This is bad enough, but if there are any problems with the packet then the NVC will issue one or more Requests for Evidence (RFEs). Each time this happens the case goes to the back of the line, since the RFE response has to be processed before the case can proceed. We have had clients come to us when their cases were delayed for over a year due to ineffective RFE responses – such mistakes can be extremely time-consuming.
Step (3) – Consular interview
After the NVC has received all the required documents then a case is set for a visa interview at the appropriate U.S. consulate. Usually this will be in the country where the foreign spouse lives (though not always). The time required to schedule an interview varies substantially from one consulate to another. As a general rule of thumb, however, the interview will be scheduled within a month of NVC approval.
The foreign spouse – but not the U.S. spouse – is required to attend the consular interview. The interviews are generally short, and can last as little as just a few minutes. Virtually any topic is fair game at these interview, which may focus on the marriage or on background issues about the applicant. The consulate may request additional documents if it determines anything is lacking. It may also conduct additional background investigations into the applicant. In somewhat rare cases the applicant may be placed into “administrative processing.” This can involve the consulate sending the case to another agency for a security check, and can take upwards of a year. But fortunately such cases are relatively rare.
If the consulate approves the case then the person is ready to travel to the United States. Following instructions that are issued by the consulate, the individual has to pay a $165 “immigrant fee” which covers the expense of producing their permanent resident (green) card. Technically speaking a visa is only permission to seek entry to the United States, meaning that the border service can deny entry to the person if they are determined to be inadmissible. In the vast majority of cases, however, once a marriage visa has been issued the person will be able to travel successfully to the United States.
Upon entering the United States on a marriage-based visa (IR-1 or CR-1) the person is automatically a lawful permanent resident of the United States. This carries the legal authorization to live and work permanently in the country. As you’ll see below, this automatic status is a difference between marriage-based and fiancé(e) visas, since fiancé(e)s have to file another round of paperwork after arrival. It can take around a month for the spouse’s green card to arrive in the mail, which will be delivered to an address specified by the applicant.
Fiancé(e) visa process
Fiancé(e) visas have their own slew of terminology. Let’s take a quick look:
- I-129F, Petition for Alien Fiancé(e) – Similar to the I-130 petition, a Form I-129F is the initial petition filed by a U.S. citizen for a foreign spouse.
- DS-160 – This is the electronic visa application filed by the fiancé(e) at the second step of the process.
- K-1 – This is the visa designation given to a foreign spouse of a U.S. citizen.
Unlike the three-step marriage-based visa process, fiancé(e) visas are a four-step process. The first step of a fiancé(e) visa is similar to a marriage-based visa, but then the processes become importantly different.
Step (1) – I-129F petition
Like the marriage-based visa process, a fiancé(e) visa process begins with a petition from the U.S. citizen spouse. The I-129F petition is filed with USCIS domestically in the United States. It’s filing fee is currently $340. The I-129F petition is filed with documentation that is generally similar to the I-130 used in marriage cases. Mandatory documentation includes:
- Passport-style photos of both petitioner and foreign national;
- Documentation of name changes, if applicable;
- Proof of the petitioner’s U.S. citizenship;
- Proof of convictions, if applicable, for the petitioner;
- Proof that any prior marriages were ended;
- Documentation of the legitimacy of the relationship;
- Proof the couple has met in person in the past two years;
- Sworn statement of the foreign national’s intention to marry within 90 days of entering the U.S.; and
- If applicable, documentation applicable to International Marriage Brokers.
The last item on that list can pose a challenge for any couple who originally met online. Under a special immigration law, International Marriage Brokers (IMBs) are regulated, and must provide documentation for the couple’s case. What’s an IMB? Basically a dating service aimed at pairing up international couples. The trouble comes with determining what is and isn’t an IMB. Lately it seems like USCIS believes that any sort of online social site qualifies as an IMB. This means that we have to be careful to provide documentation and legal argument showing that the couple did not meet through an IMB. Just one example of the technicalities that can hold up an application.
The current processing time frame for I-129F petitions is about 5 months. That’s currently about the same as the time frame for I-130s. Historically, however, fiancé(e) visas have gone substantially faster than I-130s in marriage-based cases. In recent years marriage petitions were routinely taking over a year. By contrast, we had an I-129 petition last year approved in less than a month. Processing times can change dramatically with no warning.
Step (2) – DS-160 visa application
The second step of the fiancé(e) process looks similar to the marriage-based process, but is importantly different. As with marriage-based cases the fiancé(e) petition is forwarded to the National Visa Center (NVC). But unlike marriage-based cases, the NVC does not collect supporting documents in fiancé(e) cases. This greatly increases the speed with which a case is transferred to a consulate.
In fiancé(e) cases, once the NVC gets the petition file it transfers the case onwards to the appropriate U.S. consulate. When it forwards the case, the NVC sends a notification to the foreign applicant that she needs to file a DS-160 visa application. As with marriage cases this is done online. The current filing fee for the DS-160 is $265.
