I have a friend who has been teaching overseas for the last few years. He came back to the U.S. for the summer and brought his long-term girlfriend with him, she came over on a tourist visa. The girlfriend has a daughter from a previous relationship that they left back in her home country.
It was decided a week ago that they want to get married. He plans to return overseas for a month to fulfill some obligations and commitments before hopefully returning to the U.S. for good.
Can they just get married and then apply for a change in status to the visa?
Will they have any problems retrieving the daughter and getting a green card for her?
Now that the GF is in the U.S. would it be stupid for her to leave for a short time without being married and then try to come back on a fiancé visa?
Anything anyone can offer would be helpful, he is going crazy with stress over this.
My understanding is that the only way to get a fiancee visa is via consular processing in her home country. I do not believe you can receive a fiancee visa from within the United States. You cannot receive a fiancee visa if you have ever overstayed a tourist visa. So definitely don’t do that.
This is not a simple process however you slice it. Talk to an attorney experienced in such matters.
There are a lot of considerations here, not the least of which is processing time for a fiancee visa (Form I-129F) vs. a K-3 visa (for someone already married in the country in which he/she is applying for the visa). Processing time for each of the above is currently about 7 months, which fluctuates a lot.
Both categories allow for bringing dependent children under the age of 18. Is the father of the fiancee’s child going to be OK with that? Sometimes Consulates (or the State Department, depending on who you’re dealing with) want to see written proof that the other parent consents to the child leaving for the U.S. on a permanent basis.
Another thing to keep in mind is that depending on the country, and depending on what the U.S. citizen spouse’s immigration/residence status is there, you may be able to file either type of application directly with the Consulate and bypass USCIS in the States, which may save significant waiting time. For example, I’m working on a case right now in which the U.S. citizen spouse lives in Thailand, which would have meant that the Thai spouse could have gotten her immigrant visa in ~2 months instead of 7, IF the U.S. citizen spouse had still been on his Thai work visa (which he wasn’t, because he had quit his job).
There are definitely a lot of moving parts here - they should talk to someone who understands the process, for sure.
Eva Luna, Immigration Paralegal
P.S. One thing to be super-careful about when discussing the variant of simply getting married and having her apply for adjustment of status (green card while in the U.S., or concurrently filed I-130 and I-485) is the risk that USCIS will detemrine that they committed fraud and never intended for her to go home after visiting with her tourist visa (and it’s even riskier if she came on the Visa Waiver - fewer appeal rights). I won’t say it’s imposssible, but proceed with great caution, because a fraud determination is the kiss of death, immigration-wise.
I wanted to emphasize this. Entering the country on a tourist visa with the intention to immigrate is considered immigration fraud by the US government. If they determine your fiancee entered the US fraudulently, there is only a microscopic chance your fiancee will ever become a legal immigrant.
While it is not a foregone conclusion that they will make this determination, the consquences are severe if they do. For this reason it is best to play it safe and by the book, even if it takes more time and costs more money. The good news, as Eva Luna notes, is that consular processing is usually faster than processing in the US.
Not necessarily (plus, hey, you’re also separated from your beloved for the duration in many cases). Not all consulates will agree to process fiancee or immigrant visas locally, particularly if the U.S. citizen spouse isn’t legally resident in-country. If the local consulate won’t do it, you are looking at processing via USCIS in the U.S., and for the immigrant visa route, another 3+ months at least on top of that if all goes well AFTER the I-130 is approved before the foreign spouse is scheduled for an immigrant visa interview. And that’s of you have all your documentation (visa application forms, necessary birth/marriage certificates, police clearances, etc.) queued up to be filed as soon as the State Department’s National Visa Center notifies you that they have received notification of the I-130 petition approval from USCIS. And if there are no stupid holdups.
For more info on immigrant visa processing, documentation requirements, etc. at the National Visa Center, take a look here.
Sorry, I meant IF consular processing applies, it is usually faster. It doesn’t always apply. And of course it’s not always faster (depends on the country, right?)
I think we’re having terminology differences. To most people in the field, “consular processing” refers to immigrant visa processing, usually via the Dept. of State National Visa Center in the U.S., as opposed to adjustment of status in the U.S. And yes, it does depend on the country (and other factors).
As someone who’s gone through the fiance visa process, I’m going to agree with everything Eva has said. As such, I’d highly recommend you visit [http://www.visajourney.com](Visa Journey). It’s an invaluable site with in depth guides, links to resources and most of all an extremely knowledgeable and helpful community. Everyone there is going through or has gone through the Visa process and have much personal experience and advice to give. Given how complicated and frustrating the Visa process is, Visa Journey does an excellent job making it as smooth as possible. If you can’t tell, I can’t recommend this site enough
Thanks a bunch for all your information. I will talk to him tonight and link him to your information. I think the best possible alternative is to have them consult a lawyer prior to anything.
