In practice, United States Citizenship and Immigration Service (USCIS) and the State Department have no preference when it comes to when and were the marriage occurs. Marriage-based and fiancé(e)-based visas are treated equally, provided the elements of the particular visa are met. When reviewing cases, immigration officials will determine whether the relationship was entered into for legitimate purposes, as opposed to the fraudulent intent to obtain immigration benefits.
If the application packet has been properly and fully prepared with all of the required evidence, the marital status of the couple should have little impact on the final decision as to whether a visa is granted. If, however, an application is lacking specific evidence to demonstrate a legitimate and ongoing relationship, even a long-married couple could face difficulties.
When we receive inquires such as this, we counsel our clients to determine what is most important to them, and then take the time to prepare their cases accordingly. For instance, if it is important for a wedding to occur in a home country because of ties to family, community, or traditions, we advise our clients get married outside the United States and then apply for a marriage-based visa.
However, if the couple is not yet ready to get married, or if the couple prefers that the marriage occur in the United States, we may advise them to take the fiancé(e) (K-1 visa) route. (It should be noted, however, that K-1 fiancé(e) visa holders and their U.S. citizen fiancé(e) must legally marry within 90 days of arrival in the United States.) In some instances, such as for same-sex couples, the only option is to get married in in the United States because such a union is illegal in other countries.
Processing Time Considerations
Because each type of application has its own processing time based on the number of similar applications received, wait times between different visa categories can be drastically different. These wait times also change often as submission numbers change. If time is of the essence, it is highly advisable to be aware of the wait times associated with fiancé(e) versus marriage-based visa categories, preferably before the marriage occurs because one could offer a significantly shorter wait time.
Change of Status While in the United States
If the foreign fiancé(e) is currently present in the United States on another valid visa category, then it may be possible for that person to apply for a change of status to that of a Permanent Resident at the same time the U.S. citizen fiancé(e) submits the marriage-based Permanent Resident petition (known as concurrent filing). For concurrent filing to be applicable, the couple will first have to be legally married and must demonstrate the legitimacy of the relationship.
A foreign fiancé(e) should not enter the United States in another visa category with the intent to marry and change status as it is not permissible to obtain a temporary visa (other than a K-1 fiancé(e) visa) with the intent to then change to a Permanent Resident. For the concurrent filing option to be viable, it must be demonstrated that the intent to marry and change status came after the foreign fiancé(e) was already in the United States.
In many cases, a couple should base their marriage plans on personal preference rather than immigration considerations. That being said, it is highly advisable to be aware of any and all issues that may arise with a marriage-based immigration application prior to the marriage occurring. Early planning will provide peace of mind and allow for the proper level of preparation.
Given the complexities of the immigration processes associated with marriage-based filing and the constantly changing processing times, we strongly urge anyone facing a marriage-based immigration matter to contact an immigration attorney, preferably before the marriage occurs.
The Grady Firm, P.C. serves clients across California and the globe, with offices in Los Angeles, San Francisco, and San Diego. To best serve our international clients, our attorneys are fluent in Spanish, French, Hindi, Punjabi, Armenian, and Swedish. To schedule a complimentary 15-minute consultation with one of The Grady Firm attorneys, fill out a Contact Request Form, or call (323) 450-9010.
For further reading, see: “If I have a legitimate marriage, why do I need an immigration attorney to help me apply for a Green Card?“