Category Archives: Fiance Visa

Adjustment of Status, Applying for a Visa, Fiance Visa, Green Cards, Of Interest

What is Conditional Residence and Who Gets It?

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Marriage fraud is a major problem in US immigration.  There is no shortage of people who are willing to pay someone to pretend to be a spouse so that the first person can obtain US resident status.  There are significant penalties for marriage fraud — ranging from denial of all benefits under immigration law, fines and jail time.  However, unfortunately, people do it regularly.

I see cases in the court records about people who were determined by the USCIS to have committed marriage fraud.  I have had potential clients come to me whom I had to turn away because there is no legal way to help them; they paid someone to marry them in the past and now they are legitimately married and cannot legally file for a green card.  I have had people come to me who have been accused by the USCIS of faking marriage in order to get a green card.

Concerned about this issue, many years ago Congress created “conditional residence”.   Conditional residence is really regular lawful permanent residence, but it is only valid for two years.  Every person who is immigrating as a spouse receives conditional residence if they get their green card less than two years after the date of their marriage.  If they get their green card on or after the second anniversary of their marriage, they get regular lawful permanent residence and get a green card which is valid for ten years.  But if they get their green card in those first two years, they only get a two year card.

I keep saying “get their green card”.   Technically, the deciding date is when they enter the US on an immigrant visa or when they get approved for adjustment of status.  It is that date which determines whether or not their lawful permanent residence is conditional.   At the consulate, after the interview, an immigrant only gets an immigrant visa.   He doesn’t get residence status until he enters the US with the immigrant visa.   An immigrant going through adjustment of status here in the US obtains permanent resident status when the application is approved — which could be with or without an interview.  In either case, the green card (regular or conditional) then comes in the mail.

If a person gets a conditional green card, in the 90 days before the card expires, he has to file a special petition with the USCIS requesting them to approve the removal of the conditions.    To make it simple, I tell people that they are filing for their ten-year card.  But in actuality, they are requesting the removal of the conditions on their permanent residence.   The ten year card is issued as a result of the removal of the conditions.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Applying for a Visa, Fiance Visa, Green Cards

Comparing and Contrasting the Fiance Visa, the Spousal Immigration Visa and the K-3 visa

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There are three legal immigration options for a person, living abroad, who is engaged to a U.S. citizen.   If the person, living abroad, is married to a U.S. citizen, there are two legal options.  The two legal options are the spousal visa consular process or the K-3 process.  The fiancé, contemplating marriage, has the option of using the fiancé visa process or getting married and choosing one of the other two options that I just listed as being available to a married person.  All three of these options have been discussed in posts during the last couple of months.  For both the fiancé and the spouse, there is the option of entering as a tourist (and getting married if you are a fiancé) and applying for adjustment of status.  However, I do not recommend this route because it is illegal.  I discussed this option three weeks ago.

All three options have benefits and drawbacks.   The main drawback for the fiancé and K-3 routes is that they cost about $1,000 more in filing fees and costs.   The attorney fees are usually more too, because they are more complicated.  The main drawback for the spousal visa consular process is that it is slower — usually at least two or three months slower.

The main benefit for the fiancé route is that it usually is quicker in getting the fiancé to the U.S..   It is usually at least two to three months quicker.   More importantly, when a client is talking to me, and they are engaged, they can file right away.   If they decide to wait until they are married, and file the spousal visa consular process, not only is that route slower, they can’t start it until they are married, which could add another two or three months to the time differential.

There are two main drawbacks with the fiancé petition route.  As mentioned above, the entire process is at least $1,000 more expensive in costs and filing fees (without counting additional attorney fees).   The other drawback is that while the fiancé gets to the U.S. more quickly, she doesn’t get her green card at that point.  Once she gets married, she can file for Adjustment of Status to get her green card, but that process could take another year or more.   She can stay here in the U.S. legally while that process runs its course.   She will most likely be able to work during most of that time (she will need to file for employment authorization), and she will be able to get travel permission eventually, but it is still an expensive and long wait for the green card.

The K-3 process is very similar to the fiancé process.  It is more expensive but quicker than the spousal visa consular process, and, once in the U.S. the alien spouse will need to file for Adjustment of Status.  The other difference in the K-3 process is that the Department of State, fo some reason, does not like this process.  As stated in a recent post, the Department of Stats will often refuse to do the K-3 process and instead require the applicant to go through the regular spousal visa consular process.

The spousal visa consular process has the benefit of being simpler and cheaper and, once the foreign spouse has arrived in the US, she immediately receives her Lawful Permanent Resident status and can almost immediately start to work and travel.  The drawback is that it is slower.   I have been telling people to expect a ten to sixteen month process, and it may currently be taking longer.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Adjustment of Status, Applying for a Visa, Fiance Visa, Green Cards

The Fiance Visa Process

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The Finace Visa process is a way that that Congress set up to facilitate the immigration of fiances of U.S. citizens.    This is only for people who are engaged to be married and intend to be married and who will not marry until the foreign fiancé has arrived in the US.  Once the foreign fiance arrives in the United States, they must get married within 90 days.  I know of people, thinking to help their case along, who got married while they were waiting for the visa to come, and as a result had to start all over with a spousal visa — which causes a major delay.

As I stated above, the fiancé visa is only for fiances of U.S. citizens.  A green card holder cannot use this route to bring a fiancé to the US.  Both parties have to be unmarried from the start of the process (i.e., someone can’t file this if they are still married and waiting a divorce).   They have to remain unmarried until the fiancé visa is processed, the foreign fiancé has had her interview, received her visa and has entered the U.S.   They then absolutely need to get married within 90 days of arrival in the U.S.

Another requirement for the visa is that you need to establish that you have met in person within the two years immediately preceding the filing of the visa petition.   They will not accept pictures alone as proof of this meeting.  They want additional evidence like passport stamps or flight itineraries.

The process is started when the U.S. Citizen fiancé files a fiancé petition with the USCIS requesting the approval of a fiancé visa.  The USCIS processes the petition and upon approval, sends it to the Department of State.  That first step usually takes between three and six months, but it can take longer.   Once the Department of State gets the petition, they send it to the appropriate consulate or embassy.

Once the consulate receives the petition, they notify the applicant that it is time for them to start gathering the relevant evidence — birth and police certificates and proof of financial sponsorship and relationship evidence and a medical examination.  At this point, the foreign fiancé also pays the fiancé visa application fee.  Once they have all this completed, the applicant notifies the consulate and schedules an appointment.   This process usually goes quite quickly.

At the interview, the fiancé will be examined mostly regarding her relationship with the US fiancé, although they may look at other issues as well.   I had one fiancé applicant, long ago, who listened to the other people in the waiting room and told the examiner that she was going to get together with her fiancé to see if she wanted to marry him.   The examiner rejected her because she needs to intend to get married in order to get this visa.

Once the visa is issued, the fiancé has six months to enter the U.S.   Then, as stated above, they need to get married within 90 days.  And then the challenging part of the process begins.

Up to this point, the foreign fiancé only has a K (fiancé) visa.   She does not yet have a green card.   Once she is married, she then files an application for adjustment of status to apply for the green card.   Two weeks ago I wrote about the process for filing for adjustment of status.  I won’t repeat that here.  It is all the same except that you do not need to file a spousal immigrant petition — the approved fiancé petition takes the place of the spousal immigrant petition.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong