Every year, we consult with hundreds of potential clients looking into bringing their spouse or fiancé into the U.S. to live permanently. More often than not, the foremost consideration for most people is to have their spouse/fiancé come to the U.S. as quickly as possible so that they can begin their lives together. In light of this goal, the fiancé visa seems very appealing in comparison to the marriage visa. Unlike the marriage visa process, which requires a legal marriage before a case can be filed, a fiancé visa case can be started immediately. Secondly, a fiancé visa case, if properly handled, can lead to the fiancé coming into the U.S. within 6 to 8 months of filing. This is much quicker than the average one-year-period that marriage-based cases are taking as of this date. However, there are a few key disadvantages of the fiancé visa that need to be considered when deciding which route to go.
The government costs of a fiancé immigration case are significantly more than that of a marriage-based immigration case. These costs are often misunderstood given the multiple steps and filings that go into a fiancé visa case. The initial government filing fees for a fiancé visa case in the first step total $800 ($535 + $265); however, the second step, adjustment of status once the fiancé comes to the U.S., is an additional $1,225. The total government costs of a fiancé visa of $2,025 are more than the marriage visa government costs of $1,200. Unlike the fiancé process, a person that enters on a marriage visa does not have to make a second filing to receive their permanent resident status (green card). Keep in mind, the fiancé visa process plus adjustment of status are two separate cases, which often means additional attorney’s fees as well. For those that are considering costs of the immigration process, the marriage-based route is significantly less expensive.
Although the fiancé visa process can lead to your fiancé coming to the U.S. sooner, they will have to physically remain in the U.S. until they either get their green card or a request for advance parole (travel document) is approved. The advance parole document has been taking approximately 5 months to process from the date of filing as of this date. From a practical position, this would mean that if a fiancé came to the U.S., was married within the week of arrival and filed within days of getting married, they then could possibly have to wait 5 months until they can travel outside of the country. Unlike in the fiancé visa process, a person that enters on a marriage visa is free to begin travel in an out of the U.S. immediately. For those that cannot remain in the U.S. for this period of time and must travel, the marriage visa would be a much better option.
Restrictions on Marriage
To qualify for a fiancé visa, the foreign individual must be free to marry the fiancé once he/she arrives in the U.S. This necessarily means that if the couple gets married while the fiancé visa is pending, they no longer qualify for the fiancé visa. This means, they will lose the time and money that was spent on the fiancé visa process and will have to begin the marriage visa process from the start. Often, this takes many couples by surprise given their erroneous belief that somehow the fiancé visa can be “converted” into another visa; it cannot. Other times, if the government takes longer than normally expected to process the fiancé visa case, the couple has no choice but to get married due to previously made plans. For those that do not want this restriction against marriage while the fiancé visa case is pending, the marriage visa would be a better option.
Finding of Fraud and Misrepresentation
The approval of a fiancé visa petition by USCIS is not a guarantee that a visa will be issued by the U.S. Consulate. Even after USCIS has approved your case, an officer can make a finding of fraud and misrepresentation in your case, which could lead to your fiancé being barred from coming to the U.S. permanently. This petition will then be sent back to USCIS to re-determine their decision to approve the Petition. Often, this is done by Consulate Officers based on a misunderstood answer to a question the officer asked during the interview. Given the adversarial nature of the interview process, your fiancé may not have a reasonable opportunity to provide additional evidence or explanations to persuade the Consulate Officer otherwise. This finding of fraud and misrepresentation, unfortunately, is made in MANY true and real fiancé relationship cases based on poor conclusions by an officer and/or poor answers by applicants. This finding poses a unique issue for fiancé visa cases. Unlike marriage visa cases, fiancé visa petitions are given a limited four-month validity period. This means that a fiancé visa must be issued within the four months that the Petition is valid, otherwise, it must be revalidated by DOS or USCIS for a visa to be issued. When a Petition is sent back to USCIS to be denied, it often becomes invalid by the passage of time. In this case, it has been the practice of USCIS to simply consider the case denied and no opportunity is given to the couple to defend themselves against a fraud and misrepresentation finding. Now, the couple is left with two options, either refile the fiancé visa case and hope the same thing doesn’t happen again or get married and start a marriage-based case. Even in the case of a subsequent marriage-based petition, the couple may have to defend themselves against the fraud and misrepresentation finding made by the Consulate Officer. Unlike the fiancé visa petition in this type of situation, a marriage-based petition send back to USCIS would have to be reconsidered and the couple would have a reasonable opportunity to file a defensive response. For those relationships that have certain characteristics such as large age difference between the couple, differences in cultural, religious, or ethnic backgrounds, or previous divorces, the marriage-based case is a much safer option as the government often sees these relationship attributes as “red flags.”