Step (3) – Consular interview and submission of visa documents.
After the DS-160 is filed online, and application fee set, the applicant will be scheduled for a visa interview at the consulate. Unlike marriage-based cases, supporting documents in fiancé(e) cases do not have to be mailed to the NVC. Instead they are brought to the consulate at the time of the visa interview. This is a huge advantage to the applicant, as it avoids the time-consuming delay caused by NVC document processing. The required documentation includes:
- Passport-style photographs;
- Evidence of the relationship with the U.S. fiancé(e);
- I-134, Affidavit of Support;
- Proof that prior marriages were terminated; and
- Police background certificates for all countries where the foreign spouse has lived.
The financial support document filed at the consular stage of fiancé(e) cases is the I-134 – not the I-864 as filed in marriage based cases. (Though note that the I-864 is required at the fourth step of fiancé(e) cases). The documentation requirements for the I-134 are relatively less rigid than the I-864. For example, filing the I-864 can pose a substantial challenge for someone with a recent job change or irregular income, such as through self-employment. Those challenges are somewhat less concerning in the case of the I-134.
Step (4) – Adjustment of status
The fourth step of the fiancé(e) process is a big distinction from marriage cases. After entering the U.S. on a K-1 fiancé(e) visa, the foreign national has 90 days (3 months) in which to marry her U.S. fiancé(e). If the marriage does not occur within the 90 days then the foreign spouse is supposed to depart the U.S. (There are sometimes secondary strategies that may be pursued, such as a new marriage-based process). After marrying, the couple is required to file an I-485 Application to Adjust Status. Unlike a marriage-based visa, a K-1 fiancé(e) visa holder does not enter the U.S. as a lawful permanent resident. Instead, she has to file the I-485 application in order to gain that status.
The filing fee for the I-485 is a substantial $1,070 (including the biometrics collection fee). Processing times vary somewhat by local jurisdiction, but are currently around 6-8 months. This sounds burdensome, since the fiancé(e) will not have resident status until the I-485 is approved. In reality, though, it is not quite as bad as it seems. At the time the I-485 is filed the applicant may file applications I-765 and I-131 at the same time with no additional cost. Once approved (3-4 months) a temporary “combo card” will be issued to the foreign fiancé(e). This card gives the fiancé(e) work authorization while her green card application is being processed. It also allows her to temporarily travel abroad if needed. This at least reduces the burden of waiting for the I-485 approval.
The I-864, Affidavit of Support must also be filed at this stage of the process. (For the marriage-based visa it is filed at the second step of the process). The requirements for the financial support document are the same as they are in the marriage-based process, it is just that the document is filed later in the process for fiancé(e)s.
After the I-485 application is processed by a central USCIS office it will be forwarded to the USCIS office closest to the couple’s home. In almost all cases the couple will be scheduled for an in-person interview with USCIS. Unlike the consular interview, both spouses have to attend this interview. The interview generally focuses on whether the couple is living together as a genuine married couple. Following a successful interview the green card is issued by a central USCIS facility and mailed to the applicant. This generally happens within 30-40 days following the interview.
Advantages and disadvantages
Having given an overview of the two processes, let’s discuss how you would choose one over another. The primary advantage of the fiancé(e) visa is speed, whereas the advantage of a marriage-based visa is cost savings and a somewhat simpler process. But there are also other factors you will want to consider.
1. Speed – fiancé(e) visa advantage
Generally speaking a fiancé(e) visa is the faster route for getting a foreign parter into the U.S. There are two main reasons for this. First, the I-129F petition is generally processed faster than an I-130 petition. Right now the reported processing times are similar, but historically I-129Fs have been much faster (for example, three months versus one year). Second, with a fiancé(e) visa you avoid having to deal with the National Visa Center (NVC). That is a huge advantage over marriage-based visas. As a rule of thumb, the NVC adds a minimum of two months to the processing time of a case, and can easily add 4-6 months. With a fiancé(e) visa there is no requirement to submit documents to the NVC, so you completely avoid that delay.
2. Cost – marriage-based visa advantage
Recall that marriage-based visas are a three-step process, while there are four steps to a fiancé(e) visa. The last step of the fiancé(e) visa has an associated $1,070 filing fee. There will also be additional costs for that step if you are working with a law firm. But the costs of that fourth step are avoided by going with the marriage-based visa. For most individuals we work with the additional cost is not a substantial factor in their decision. In the context of an expensive process that will last many months and determine the future of a couple’s life, the additional cost is relatively small in comparison to the big picture. Also, if the foreign national is planning to work in the U.S., the fiancé(e) visa will be the fastest route into the U.S. work force, so there could actually be a financial advantage to choosing it over a marriage based visa. But for a couple trying to save all possible out-of-pocket costs, there is an advantage to the marriage-based visa.
