K-1 FIANCEE VISA VS. K-3 SPOUSAL VISA: PROS AND CONS

One of the most frequently asked questions from the American gentlemen who seek to court an International Lady is: "Which is the better or golden way to do this?" Sometimes, people mean "Which is the faster or more efficient way?" "Can we mix and match these visas and do it faster?"

In actuality, there is no "better" or "faster" or "more efficient" way to do it, and no way to "mix and match". No matter what you do, it will take time, money and patience. It really comes down to which is the better way for you and your lady under your particular circumstances. In other words, the better question to ask is: "What are the pros and cons (or advantages and disadvantages) of pursuing a K-1 Fiancee Visa vs. a K-3 Spousal Visa for my lady, and in light of that, which way suits us better?"

FACTORS TO CONSIDER IN THE PROCESS

SPEED

COST

EASE AND CONVENIENCE
IN SUCH THINGS AS GATHERING DOCUMENTS

THE RISK OF POTENTIAL MISTAKES AND THINGS GOING WRONG IN THE PROCESS

THE LADY'S DESIRE , IN MANY CASES, TO MARRY IN FRONT OF HER FAMILY IN HER COUNTRY

"DCF" CONSIDERATION:
DOES THE U.S. CONSULATE IN HER COUNTRY DO DIRECT CONSULAR FILING
OF THE SPOUSAL VISA PETITION, WHICH MEANS PROCESSING OF SPOUSAL
VISA PETITION WILL GO FASTER THAN NORMAL?
(FOR EXAMPLE, NO DCF IN COLOMBIA & PERU, YES DCF IN BRAZIL)

FUTURE IMMIGRATION ISSUES
SUCH AS WILL YOU NEED TO FILE FOR A GREEN CARD
FOR HER LATER AND HOW SOON WILL SHE BE ABLE
TO SECURE U.S. CITIZENSHIP AND THUS SPONSOR HER
IMMEDIATE RELATIVES TO THE U.S. ON A RESIDENT VISA

One question to ask is: Are we both ready to conduct and conclude a marriage in the lady's home country? This is because the Spousal Visa first requires that a marriage be accomplished. A second question to ask is: Which country does my lady call home? This will determine which U.S. Embassy will be called upon to issue the visa. This is important because all Embassies follow the same procedure for the Fiancee Visa, but they can differ vastly with regards to processing the Spousal Visa. And in some Embassies, Direct Consular Filing (DCF) which is a"fast track" method to file the Petition I-130 directly and secure a full resident Spousal Visa is possible, thus making an argument in those locations for doing the Spousal Visa over Fiancee Visa.

U.S. Embassies in certain countries, such as BRAZIL, allow this "fast track" method of processing (even if U.S. Citizen gentlemen is NOT a "legal resident" of the lady's country). Meanwhile other U.S. Embassies, in countries such as VENEZUELA AND COLOMBIA, do NOT allow expedited DCF processing. (Many of these non-DCF Embassies may only allow processing at their Embassy if the American Citizen gentleman first secures "legal residency" in his lady's home country, often not easily or quickly possible for many gentlemen.) For a List of U.S. Consulates in Countries Which Allow Direct Consular Filing and Those Which Do Not, see: DCF Countries.

In cases where the U.S. Citizen gentleman does not have the option of DCF, he must follow the traditional method which is to return home and file the Petition I-130 in the U.S. Immigration Service offices called "U.S. Filing". The U.S. Filing method usually takes much longer to process, sometimes six (6) to eight (8) months or even longer. Under the Legal Immigration and Family Equity Act (LIFE), December 21, 2000, U.S. Citizens were allowed the option to secure a temporary 24 month visa for the lady spouse called "K-3 Spousal Visa". This visa which is intended to process more quickly can be used to permit the lady to enter the U.S. and unite with her U.S. Citizen husband while waiting for final approval of the Petition I-130.

Here is a visual breakdown of the various principal advantages and disadvantages of the K-1 Fiancee Visa vs. the K-3 Spousal Visa at the U.S. Embassies.

U.S. IMMIGRATION AND EMBASSY PROCESSING
K-1 FIANCEE VISA
ADVANTAGES
1. You don't need to marry immediately in your lady's country or the U.S. You bring your lady to the U.S. as your fiancee, and you and your fiancee secure a 90 day courtship window to marry. This allows you both a greater opportunity to know each other and make a better decision about marriage, which for most people is a very important life decision.

2. You deal nearly exclusively with the U.S. immigration system and U.S. immigration officials here at home and the U.S. Embassy in your lady's country. You largely avoid dealing with sometimes archane and cumbersome legal rules for marriage and immigration in a foreign language, and with foreign bureaucrats, lawyers and others.

3. You are dealing with one principal point of contact and focus - your English-speaking attorney or immigration consultant, if you use one.

4. In general, less volume of supporting documentation needed, and officials are less picky with the documents than the other way (local marriage and spousal visa). Because of this, many people feel that this is "cleaner and simplier" method that local marriage and spousal visa.

5. Budgetary costs to accomplish local marriage are usually more manageable, subject to prevailing currency exchange rates. Legal Costs and Filing Fees with U.S. Immigration and Consulate are also usually less.

6. Allows both of you the option, subject to the filing and approval of I-131 Travel Authorization, to return to the bride's home country for a "show" or fictitious wedding for the benefit of her family and friends.

DISADVANTAGES
1. You need to make a strong effort to convince your lady and her family that your intentions regarding the fiancee visa are sincere and honorable. This is because most ladies and their families in these foreign countries are quite conservative and the fiancee visa means that you will be taking her away from her home on a mere promise of future marriage.

