While U.S. citizens can file a special petition, the I-129F for their foreign fiancé in the K-1 non-immigrant visa category, green card holders cannot. There is no visa available for LPRs to petition for their fiancé who is living abroad. The couple needs to be married for this to be a possibility.
This brings to mind an important decision that some couples might face if they are looking to both reside together in the United States:
Option 1: Wait until the green card holding spouse in the U.S. becomes a U.S. citizen, via the N-400 application, and then file for a K-1 visa for the fiancé living abroad.
Option 2: Have the fiancé who is living abroad travel to the U.S. on a tourist visa and get married. Then, as the rightful spouse with a marriage certificate, start the process of filing an I-130 Petition for consular processing.
Both options present a dilemma in terms of wait times as well as discretion, but this post is dedicated to understanding which option might be better based on particular circumstances.
How Long has your Spouse been a green card holder?
Couples need to do a review for whichever partner is living in the United States already as a green card holder. How long has that partner been living in the U.S. for? Did they just receive a green card? How far along are they on their N-400 application? Is there any indication that their N-400 might be denied, to the best of their knowledge?
If there is reason to believe that your partner might have their N-400 application rejected, or that an RFE is possible, thus extending the adjudication period, couples may be better off having their spouse travel to the United States on a tourist visa, and getting married that way. But this does not guaranteed lesser wait times. For example, according to most immigration lawyers, the standard wait times for a green card holder petitioning for their foreign spouse are as follows:
- Establishing the marriage relationship, 11-15 months
- Waiting for green card availability via the State Department visa bulletin. Can vary depending on nationality. Feb. 2021 is “Current” for all nationalities.
- NVC Application and Consular processing, 3-5 months
- Interview and decision, 3-4 weeks
In addition, there is no rule prohibiting couples from getting married on a tourist visa. However, an immigrant who has been approved for a tourist visa has to return to their home country after 180 days, and cannot take up residence on the visa (doing so could lead to inadmissibility on future visa applications).
Pursuing the K-Visa Option
Couples could also decide that the stress and hassle of consular processing via the I-130 route is not for them. If couples believe that the spouse residing in the United States will become a citizen within a year, this option might be best. The processing time for a K-1 visa is quick (in comparison to some other family based immigrant visas).
While it takes an average of 11-15 months to have an I-130 approved, the average wait time for an I-129F is only 6-9 months. The main stressor, however, with the K visa option is what to do with the limited time the visa is valid in the United States—90 days.
While each situation is different, and couples have different priorities, the most important factors to weigh when making the decision are time spent apart, added stress, understanding of various USCIS forms, and predictability.