It seems logical enough that if you’re engaged to marry someone from a foreign country, you need a fiance visa. And many times, it is what the person needs. However, there are some circumstances in which it doesn’t make sense to try to get a fiance visa for your foreign fiance. One of these times is if your foreign fiance is already physically in the United States. They may be here because they live here, or they may be here because they are studying here or just visiting here.
For many, but not all, foreigners who are engaged to US citizens, and who are physically present in United States, it may make sense to simply get married and then pursue your green card options in the United States. However, there are some very serious potential landmines if you’re in the situation, so we don’t recommend that you move forward with your marriage until you get the advice of a qualified immigration lawyer. That is because if your fiance is on a different type of visa it may actually be considered fraudulent for you to get married and apply for a green card inside United States.
Each type of visa has specific rules about your intentions at the time you obtain the visa and at the time you travel into United States on the visa so if your visa rules don’t match up with your intentions about moving to the United States and marrying your fiance, the government can in the worst case scenario say it’s fraud and deny your case or even bar you from being able to get another visa and unless you get a special type of waiver to be forgiven for the fraud. However, speaking in generalities, if your foreign fiance is in United States on another type of visa frequently the most common option will be for them to simply remain in United States, get married, and then apply for what’s called an adjustment of status, which is a type of green card application.
When Applying for the K-1 Visa Inside the U.S. Makes Sense
However, in some less common situations it actually does not make sense for the foreign fiance to stay and marry inside United States and do an adjustment of status. That could be because the fiance for whatever reason does not actually qualify for an adjustment of status, or maybe they just can’t stick around long enough to complete the adjustment of status process because they may need to travel internationally for their work or for other reasons. So sometimes we have clients whose fiances are actually visiting them in the United States while they are in the fiance visa process. This helps them cut down on time spent apart while at the same time obtaining the fiance visa.
K-1 Visa for an Undocumented Fiance
Another fairly common type of scenario is when an undocumented foreigner lives in the United States and is engaged to a US citizen. Whenever someone has been undocumented in United States for any period of time, whether that is because they came in without a visa to begin with or whether they have stayed longer than the previous visa allowed them to, it is super-duper important to have advice from an immigration lawyer before leaving the United States. That is because there are some penalties that are triggered only when the immigrant returns to their home country. For example, some immigrants are barred for 10 years from returning unless they obtain a certain type of waiver.
So if your fiance wasn’t documented and they left the United States because you were trying to pursue a fiance visa for them and you knew they had to be interviewed at an embassy in their home country, their travel abroad may cause them to spend literally two years or more stuck outside of the US while we try to resolve the issue for you by obtaining the necessary waiver. On the other hand, someone in the exact same situation could get married here and we could’ve obtained the waiver here and then we could send them to their home country for an interview for about three weeks of time only and they could return is a green card holder. It’s always really important to figure out what your overall strategy is before starting any steps!