2. This visa takes BEST SPEED MINIMUM four to six months processing time, sometimes longer. Many administrative factors which cannot be controlled tend to unduly affect processing time, and currently, because of intensive mandatory security checks and immigration changes, it is taking longer than shorter. You and your lady will be separated and probably quite anxious during this wait time.

3. Valid for only one entry by your lady into the U.S. She cannot travel freely back and forth out of the country which restricts honeymoons, any travel by her back home, etc. A travel petition or Petition for Advance Parole can be filed for her but will usually take 100-125 days for approval processing.

4. Her close family and friends will NOT see her get married in the U.S. with you unless these other people each also have another type of visa such as a tourist visa in their own right. Some ladies and families may feel that they may be deprived of a once-in-a-lifetime opportunity to wed with family and friends in her home country.

5. Future post-marriage immigration work and issues will need to be addressed, thus there will be future filing fees and costs. For example, after marriage in the U.S., you will need to file a Application for Adjustment of Status for your lady to secure legal residency which could take from six to twenty four months processing time depending on where you live. This time period would have the effect of extending the time needed for her to eventually secure U.S. Citizenship (if she otherwise would qualify), as compared with the Resident Visa Spousal Visa method, if that is available to you in your case.

6. Such time periods would also have the effect of pushing ahead the time when, as a U.S. Citizen, she can sponsor close family members, such as parents and siblings, to the U.S., or secure a U.S. Passport or vote in political elections.

K-3 SPOUSAL VISA
ADVANTAGES
1. Since this visa first requires that you marry your lady in her home country, you are both together immediately and continuously. Her family and friends see and experience your lady getting married. For some ladies and families, the wedding day is a once-in-a-lifetime opportunity which they do not wish to lose.

2. Speed [but only for DCF-secured resident Spousal Visa, not K-3 Spousal Visa]- Local Marriage in a foreign country can be accomplished in one to two days (however, the preparation time for gathering properly stamped documents, premarriage visas, etc. may take on average 30-45 days or more.) After marriage, the follow-up K-3 Spousal Visa process will typically take longer, at least about six (6) months or more. EXCEPTION: If DCF at U.S. Consulate in her home country (such as Brazil) is available to you to secure a resident Spousal Visa, speed will be a tremendous advantage. Best processing speed at some DCF Consulates, assuming proper documents and no complications, is six (6) to eight (8) business weeks. Other DCF Consulates will require up to twelve (12) to sixteen (16) weeks or more.

3. A Spousal Visa (legal resident immigrant version through a DCF Consulate, or a K-3 Spousal Visa through a Non-DCF Consulate), will allow your lady to freely travel back and forth into and out of the U.S. immediately, thus allowing her to see her family back home and adjust better emotionally.

4. If you are eligible for a Spousal Visa legal residency through a DCF Consulate, your lady gains U.S. legal residency immediately (albiet conditional), and future immigration work is substantially reduced. There is no need to file for example the Adjustment of Status Application and wait six to twenty four months during which time your lady cannot travel freely without a travel petition also being filed and processed.

5. This time savings has the effect of allowing you to petition for your lady's permanent legal residency (non-conditional) that much faster (as well as for her subsequent U.S. Citizenship if she otherwise qualifies). Thus, she will be able as U.S. Citizen to sponsor other close family members such as parents and siblings that much faster, as well as secure a U.S. Passport and vote in political elections.

DISADVANTAGES
1. Since you must marry in a civil or church ceremony in a foriegn country, you are forced to deal with sometimes archane, cumbersome and difficult rules of local marriage and family law which may not even remotely resemble U.S. law.

2. Extensive supporting documentation is usually necessary of a U.S. Citizen to accomplish a marriage with a native lady of a foreign country. Further, as compared with the finacee visa, you need to show more documention is support of the applicable Affidavit of Support. You will probably need more lead time to prepare. For example, most (but not all) public notaries in the country of Colombia require a U.S. Citizen to secure a "pre-marriage visa" in your American passport to marry a Colombian lady under Colombia Decree Nos.2668/88 and 1556/89. This usually requires a visit to the local Colombian Consulate to fill out an application, obtain stamping of various documents and make payment of various fees and costs, though some Consulates will allow you do this by mail or courier service.

3. You will likely deal with a variety of foreign-speaking officials and authorities, who speak English only as a second language and are sometimes motivated by unexpected surcharges and fees which may add to your expenses and aggravation. They will probably also be difficult to communicate with on technical issues such as securing legal documents and asking whether they are in proper form, and so on.

4. The process is very document-sensitive which means that if you are missing a critical document for marriage or the visa, you may need to travel back to her home town or the even return to the U.S. to retrieve that document before you will succeed.

5. The marriage and spousal visa process can sometimes require that the U.S. gentleman stay in her home country for a minimum time, which many cannot do because of work and family obligations at home. The process also requires proper execution, and anticipating and avoiding potential complications.

6. Cost - Some say that expenses will quickly mount for a foreign country marriage added to various Embassy visa processing charges and fees. Some gentlemen return from their marriage trip saying that the process was more complicated than anticipated and more expensive than budgeted for. (CAVEAT: Some people take the opposite view. Namely, that in the U.S. a wedding can cost average $20,000, and thus it is more economical to do it overseas, and that the marriage ceremony overseas means something unique and special to the lady and family and creates a lifetime of memories.)

E-Mail:garybala@VISA-Attorney.com


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Gary G. Bala, USA Immigration Attorney.