Marriage Green Cards: Visas vs. Adjustment of Status - Frear Law
immigration lawyer k1 visas adjustment of status green card
If you are a foreign national who plans to marry or get engaged to a US Citizen, I have good news and bad news. The good news is that if you do not have certain immigration violations or criminal convictions you will be able to get a green card as long as you can show that your relationship is real. The bad news is that there are a number of options that you have to consider. Finding the best option requires careful analysis and a consultation with an immigration lawyer. This post is designed to help you gain a basic understanding of the available options for obtaining your green card through marriage. Let’s dive in!

 

Step #1–Look for the Problems!

Before we get to your options, it is important to mention that possible bars to entry oftentimes play a huge role in deciding which option to pursue.
For example, if you are currently in the United States, having overstayed a visa by 180 days, you should not leave and try to pursue a marriage based immigrant visa or a K1 Visa. Why? Because doing so will result in a 3 or 10 year bar from re entering the US! If you stay in the US and get married, you will be able to adjust to green card status if you can meet all of the other requirements.
If you have other immigration violations, you will likely need to leave the US and apply for a waiver in your home country. The thing to understand about waivers is that your options will be determined by your immigration violations. For most immigration violations, you will be required to leave the country and apply for a waiver. This is extremely difficult for families to go through. If you are in this position, you will be stuck in a foreign country away from your family members and the country where you envision your future.
However, if your only violation is that you entered the country illegally, you may qualify for a better option. With a 601A waiver, a person who entered the country illegally once but has no other immigration violations could apply for the 601A waiver from the United States. If the waiver is granted and all of the other conditions are met, you can go to the foreign consulate with your approval notice and enter the US with an immigrant visa.
The topic of waivers is extremely nuanced, so it is wise to consult an immigration lawyer before you attempt this route.

Option #1 Apply for the K1 Visa Outside of the US

Ok, let’s assume that you have no bars to adjusting to green card status or immigrating to the United States. Let’s also assume that you are currently in the United States and can prove the legitimate nature of your relationship.
One possibility is to leave the US and apply for the K1 Visa. The K1 visa allows you to enter the United States on a non immigrant visa. Once you enter, you must marry within 90 days and then file for adjustment of status to green card status. The K1 visa has some advantages and some disadvantages.

 

What are the Advantages and Disadvantages of the K1 Visa?

One advantage of the K1 Visa is that it has historically been a fast option. Also, it enables you to plan a wedding in the United States in advance.
One disadvantage is that you have to prove that your relationship is bona fide on multiple occasions. After your form I-129F is approved, you have to satisfy a consular officer that you have a legitimate relationship. If you survive the interview and are fortunate enough to obtain the K Visa to enter the US, then you still some convincing to do. When you apply for adjustment of status to obtain a green card, you will again have to prove(this time to USCIS) that you are in a real relationship.
Another disadvantage is that you will not be able to work upon entry into the United States. In order to work, you will have to apply for work authorization which will usually take 90 days to obtain.

Who Should Consider a K-1 Fiance Visa?

So, who is a good fit for a K-1 Visa? The K-1 Visa is best for those who want to plan a wedding in the US and do not mind waiting for work authorization once they enter the country. Additionally, the ideal K1 Visa applicant is someone who has strong evidence that the relationship is bona fide and does not mind presenting that evidence multiple times.

 

Option #2 Get Married and Apply for an Immigrant Visa

A second path to a green card involves applying for an immigrant visa after you get married. If you marry in the US, this would mean that you leave the country and go through consular processing at a consulate abroad. The process would commence with the filing of form I-130 with USCIS. Processing time for the I-130 usually takes between 5-7 months. After the I-130 is approved, you would be scheduled for an interview approximately 3-6 months later. If all goes well, you will receive the immigrant visa and enter the US. After you enter the US you can expect to receive your green card two to six weeks later.

What are the Advantages and Disadvantages?

The advantage of this route is that you will be able to work shortly after your arrival. Additionally, unlike with the K1 Visa, you will not have to convince adjudicators on multiple occasions that your relationship is valid. The main drawback of this option is that you will likely be separated from your partner for a relatively long period of time while the process unfolds.

 

Who Should Consider Applying for an Immigrant Visa?

This option is best for people who need to return to their home country and want to be able to work shortly after landing on US soil.

 

Option #3 Adjustment of Status through Marriage

If you can remain in the US after you get married, you can have the best of both worlds. You will be able to stay in the US with your spouse and avoid a frustrating period of separation. Also, you will be able to apply for work authorization which is usually granted within 90 days. If the I-130 is granted, then an adjustment of status interview would be scheduled for you to attend with your spouse. Once the interviewer is satisfied that you have a bona fide relationship, you will be granted a green card.
The adjustment of status fee is currently $1225 plus $535 for the I-130. The entire adjustment of status processing time usually takes between 7-15 months. For more information on the adjustment of status requirements click here.

The Disadvantages of Adjustment of Status

The main drawback of staying in the US and applying for your green card is that you can not travel while the I-130 is pending unless you are given special permission(referred to as advanced parole). If you leave the US without permission before your green card is granted, your application will be considered abandoned.
There is another potential problem with this approach. If your status has expired, you will be able to apply for adjustment of status to obtain your green card as long as there are no other bars to adjustment. However, if your status has expired, you would be subject to deportation if you ever come into contact with law enforcement. Many clients choose to avoid this anxiety inducing situation and opt for the marriage based immigrant visa.

Who Should Consider Adjustment of Status?

Adjustment of Status should be considered by those who have no other bars to adjustment and want to stay in the US. Additionally, if you are out of status, this option should be avoided if you will have difficulty managing the stress and anxiety associated with falling out of status.

Conclusion

I hope that this information helps you to consider your options. As always, it is recommended that you speak with a knowledgeable immigration lawyer before you decide which option to pursue.

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