For most people, navigating the U.S. immigration system can be challenging. There are so many eligibility requirements, and the application process itself can feel very complicated. This can be particularly overwhelming when the stakes are high, like when you are trying to obtain immigration status for your significant other so you can be together in the U.S. There are some different options for fiancé and marriage-based visas, depending on the particular circumstances, which can make this task feel even more daunting. This article aims to clear up some of those questions, so you will have the confidence you need to move forward.

What are the options for obtaining Legal Permanent Residence (otherwise referred to as a Green Card) for my significant other?

There are a few different options, depending on whether you are engaged to be married or already legally married. Your options also differ depending on whether your partner is currently in the U.S. or residing abroad. Finally, your own immigration status impacts the process. Only U.S. Citizens and U.S. Legal Permanent Residents (“LPR” or “Green Card Holders”) can sponsor their fiancé or spouse. Depending on your own status – whether an LPR or a U.S. Citizen, the visa category and process may be different.

If you are engaged and your significant other resides outside the U.S, you can apply for a K-1 visa to allow your fiancé to travel to the U.S. Once here, you must get married within 90 days. After that, your spouse can file the I-485 application to adjust your status to a permanent resident. Importantly, only U.S. Citizens can file a K-1 visa for a fiancé. If you are an LPR, you will either need to get married and pursue marriage-based visas options or wait until you receive your citizenship to file the K-1 visa application.

If you are already married, there are a couple of options:  First, if you are a U.S. citizen and your spouse is outside the U.S., you could file for a K-3 visa. This visa allows the spouse of a U.S. citizen to enter the U.S. with temporary legal status to adjust status to a green card holder once here. However, this visa type is rarely used for a couple of reasons. First, the K-3 visa processing time is historically very long. Currently, some USCIS service centers are reporting up to 22 months as the average processing time. In order to file a K-3 visa, you must have already filed an I-130 petition with USCIS to begin the spousal green card process. Since the I-130 will likely be approved in the same timeframe as the K-3 visa, it makes more sense to just directly apply for a green card through the consulate and enter as a permanent resident instead.  While the K-3 visa is meant to reunite couples in the U.S. while they wait for the green card process to be complete, the lengthy processing time this visa category is currently experiencing negates its purpose. Since it serves as an additional step and an extra cost, most couples skip this option altogether. There are much better options, as described below.

First, if you are a U.S. citizen and you have been married for less than two years, your spouse is eligible for a CR1 (Conditional Resident) visa. This will allow your spouse to come to the U.S. as a Conditional Permanent Resident. Within two years after arriving in the U.S., you and your spouse can apply to remove the conditions from the green card, at which point a 10-year permanent resident card will be issued.

If you are a U.S. citizen and you have been married for more than two years, you can apply for an IR1 (Immediate Relative) visa, which allows your spouse to enter the U.S. as a Permanent Resident. Once in the U.S., your partner will receive a 10 -year card as proof of this status.

If you are a U.S. citizen and your spouse is already in the U.S., you can file an I-130 petition concurrently with an I-485 application for your spouse to adjust to a permanent resident here in the states. The length of your marriage will still determine whether the green card is issued for 2 years or 10 years, just like if you go through this process at a consulate.

If you are not a U.S. citizen, there are still options. If you are an LPR, your spouse is eligible for the F2A visa category. However, the application process for spouses of permanent residents is often much longer than for spouses of U.S. Citizens. Unlike IR1 or CR1, spouses of green card holders are subject to a priority date. In other words, a visa may not be immediately available. High demand in this visa category means that demand often exceeds the number of available visas. Currently, however, the priority date is current for F2A for all countries, meaning there is not a waitlist. If your spouse is abroad, this process entails filing an I-130 petition and then going through the consular process after it is approved. If your spouse is here, you can file the I-130 petition, and, once approved, your spouse can file an I-485 application to adjust to a green card holder within the U.S., as long as the priority date is current. Concurrent filing is not available for spouses of LPRs.

What are the filing fees for fiancé and marriage-based visas?

For fiancé visas, the USCIS filing fee is $535. Once the K-1 application is approved, your fiancé will need to complete a DS-160 visa application at the applicable consulate, which has a $265 fee. Once the K visa is approved and your spouse receives the visa at the consulate and comes to the U.S, you will get married within 90 days and then your spouse will file an I-485 application to become a permanent resident. The USCIS filing fee for an I-485 is $1225, including biometrics. In total, the application fees come out to $2,025.

For marriage-based visas (IR1, CR1, or F2A), which is filed using the I-130 form, the USCIS filing fee is $535. If your spouse is abroad and will be completing the green card process at the consulate, they will need to complete the DS-260 visa application and affidavit or support, which come out to $445 in filing fees. If the case is approved, your spouse will receive a visa stamp in his/her passport, which allows them to travel to the U.S. At this point, they must pay a $220 immigrant fee to USCIS online. As soon as your spouse enters the U.S., they will hold green card status. The physical card typically arrives 2-3 weeks later, mailed to your U.S. address. In total, the application fees are $1200.

For conditional residents, what is the process for removing the conditions?

If your spouse is a conditional permanent resident, meaning the green card is valid for only two years, you will need to file to remove the conditions on their green card before it expires. USCIS allows you to file to remove the conditions within 90 days of the expiration date. Once the conditions are removed, the 10-year green card will be issued. This process entails filing an I-751 petition, which has a U.S. filing fee of $680, including biometrics.

For most couples, this process entails jointly filing the I-751 with USCIS and providing evidence the marriage is valid and continues to exist. However, in some circumstances, the marriage may break down before reaching the 2-year mark. This doesn’t mean your former spouse can’t still remove their conditions. If the marriage was entered into in good faith but ended through divorce or annulment, your former spouse can file individually to remove the conditions. To do this, they will need to provide evidence that the marriage was genuine and wasn’t entered into for the sole purpose of obtaining a green card.

When can my spouse become a citizen?

After your spouse has been a green card holder for 3 years, they can apply for naturalization to become a U.S. citizen by filing an N-400 application with USCIS. While typically you cannot apply for naturalization until you have held LPR status for 5 years, if the green card was based on marriage, you can apply after 3 years instead.

Importantly, if the marriage breaks down before the three-year mark, your spouse will need to wait and apply after 5 years instead.

Can I sponsor my same-sex partner for a U.S. Green Card?

Yes. Just like same-sex couples, you must prove your marriage is legally valid in the place it occurred in order to file for a green card. If you were married in the U.S., this requirement will be met, as all states must recognize same-sex marriages performed anywhere in the U.S. It could get complicated, however, if the marriage took place outside the U.S., in a country that does not recognize same-sex marriage. In that scenario, you may need to obtain a fiancé visa instead. Once your partner comes to the U.S., you can get married here within 90 days and then proceed with filing the Green Card.

Can I get my registered domestic partner a Green Card?

No, U.S. law does not treat civil unions and domestic partnerships the same as marriage.

If you have any questions about fiancé or marriage-based visas or any other immigration-related issue, please reach out to an ILBSG attorney today. We are here to help.

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