Considerations for U.S. Citizens in Sponsoring Their Fiancé or Spouse: The K-1, K-3, and Immigrant Visa Options
Written by Elizabeth Walder Esq. and Steve Piraka, Esq.
One of the challenges for U.S. citizens who have a foreign born spouse or fiancé currently living abroad is how best to bring them over to the United States. There are three primary visa classifications typically used for this process and each has its own set of advantages and disadvantages.
As a U.S. citizen, the first way you may proceed is to file a nonimmigrant petition for your fiancé. This visa classification is called “K-1” and the process is initiated by first filing Form I-129F, Petition for Alien Fiancé, with the United States Citizenship and Immigration Services (“USCIS”). One of the main advantages of filing the K-1 petition is that it allows for a period of time after entry for your fiancé and you to see whether marriage and life together in the United States is viable. After your fiancé enters the U.S. on the K-1 visa, 90 days are given for you to get married. This gives at least some time to make a determination as to your compatibility. If you decide that you are not compatible and you do not marry within the 90 day timeframe, your fiancé must return to his or her home country and will not have the option of extending or switching to another status while in the U.S.
As someone who has already met your fiancé in the past, has not yet married, and now wants to bring him or her over as soon as possible, there is yet another advantage of filing the K-1 petition. If it appears that it may be a long period of time before you can make another trip abroad for the purpose of getting married to your fiancé, the K-1 petition may be your best option; this is because it can be filed at any time, rather than having to first marry abroad and then subsequently file the immigrant or K-3 visa petitions (both of which can only be filed after marriage).
Although there are a number of advantages to filing the K-1 petition on behalf of your fiancé, there are also some disadvantages; most significantly, there is an additional step required of having to file an adjustment of status application after entering on the K-1 visa and subsequently marrying. This extra step costs time and money for such things as preparation of documents, filing and legal fees, medical exam report fees, and the time it will take after filing to be fingerprinted and interviewed.
Other disadvantages to filing the K-1 petition include the fact that marriage must take place within 90 days after entry and that marriage cannot take place in the time between filing the K-1 petition and entering on the K-1 visa. The rigid timing constraints this visa classification presents can cause problems, especially if you or your fiancé need more time to prepare for the marriage ceremony. Note that in spite of the requirement to marry within 90 days of your fiancé’s entry to the U.S., the USCIS does process and approve adjustment applications for couples who have married significantly more than 90 days after the K-1’s entry as long as the adjustment applicant marries the original K-1 petitioner.
The second way to bring your “significant other” over is to file directly for an immigrant visa for your spouse (whom you will have married either in the U.S. on a prior visit by your spouse, or abroad on a visit by yourself) by filing an I-130, Petition for Alien Relative. The main advantage to this type of filing is that once an immigrant visa is obtained abroad, your spouse may then enter as a permanent resident (or as a Conditional Permanent Resident if married less than two years) and will not have to take the additional step of filing an application for adjustment of status after entry, thus saving both time and money.
The disadvantages of this approach include the fact that you must already be married to each other (which may not have been possible before), that you do not have time to know whether or not you and your spouse are compatible before bringing her over (primarily a potential problem when marriages are arranged), and that it usually takes a longer period of time for the application to be processed than it does for either the K-1 or K-3 visas.
The third way of bringing him or her over is to file a nonimmigrant petition for your spouse. For this, the “K-3” option, you file both an I-130, Petition for Alien Relative and a Form I-129F, Petition for Alien Fiancé. The main advantage of this approach is that because the K-3 nonimmigrant option, and the immigrant visa option both require the I-130 filing, you will have the flexibility to later decide whether to continue with the K-3 or immigrant visa option depending on several factors, including which petition is approved first, how quickly you would like to bring your spouse over, and whether or not the difference in processing times between the immigrant visa or K-3 petitions outweigh whether you or your spouse is willing to take the extra step of filing an adjustment application after entry.
Note that if your fiancé or spouse has children whom they wish to bring over at the same time as their entry to the U.S., then typically the K-1 or K-3 options are stronger than the immigrant visa option, especially if the I-130 processing times are delayed. But entering on the K-3 visa requires the additional step of applying for adjustment of status after your spouse has entered the U.S., costing time and money.