Is the Fiance’ Visa Worth It?

Is the Fiancé Visa Worth It?

Marriage, of course, is a big step. It’s theoretically a lifetime 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 and 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 Vietnam War when US citizen soldiers wanted to bring their Vietnamese partners to the United States. Still, the delays in processing were making 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.

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 primary 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’s 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 Center, and the case is transferred to the relevant local US embassy. The foreign fiancé must complete a lengthy online form (DS-160), pay the fiancé visa fee – of $265, schedule an interview at the embassy, and schedule a medical exam before the interview. At the interview, the fiancé must bring several original documents, such as a 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 allow the fiancé to work. Instead, 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, a green card, the fiancé visa is not. Instead, 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 soon. In addition, the new spouse can apply for work authorization simultaneously, but it must wait several months before its arrival. This contrasts with 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, which is a significant hardship.

3) Unlike the spouse visa, a fiancé cannot travel outside the United States. The fiancé visa is a single entry visa, meaning travel outside the US voids the visa, and the fiancé cannot return. Once the fiancé marries a 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 that he/she will not become a public charge to the United States. This means 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 by the US citizen to ensure the immigrant does 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 challenging 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 insufficient to prove the immigrant will not become a public charge. Suppose the immigrant applies for a spouse visa through a US embassy abroad. In that case, 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 be more likely than not to become a public charge.

If, however, the potential immigrant is filing for a green card in the US based on marriage to a US citizen, the burdens and obstacles to show that he/she will not become a public charge are much more significant than applying for a spouse visa at one of the US embassies. For example, the DS-5540 form, which is filled out 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 agreements 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. However, a joint sponsor will be looked upon suspiciously under the new rules. USCIS will consider the likelihood that the joint sponsor would provide the statutorily required financial support to the alien 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 to other individuals.

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

Finally, a determination is made as to whether the immigrant spouse will likely become a public charge sometime in the future. If the immigrant has ever received any public benefits, this is considered a negative factor in 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

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 last resort. Because either approach has become increasingly complicated, we recommend contacting us to handle your case.