|Updated: March 21, 2017
The fact that you are reading this article means that you are probably either a US citizen hoping to marry a non-citizen, or a non-US citizen hoping to marry an American citizen. Although we will speak in terms of the non-US citizen being British, this is largely for the sake of convenience, and most of what will follow applies equally to citizens of other countries who are residing here in Britain.
Couples in your situation, who hope to obtain permanent residence (a ‘green card’) for the alien and to move to the US, have three main options. They are:
- K-1 fiancé(e) visa
- I-130 Petition for Alien Relative filed in the US (with or without a K-3 visa)
- I-130 Petition filed in London
In the following brief article we will discuss these three options. Although we hope that the article will be of interest and assistance, it cannot possibly cover all permutations of the law and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should contact a qualified US immigration lawyer.
Following the US Supreme Court decision of June 2013 in US v Windsor, the U.S. Citizenship and Immigration Services (USCIS) announced that it will “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
Visa for Fiancé or Fiancée – K-1 Visa
The K-1 visa allows the non US citizen to move to the United States temporarily to marry a US citizen and then to apply for permanent residence. He or she must marry the US sponsor within 90 days of arrival, at which point the alien spouse may begin the process of adjusting status to that of lawful permanent residence—that is, obtaining a ‘green card.’ The adjustment of status process takes place without the need for the alien spouse to return to the home country for immigrant visa processing.
The first step toward a K-1 visa is the filing by the US citizen of a Form I-129F Petition for Alien Fiancé(e) with the US Citizenship and Immigration Services Dallas Lockbox. Along with the form one must also submit documents to demonstrate compliance with statutory requirements—for example, to prove that you are both free to marry. Upon petition approval--current processing times can be found on the USCIS website --the file is sent to the appropriate US embassy or consulate. This is typically in the country where the alien fiancé(e) lives.
The fiancé(e) then applies for a K-1 visa through a process similar to that utilized for an immigrant visa. This includes a medical examination. If the fiancé(e) has unmarried children under the age of 21 they may apply for K-2 visas to accompany their K-1 parent or to follow to join. Once the K-1 visa is issued the fiancé(e) has six months from the date of the medical examination to use the visa to enter the US. Once he or she does so, the wedding to the sponsor must take place within 90 days. The fiancé(e) is eligible during that 90-day period to apply for employment authorization.
As soon as the marriage has taken place and proof of the marriage has been obtained, the couple can apply in the United States for the alien spouse to be granted lawful permanent resident status. At the same time the application for adjustment of status is filed the alien may apply for employment authorization and advance parole, to authorise employment and travel during the often lengthy adjudication process. Eventually the alien spouse is called to the local USCIS office for an interview and, if all goes well, is approved for permanent resident status.
I-130 Petition (Possibly with K-3 Visa)
This option will appeal to those married couples where the US citizen spouse is living in the US and the alien citizen is still living abroad.
In most cases the US citizen must file the I-130 Petition for Alien Relative with the USCIS Chicago ‘Lockbox.’ Once that petition is approved—as above, current processing times for petitions can be found on the USCIS website—the USCIS will forward the case to the National Visa Center in Portsmouth, New Hampshire. The NVC will ask for further documents, which will include a completed immigrant visa application, a variety of civil documents, affidavit of support, and the requisite application and issuance fees. Once the NVC’s adjudicators are satisfied that all requirements have been met, the Center will forward the file to the appropriate US embassy or consulate abroad. The alien spouse will then be notified of the interview date and instructed as to how to obtain the required medical examination in advance of the interview. At the interview, if all goes well, the alien spouse will surrender his or her passport for issuance of the immigrant visa.
The immigrant visa is valid for six months from the date of the medical examination and permits one entry. Once the alien spouse uses the visa to enter the United States he or she is processed at the port of entry and, in the absence of any last-minute difficulties, is granted lawful permanent resident status and is authorized to accept employment without further permission.
K-3 Visa? Yes or No?
Whilst awaiting adjudication of the I-130 and subsequent immigrant visa processing abroad travel to the US may be inadvisable and should not be contemplated without first obtaining legal advice. Sometimes lengthy processing times for I-130 petitions filed in the US may mean couples are faced with the unattractive prospect of being separated for long periods of time. The K-3 visa was created for expressly this situation—but unfortunately it is rarely a useful option.
A K-3 visa allows the spouse of a US citizen to travel to the United States and wait there to complete the immigration process. K-4 visas are available to the alien spouse’s unmarried children under the age of 21. The US citizen must first file one or more I-130 Petition for Alien Relative–one for the spouse and one for each of the spouse’s unmarried children under the age of 21. Once the necessary petition has been filed the US citizen may then file a second petition for the K-3 and, where needed, K-4 visas. Rather confusingly, the petition form used for the K-3 and K-4 visas is the same one used to sponsor a fiancé(e), the I-129F.
When the I-129F has been approved, the subsequent processing depends upon whether the marriage took place inside or outside of the United States. If the marriage took place outside the US, the spouse and any qualifying children must apply for their visas at the US embassy or consulate in the foreign country where the marriage took place or, if there is no consular post in that country, at a post designated by the Deputy Assistant Secretary of State for Visa Services. If the marriage took place in the United States, the visa applications must be filed in the applicants’ country of nationality or last foreign residence. Once the spouse and any qualifying children receive their K-3 and K-4 visas, they may travel to the US and complete there the process of obtaining permanent resident status. Employment authorization incident to status is available for K-3 spouses upon admission to the US but not for K-4 children.
The utility of the K-3 visa was greatly reduced by the Department of State’s announcement, effective February 1, 2010, that in cases where the NVC has been notified of the approvals of both a K-3 petition (the I-129F) and an immigrant visa petition (the I-130) for an applicant, or where the USCIS has approved the I-130 before the I-129F, the applicant must proceed with the immigrant visa only. The Department of Homeland Security, of which the USCIS is a part, has concurred in this refusal to process K-3 applications when the beneficiary/applicant has been approved for immigrant status—even though the grant of an immigrant visa may be months away. For further discussion on this topic, see our article The K-3 Visa: Not Really an Option.
I-130 Petition and Immigrant Visa in London
If the US citizen is resident in the United Kingdom, the process of obtaining an immigrant visa for the alien spouse may be completed in the UK, without the involvement of the National Visa Center or a US-based office of the USCIS. This generally results in huge savings of time over the Stateside alternative. For a detailed description of the process, please see our article I Married an Alien, Get Us Out of Here: Immigrant Visas for Spouses of US Citizens Living in the United Kingdom.