K-1 vs. Immigrant Visa after marriage

Suppose you are a US citizen and you want to bring your fiance to the United States. What’s the better way to do it–a K-1 fiance visa, or an immigrant visa after getting married abroad?

The K-1 would seem the logical choice. After all, Congress created it for a purpose. It can save 1-2 months of processing time, so it may be the best option when your only goal is to get your fiance to the United States as soon as possible. This is especially true when you may have difficulty meeting up with your fiance overseas to get married. However, the K-1 has a couple of downsides.

First, with the K-1, you have to file additional papers for the green card after getting married in the United States. This adds another $1,070 in filing fees (and probably more in attorney fees), and creates a delay of six months or so until the green card is granted. By contrast, a person with an immigrant visa becomes a permanent resident on arrival, with no extra paperwork involved.

Second, an immigrant can begin to work as soon as she arrives in the United States. A K-1 visa holder can also work upon arrival, using the I-94 card, but that is only valid for the first 90 days. After that period, the K-1 visa holder has to apply for an employment authorization document. The EAD can take up to three months to process, which could lead to a gap in employment authorization, depending on when you file. You also have the filing fee for the EAD, which is $380 at the time of this posting.

For these reasons, the immigrant visa process after marriage often makes the most sense. This will probably remain true as long as USCIS processes I-129F K-1 petitions  and I-130 immigrant visa petitions in the same time frame (which you can check at USCIS processing times).

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Do I need a lawyer for my immigration process?

This a great question, especially to ask a lawyer. The answer you get may reflect more on the attorney’s need for your business than on your well-being. Nevertheless, let me take a shot at a somewhat more objective response.

In immigration cases, lawyers provide the following benefits:

  1. In-depth knowledge of the law. A lawyer will likely spot problem issues that the average person would not, as well as be aware of requirements that are not obvious. In addition, some issues are just plain difficult to understand without a legal background and a knowledge of immigration law as a whole.
  2. Familiarity with the process. An attorney who has been through the same process before will be able to set realistic expectations for you, alert you to when the process seems off track, and provide a sense of confidence as to the success of the case.
  3. Organizational skills. Getting all the evidence together and presenting it in an effective manner is not always easy to do on your own.
  4. Advocacy skills. If something does go wrong, a lawyer who understands the law and the process is more likely to be able to help you save the case.
  5. Savings in time. Regardless of the type of case, it takes a lot of time to read and understand the relevant instructions and regulations, complete the paperwork correctly, and organize the supporting documents.
  6. Administrative back up. Your lawyer will be receiving duplicates of all the notices from USCIS, to be able to confirm with you that you receive them and are aware of important dates.

Supposing you have a squeaky-clean case, are good at following instructions, are well organized, have extra time, and feel confident in preparing the documents and presenting yourself, then by all means, go for it. In an ideal world, attorneys would not be needed for immigration–or other legal–processes.

Even so, you should be prepared for notices getting lost in the mail, or getting an officer who is grumpy or doesn’t understand an important provision of the law. Those things happen occasionally. Many times, they are not fatal to an application, but they can add a lot of delay and frustration.

My advice, when asked the title question, is normally for you to look over the documents and measure your own comfort level. For comparison, I used to do my own tax returns, but eventually they became a little too complicated and a little too time consuming to be worth it. If you are still not sure what to do after looking over the process carefully, then talk to a lawyer for more information.

P.S. If you are close to hiring  an immigration lawyer but need a little nudge, try googling “US immigration horror stories“.

 

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Evidence of Good Faith Marriage

For both the marriage adjustment interview and the I-751 petition to remove the conditions on your permanent residence, you need to show that you have a bona fide marriage, that is, that  you married in good faith. In both cases, USCIS wants to see that you and your spouse reside together, share finances, and spend time together.

Specifically, you want to provide:

  • Birth certificates of any children born from the relationship
  • Federal taxes and W-2s*
  • Insurance policies together (health, auto, life, etc.)
  • Retirement account summaries naming your spouse as a beneficiary
  • Bank and credit accounts in common
  • Lease or mortgage together
  • Titles to joint property
  • Joint loan statements
  • Boarding passes and itineraries from trips taken together
  • Utility bills
  • Other correspondence to both of you
  • Photos together, especially with friends and family
  • Affidavits from people with first-hand knowledge of the relationship

For bank and other statements, you don’t need to provide one for every month since you met, but it is good to have a range of dates that show how long you have been together.

When you first get married, you may not have a lot of these items. USCIS understands that. When you get to the I-751 petition, however, the standard for evidence goes up.

Hint: If you don’t keep records as a matter of habit, it is a good idea to make a folder just for the bona fides. Every few months, throw in some old bills and letters to show you are living together. At the end of two years, you should have more than enough to prove that you have a real marriage to USCIS.

* preferably with status as “married”!

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I-94 vs. Visa

What’s the difference between an I-94 card and a visa?

The I-94 is the little piece of paper given to people on entry. It usually has printed on it the date you entered, the type of status you have, and the date that status (or “stay”) expires.

The visa is issued by a US consulate and is stamped into your passport. It controls only your entry into the United States, not your stay.

It is not uncommon to be given a stay that exceeds your visa. You could enter on the last day of your visa and still receive a stay for several months or more.

By the same token, if you have a visa that is good for ten years (common for a B-2), that doesn’t mean you are still in status once the I-94 expires.

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