Is the Fiance’ Visa Worth It?

Is the Fiance’ Visa Worth It?

Marriage, of course, is a big step. It’s theoretically a life time commitment. Most couples don’t get married immediately after meeting each other. In the past the only way a US citizen could bring a partner to the US was to marry them in advance, apply for a green card for the spouse, and the spouse would enter the United States on the green card. That situation changed during the Viet Nam War, when US citizen soldiers wanted to bring their Vietnamese partners to the United States, but the delays in processing were making it the process very difficult for all. Thus, in 1970 Congress passed an amendment to the immigration laws authorizing what became known as the K-1 visa or fiancé visa. https://en.wikipedia.org/wiki/K-1_visa

The fiancé visa allows a US citizen to apply for his fiancé by filing a petition with the United States Citizenship and Immigration Service (USCIS)https://www.uscis.gov/, an agency within the Department of Homeland Security. The main evidence is to show that the couple has met within the past two years and they intend to marry one another within ninety days of the fiancé entry into the United States. Currently, these cases take five to seven months for approval. Once approved the case is transferred to the National Visa Centerhttps://travel.state.gov/content/travel/en/us-visas/immigrate/national-visa-center.html, whichfurther transfers the case to the relevant local US embassy. The foreign fiancé must complete a lengthy on-line form (DS-160), pay the fiancé visa fee – $265, schedule an interview at the embassy and schedule a medical exam prior to the interview. At the interview the fiancé must bring several original documents, such as birth certificate, passport, police background checks, divorce certificate (if relevant), medical exam and an Affidavit of Support – form I-134 from the US citizen.  Assuming no complications, the fiancé can expect the fiancé visa about nine to ten months after the original application. Once the fiancé enters the United States, he/she must marry the US citizen within ninety days or return to their country of origin. After marriage the new spouse can apply for a green card.

Up to this point, the process is pretty straightforward

However, with recent changes and experiences in the US immigration system, once the fiancé enters the US he/she will face very challenging obstacles:

1) Unlike a spouse visa, a fiancé visa does not give the fiancé the ability to work. Rather, once the fiancé enters the US, he/she can apply for work authorization. Work authorization often doesn’t arrive for several months and is only good as long as the fiancé visa is good, which usually expires before the work authorization arrives. Consequently, the fiancé is unable to work for several months after arriving.

2) Unlike the spouse visa which is basically a green card, the fiancé visa is not. Rather, the fiancé must apply for immigration (green card) after marrying in the United States. This involves filing for adjustment of status through the I-485 form, which is more expensive than applying for an immigrant visa overseas. The current fee is $1225, but is expected to increase in the near future. In addition, the new spouse can apply for work authorization at the same time, but again must wait several months before its arrival. This is in contrast to the spouse visa, which permits work upon entering the US. Thus, most entering on a fiancé visa cannot work in the United States for about six months, a significant hardship.

3) Unlike the spouse visa, a fiancé cannot travel outside of the United States. The fiancé visa is a single entry visa, meaning travel outside of the US voids the visa, and the fiancé cannot return. Once the fiancé marries the US citizen, he/she can apply for a travel document with the application for the green card. But again the travel document takes several months to arrive. If the new spouse departs the United States before receiving the travel document, their application for a green card will be voided, and they cannot reenter the US.

4) The most problematic of all issues is the newly fashioned public charge requirement. According to long standing rules, a potential immigrant must show he/she will not become a public charge to the United States. This means that the immigrant must prove that he/she will not access public benefits, such as federal or state welfare programs. Until recently, this burden could be overcome by filing an Affidavit of Support – form I-864 with a US embassy for an immigrant visa or the same form if applying for a green card after marrying in the United States. The Affidavit of Support is a commitment on the part of the US citizen to ensure the immigrant not tap public resources for financial assistance. If the immigrant does so, the US citizen is liable to repay the government for the value of the benefits.

Sometimes it can be difficult to choose between existing immigration options.

Most recently, however, the US government issued new rules, making the public charge requirements much stricter. Now, the Affidavit of Support by the US citizen or even another one by a joint sponsor is not sufficient in itself to prove the immigrant will not become a public charge. If the immigrant applies for a spouse visa through a US embassy abroad, they need to fill out a new form – DS 5540, which requires the immigrant to show levels of education, health conditions, financial resources, age and ability to get health insurance to overcome the public charge requirement. It’s up to the consular officer at the embassy to decide whether the potential immigrant would more likely than not become a public charge.

If, however, the potential immigrant is filing for a green card in the US on the basis of marriage to a US citizen, the burdens and obstacles to show that he/she will not become a public charge are much greater than applying for a spouse visa at one of the US embassies. As an example, the DS-5540 form, which is filled by an intending immigrant in a US embassy is four pages long. The new public charge form – I-944- to be filled by those applying for a green card in the US is eighteen pages long. The following are the kinds of things the applicant must provide as evidence along with the I-944 form:

  • An IRS tax transcript for the most recent tax year, or a Form W-2 or Social

Security Statement if the transcript is unavailable;

  • Credit report(s);
  • Documentation of any untaxed income;
  • Proof of asset-ownership if needed, including a real estate appraisal from a

licensed appraiser;

  • Copies of policy pages for all health insurance policies, or documentation

that applicant has enrolled;

  • Any “documentation that may outweigh any negative factors related to a

medical condition”;

  • Child support orders and/or custody agreement, for any children being

supported who do not reside in the household.

  • Level of English proficiency

In Addition

In the past, if the US citizen sponsor did not have sufficient income to guarantee the immigrant spouse would not become a public charge, then a joint sponsor could be added to meet the burden of avoiding becoming a public charge. But under the new rules, a joint sponsor will be looked upon suspiciously. USCISwill consider the likelihood that the joint sponsorwould actually provide the statutorily-required amount of financial support to thealien, and any other related considerations.

The fiance visa should be chosen only as a last resort

The joint sponsor must show

  1. The sponsor’s annual income, assets, and resources;
  2. The sponsor’s relationship to the applicant, including but not limited to whether the sponsor lives with the alien; and
  3. Whether the sponsor has submitted an affidavit of support with respect to other individuals.

 In other words, having a joint sponsor could be looked upon negatively by the adjudicator in the US.

Finally, a determination is made as to whether the immigrant spouse will likely become a public charge sometime in the future. If the immigrant ever received any public benefits in the past, then this is considered a negative factor for obtaining a green card. The following is a list of public benefits that could prevent the obtaining of a green card:

 Supplemental Security Income (SSI);

  1. Temporary Assistance for Needy Families (TANF);
  2. Any other federal, state or local cash benefit programs (i.e., general assistance);
  3. Supplemental Nutrition Assistance Program (SNAP, i.e., food stamps);
  4. Section 8 Housing Assistance under the Housing Choice Voucher Program;
  5. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);
  6. Medicaid; and
  7. Public Housing under Section 9 of the U.S. Housing Act of 1937.

Conclusion

Obviously, there are some situations in which a couple either cannot or prefers not to marry before filing for immigration to the United States. However, in light of recent events, it’s almost always preferable from an immigration standpoint to marry first and then for the US citizen to apply for a spouse visa/green card for the spouse. The fiancé visa should only be used as a means of last resort. Because either approach has become increasingly complicated, we recommend contacting us to handle your case for you.

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