During the pandemic, it became increasingly difficult for partners/fiancé(e)s of US citizens to remain together. There was significant disruption for the families of US citizens, including planning where the family may want to reside and plans for marriage were routinely disrupted due to travel restrictions, consulate closures and foreign national entry requirements.
The process for a non-US citizen to marry a US citizen and gain permanent residency has not varied significantly, other than an increased scrutiny on applications and relationships, and enhanced consideration of public charge.
Please note that this article does not focus on partners already residing in the US on non-immigrant visas, it is focused on partners outside of the United States.
The planned filing of a visa petition for a foreign partner will likely take significant time to process, so advanced planning for a US non-immigrant visa case is important, especially when the process will transition to involve filing for immigrant visas and permanent residency.
De-Facto and Same-Sex Relationships
For those familiar with Australian migration and family law, the US does not allow for de-facto partnerships to be considered for US spouse immigration benefits. Therefore, at some point in the immigration process, a legal marriage will need to take place for your partner/fiancé(e) to obtain US immigration benefits as the spouse of a US citizen.
It is also important to note that when the US Supreme Court overturned the Defense of Marriage Act (DOMA), the US has allowed same-sex marriages to be recognized for US immigration purposes.
I-130 Petition and Immigrant Visa
The first option and many times the one that is most practical for couples is to get married and then proceed with an immediate relative I-130 Petition and immigrant visa.
The second option is a K-1 fiancé(e) visa, to bring your partner to the US to get married and then apply for permanent resident status afterwards. Many times, a K-1 visa will be used if the speed of entry to the US is the most important factor or if the couple cannot get married prior to starting an immigration case.
We covered the options for spouses of US citizens to immigrate in a separate article, though prior to marriage requires a different process.
For a fiancé(e) (K-1 visa) case, there are some additional steps to permanent residency once the fiancé(e) marries in the US. This is because a K-1 visa is a more limited, non-immigrant visa. For a K-1 visa case, it is important to remember that a K-1 visa is only a single-entry visa, and no employment is authorized by the visa in the United States.
The basic process that follows for couples that are planning on getting married in the US;
- An I-129F Petition for Alien Fiancé(e) is filed with USCIS.
- USCIS then forwards the case to the NVC that transfers the case to a US consulate overseas for a visa application.
- If a K-1 visa is approved, the foreign national fiancé(e) may then enter the US.
- After entry, the couple must get married within 90 days of entry on the K-1 visa.
After marriage, the couple then must file a Form I-485 Application to Adjust Status with USCIS for the non-US spouse to become a lawful, permanent United States resident (US Green Card).
Changes to Public Charge
It is important to remember that as of February, 2020, there have been significant changes to the adjudication of public charge.
Public charge is an important hurdle in these cases where the totality of circumstances are reviewed to determine if the foreign national relative is likely to become dependent on the government in the future. This is a potential reason a visa can be refused, or an adjustment of status denied. This is now an even more important part of planning for the immigration of a foreign national partner/fiancé(e).
If you would like further information regarding your eligibility or if marriage prior to entering the US is the best course of action in your circumstance, please don’t hesitate to reach out to us.
About The Author
Melissa Vincenty is a U.S. Attorney, a registered Australian Migration Agent and the founder and managing director of Worldwide Migration Partners. Melissa has over 25 years of experience in U.S. Immigration Law, including practising at the world’s largest U.S. Immigration Firm and more than 15 years as a Country Specialist (China and Tibet) for Amnesty International USA.
Disclaimer: The information in this article is general in nature, may not, and is not intended to constitute the most up-to-date legal or other information, and is for general informational purposes only. It does not represent legal advice specific to any individual/s situation, and should not be relied on as such. Please contact us for a consultation for legal advice for your individual circumstances.