This blog series will help you discover how you can sponsor your spouse for a U.S. marriage green card. As immigration lawyers in Windsor, Ontario and Detroit, Michigan, questions around sponsoring a spouse to move to the U.S. versus Canadian spousal sponsorship are common.
Part 5 is the last post in this series on marriage green cards for Canadians. It will consider the fiancé visa, which may be a better option than a marriage-based green card for couples in certain circumstances. In case you missed it, Part 4 of this blog compared the consular office process to the adjustment of status process, including special considerations for Canadians who regularly cross the Detroit-Windsor border.
Fiancé visa vs. marriage visa?
The foreign-citizen fiancé of a U.S. citizen may apply for a K-1 nonimmigrant visa, often referred to as the “fiancé visa”. Successful applicants of the K-1 visa may travel to the United States for the purpose of marrying and filing for permanent residence through an adjustment of status. The K-1 visa is a different category of visa from family sponsorship, and has different requirements that must be met. Basic requirements of the K-1 visa include:
- The couple must have a bona fide intent to marry within 90 days of the foreign national entering the U.S.;
- Each member of the couple must be legally able to marry at the time the petition was filed and must have remained so thereafter;
- The marriage must be legally possible according to the laws of the U.S. state where the marriage will take place; and
- The couple has met in person within 2 years of filing the petition, subject to limited exceptions for reasons of extreme hardship.
Certain conditions and activities may make the applicant ineligible for a visa - for example, overstaying a previous visa, drug trafficking, or submitting fraudulent documents.
Evidence of a Bona Fide Relationship
According to official U.S. Department of State statistics, the K-1 visa is one of the non-immigrant visa categories with the highest rate of refusals. There are several reasons why this may be true, but a common one relates to concerns with the bona fide intent of the couple. Consular officers are directed to look for signs of fraud in considering visa petitions, and K-1 petitions tend to be heavily scrutinized. Therefore, a couple applying for a K-1 visa must be prepared to provide evidence of their relationship at the visa interview. This evidence may include:
- Evidence of correspondence between the couple both before and after the petition was filed;
- Evidence of having met in person within 2 years of filing the petition;
- Photographs of the couple together; and
- Other evidence demonstrating their commitment to each other. For example, for couples based in Windsor-Detroit, we often provide evidence of trips across the border to visit each other.
Further, couples should be prepared to explain and provide evidence on any aspects of the relationship that may be looked at with suspicion. A non-exhaustive list of circumstances that may require additional explanation includes:
- A significant age difference between the couple;
- Inability of the couple to speak the same language;
- Different backgrounds (educational, cultural, religious, etc.);
- Social media posts reflecting discrepancies that may raise questions about the bona fide nature of the relationship;
- Lack of communication and/or visits between the parties; or
- Short dating/courting timeframe before the K-1 petition was filed.
If there is any reason why a consular officer may question the bona fide nature of the relationship, it is strongly recommended that you speak with an immigration lawyer before filing the petition.
Expiration of Status
K-1 status will automatically expire within 90 days and cannot be extended. This means that if the marriage does not happen within 90 days of entering the United States, the fiancé must leave the country. If they do not depart, deportation is possible and there may be serious implications for future immigration benefits.
K-1 as an Alternative to a Marriage-Based Green Card
It is recommended that you seek legal advice to help you determine whether a K-1 visa or a marriage-based petition is better suited to your circumstances. There are some reasons why a K-1 visa may be the best fit for you, such as:
- You want to hold your wedding in the U.S.;
- There is a reason why you cannot be legally married abroad; or
- You do not want to live separately during the processing period.
Alternatively, a marriage-based green card petition may make more sense if:
- You want to hold your wedding abroad;
- You are budget-conscious (because the marriage-based petitions are less expensive);
- You want to be a permanent resident upon your arrival to the U.S.; or
- You want the quickest option, as the entire K-1 process from filing to green card tends to take longer.
Sisu Legal Immigration is available to help couples with both marriage-based green card petitions and K-1 visas. In particular, we regularly work with Canadian and U.S. couples who are considering both marriage green cards or Canadian spousal sponsorship. If you would like to explore these options further, we encourage you to book a consultation with us!