3. Marriage timing – fiancé(e) visa advantage (usually)
If you are planning to have a big family wedding it will generally make sense to pursue a fiancé(e) strategy. Why? Let’s say that it’s January and you’re just starting to look at immigration strategies, but you also need to plan the wedding. Even if you get the wedding together in three months, that’s a three-month lead time before you can even start the immigration process if you go with a marriage-based visa, since you have to be married before you can start the process. By contrast, with a fiancé(e) visa you can get the initial petition filed as soon as the paperwork is together, without having to wait on the marriage. Then, over the course of the immigration process, you can plan a formal wedding for after the fiancé(e)’s arrives in the U.S.
Many of our clients avoid this problem altogether by separating the legal marriage and the wedding ceremony. Immigration law only cares if you have a legal marriage, not whether you had a big ceremony. So many of our clients get a “court house marriage” so they can start the immigration process. Then they plan a big ceremony with friends and families for later so they can invest the right amount
Marriage timing can also be an issue if the couple is not living in the same place. If the U.S. citizen spouse is residing in the U.S., marriage will require a trip abroad. That adds significant time and expense before the immigration process can begin. By contrast, with a fiancé(e) visa the U.S. citizen spouse can simply file the petition from home and get the process started. (Remember, though, that the fiancé(e) visa requires that the couple have met in person at least once in the past two years). On top of this, many countries have complex legal formalities for marriage. There may be lengthy waiting periods, and some jurisdictions require the couple to publish notification of the marriage. All of this can be a headache to deal with, all before the immigration process can begin.
4. U.S. citizenship requirement – fiancé(e) visa advantage
A marriage-based visa petition may be filed by either a U.S. citizen or permanent resident. By contrast, a fiancé(e) visa petitioner must be a U.S. citizen. So if the U.S. spouse is a green card holder a marriage-based visa will be the only option available. Note also that the petition will take longer for a green card petitioner than it will for a citizen petitioner. Right now the difference is not too great, but historically it has been.
Note that this problem can sometimes be avoided by having the U.S. spouse apply for citizenship. This can be a timing advantage if marriage-based petitions are backlogged for green card holders. In such a case it may be fastest for the U.S. spouse to apply for citizenship, naturalize, and then file either a fiancé(e) or marriage-based petition. Generally it takes roughly between 4 and 6 months to get a citizenship application approved.
5. Income change for petitioner – fiancé(e) visa advantage
Both marriage-based and fiancé(e) visas require that the U.S. petitioner to file the I-864 financial support contract. This document requires the petitioner to show income at or above 125% of the Federal Poverty Guidelines. As a rule of thumb, the petitioner should have been in his current job for at least 6 months, as the government wants to see a stable financial situation. For the marriage-based visa process the I-864 is filed at step (2) with the National Visa Center (NVC); with a fiancé(e) visa the I-864 is filed at step (4) with USCIS. If the petitioner is anticipating a change of employment, this should be considered in terms of where in the visa process the change will occur. For example, if the petitioner has just changed jobs, the fiancé(e) visa might be advisable, so that the petitioner will have a longer history of employment before the I-864 is required. Note also that the NVC has historically been extremely picky with the I-864 form. Any irregularity in employment in marriage-based visa cases could cause delay at the NVC stage. By contrast, with a fiancé(e) visa at least the foreign national is already in the country when the I-864 is required. Thus, even if USCIS issues a Request for Evidence on the I-864 at least the couple is already together and the delay doesn’t cause further separation.
6. Immigrating children – fiancé(e) visa advantage
If the foreign national has children it is usually a better idea to use a fiancé(e) visa. The children may be included on one fiancé(e) petition. But in a marriage-based visa process a separate I-130 petition has to be filed for each child if the petitioner is a U.S. citizen. A single I-130 may be used of the petitioner is a green card holder.
7. Petitioner lives abroad – fiancé(e) visa advantage
In order to file the I-864, Affidavit of Support the U.S. petitioner needs to be residing in the United States. Technically the person can be in the process of moving to the U.S. But this distinction is not always helpful because the petitioner needs to have an established U.S. income at the time the I-864 is filed. This timing requirement can pose a serious challenge in marriage-based visa cases, where the I-864 is required at the second step of the process. If the U.S. petitioner has been living abroad he will need to re-establish his U.S. residency before this second step. By contrast, with the fiancé(e) visa the I-864 is not required until the fourth and final step of the process. This means that the U.S. petitioner can remain living abroad until the fiancé(e) visa is issued, then travel to the U.S. along with the fiancé(e).
Going through the immigration process is truly a journey, and it’s a long one at that. So before you start walking down a long, long road make sure you’re on the right road! I’ve described the marriage-based and fiancé(e) visa processes above, and described some of the advantages and disadvantages. But remember there is also the whole question of whether you are legally eligible to pursue one or both of these strategies. That is the part of the process where an attorney can be most helpful – *before* you start heading down a particular road.