GC for Spouses and Fiances of USC

Posted on July 18, 2006 by Warren Wen | Category: Immigration

Green Card Application for Spouses and Fiances of US Citizens

Mr. Wang asked:
I am an American citizen, and I have a girlfriend in China.  We have known each other for quite a while and we are getting along pretty well.  We plan to get married, and I want to bring her to the United States.  Is it better for her to apply for a fiancé visa or a spouse visa?

Generally, there are three ways for U.S. citizens to apply for their fiancé or spouse to come to the United States:

1.    K-1 Visa (Fiancé Visa): A K-1 visa allows a U.S. citizen to apply for the fiancé to come to the United States, and have a marriage within 90 days of entering the United States.  The U.S. citizen can then apply for a green card to adjust the fiancé’s status.  This kind of visa is fast and simple to obtain.  Once the U.S. citizen submits the K-1 visa application, the fiancé can obtain a visa from the U.S. embassy or consulate abroad upon the approval of the application.  Generally speaking, it takes six to nine months to process this type of visa.

The advantage of the K-1 visa is that the waiting time abroad is relatively short.  On the other hand, the disadvantage is that the U.S. citizen’s spouse needs to apply for the green card after he has married with his fiancé in the United States.  Until the marriage takes place, the fiancé is considered a nonimmigrant.  If the U.S. citizen and the fiancé are not married within 90 days of the fiancé’s arrival to the United States, she becomes illegal and would have to leave the United States.  She cannot marry a different U.S. citizen other than the one who has filed the K-1 visa for her.  There is no extension for a K-1 visa, and the K-1 visa cannot be changed to any other nonimmigrant visa.

2.    Immigration visa: A U.S. citizen may apply for an immigration visa for his spouse overseas by filing an I-130 petition.  According to immigration law, a spouse is defined as a lawful husband or wife.  In order to successfully petition for an immigrant visa for the spouse, the relationship with the spouse must be established and the spouse must be admissible to the United States under immigration law.

Once the I-130 petition is approved, the spouse will be asked to go to the local U.S. embassy or the consulate to complete the processing for an immigrant visa.  After successfully completing the process, an immigration visa will be issued to the spouse.  She will also be issued a green card upon her entry into the United States.  The advantage of an I-130 petition is that when the spouse comes to the U.S. she will already have a green card issued to her.  The disadvantage of this visa is that the spouse has to wait overseas for two to three years while the application is being processed.

3.    K-3 Visa:    A U.S. citizen who is married and whose spouse is overseas can first file an I-130 petition if he wants his spouse to come to the U.S. as soon as possible.  Once he has the I-130 receipt, he can file an I-129 petition for his spouse.  In this way, the spouse can come to the U.S. quicker with K-3 visa.  This visa allows the spouse to come to the United States and complete the processing for the green card while staying in the United States.

It must be noted that the permanent resident status given to the spouse will be conditional if it is based on a marriage that has lasted less than two years from the day she was given the permanent resident status.  Both the U.S. citizen and the spouse must apply together to file a petition to remove the conditions before two years of conditional permanent residency allowed to the spouse are over.  The petition may be filed as early as 90 days prior to the expiration of the conditional permanent residency.  If the petition is not applied to remove the conditions in time, the spouse can lose her conditional resident status and be removed from the country.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.