The Basics On Fiance Petitions, Fiance Visas, and Marriage Petitions

Oct 15, 2015 | Form I-130

As a Miami immigration lawyer, I often handle  fiance petitions for individuals who are planning on marrying United States citizens. Here are some basic frequently asked questions.

What are the basic eligibility requirements for a fiancé(e) petition?
You must be a U.S. citizen to file a fiancé(e) petition. In your petition, you must show that:

  •  You are a U.S. citizen;
  • You and your fiancé(e) intend to marry within 90 days of your fiancé(e) entering the United States;
  • You are both free to marry; and;
  • You have met each other in person within 2 years before you file this petition.

However, there are two exceptions that require a waiver: – If the requirement to meet your fiancé(e) in person would violate strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice; or – If you prove that the requirement to personally meet your fiancé(e) would result in extreme hardship to you.  If you have any further questions as to the eligibility to file a fiancee petition, do not guess – it is best to consult with a Miami immigration lawyer to discuss your options for marriage to United States citizen.

If I choose the fiancé(e) visa option, how does my fiancé(e) obtain permanent resident status?
Your fiancé(e) will need to enter the United States with a fiancé(e) visa. Once admitted to the United States with a K-1 visa, your fiancé(e) will be authorized to stay for 90 days during which you are permitted to marry. As soon as you marry, your spouse may apply for permanent residence by having you and/or your Miami immigration lawyer file the Application to Register Permanent Residence or to Adjust Status. Again, if you have any questions in regard to this process – do not guess. You should contact a lawyer who specializes in immigration law in Miami to discuss your options.

My fiancé(e) has a child. May the child come to the United States with my fiancé(e)?
If the child is under 21 years old and is not married, a K-2 visa may be available to him or her. Remember that each case varies, and that you should speak with a Miami immigration lawyer if you have any questions.

Can my fiancé(e) work in the United States while on a fiancé(e) visa? 
After admission, your fiancé(e) may immediately apply for permission to work. Your Miami immigration lawyer will probably file an Application for Employment Authorization. Note: Any work authorization based on a nonimmigrant fiancé(e) visa would be valid for only 90 days after entry. However, your fiancé(e) would also be eligible to apply for an extended work authorization at the same time as he or she files for permanent residence. I would encourage you to consult with your Miami immigration lawyer regarding the extension of work authorization.

What if my fiancé(e) uses a different kind of visa, or enters as a visitor without visa, to come here so we can marry?
I do not recommend this strategy at all. First, there could be serious problems for your fiancé(e) if he or she enters the United States on another visa with the intention of marrying and residing here. Attempting to obtain a visa or entering the United States by saying one thing when you intend another may be considered immigration fraud, for which there are serious penalties. Those penalties include restricting a person’s ability to obtain immigration benefits, including permanent residence, as well as a possible fine of up to $10,000 and imprisonment of up to 5 years. If you have any questions about the legality of entering on a different kind of visa, or entering without a visa, I would highly recommend that you speak with a Miami immigration attorney to avoid breaking any laws, and potentially derailing you/your fiance’s immigration petition.

What if my fiancé(e) is already in the United States in another status and we decide to marry now?
If your fiancé(e) is in the United States and entered using a visa other than a fiancé(e) visa, and you marry, then you may file an I-130 relative petition for him or her as your spouse. If your fiancé(e) is in the United States and entered unlawfully, in most cases he or she will not be able to adjust status to that of a permanent resident while in the United States. In this situation, once you marry, you may file an I-130 relative petition for him or her as your spouse. If approved, he or she will have to pursue an immigrant visa at a U.S. Embassy or consulate overseas.

What if we are engaged but have not yet decided to marry?
The fiancé(e) visa is a temporary visa that simply permits your fiancé(e) to enter the United States so that the two of you can marry in the United States within the 90 days permitted from the date of entry. It is not a way for you to bring a person here so you can get to know one another, or spend more time together to decide whether or not you want to marry. For further questions, you should consult with a Miami immigration lawyer.

What happens if we do not marry within 90 days?
Fiancé(e) status automatically expires after 90 days. It cannot be extended. Your fiancé(e) should leave the United States at the end of the 90 days if you do not marry. If your fiancé(e) does not depart, he or she would violate U.S. immigration law. This could affect future eligibility for U.S. immigration benefits.

If you would like more information on filing for a fiance petition, obtaining a fiance visa, or filing a marriage petition, please contact Miami immigration lawyer The Law Office of Tatiane M. Silva, P.A., Esq. at (305) 895-2500 or visit our website at tmsilvalaw.com.