Fiance is returning home before marriage. Does this create problems?

[tjmort 0]

Hello,

My fiancé is an au pair from France whose visa ends July 3rd. She wants to return home for a couple months to visit family members in poor health before getting married because we have heard the processing time after marriage can take over a year (during which she can't leave the country). Will this create problems? And which visa is best for her to return to the US with for us to get married?

 

Also, is there a way I'm not aware of where we could get married before she leaves on July 3rd (while on her J1 visa) and could still return to France in the near future to visit family?

Edited May 29, 2023 by tjmort

[Timona 4,207]

K-1. 

[Crazy Cat 41,845]

11 minutes ago, tjmort said:

Hello,

My fiancé is an au pair from France whose visa ends July 3rd. She wants to return home for a couple months to visit family members in poor health before getting married because we have heard the processing time after marriage can take over a year (during which she can't leave the country). Will this create problems? And which visa is best for her to return to the US with for us to get married?

 

Also, is there a way I'm not aware of where we could get married before she leaves on July 3rd (while on her J1 visa) and could still return to France in the near future to visit family?

She cannot enter the US with the intent to stay without the proper visa to do so. 

[Daphne . 1,853]

You can get married while she is still in the US, she can leave the US and you can start the CR1. This means that she’ll go through consular processing and once she has her CR1 approved, she can move to the US. 

[tjmort 0]

@Daphne . Thank you. During processing, is she able to visit the US (B-1 or ESTA?) or is she just guaranteed to be allowed into a US port of entry, but not necessarily allowed to enter the country on a visa?

[Crazy Cat 41,845]

1 minute ago, tjmort said:

During processing, is she able to visit the US (B-1 or ESTA?) or is she just guaranteed to be allowed into a US port of entry, but not necessarily allowed to enter the country on a visa?

Visiting during the process is allowed at the discretion of CBP.  I would give serious consideration to a spousal visa:

Every couple has their own priorities, and each couple must decide which visa is better for their situation.

K-1        
    More expensive than CR-1    
    Requires Adjustment of Status after marriage (expensive and requires a lot of paperwork)    
    Spouse can not leave the US until she/he receives approved Advance Parole (approx 6-8 months)    
    Spouse can not work until she/he receives EAD (approx 6-8 months)    
    Some people have had problems with driver licenses, Social Security cards, leases, bank account during this period    
    Spouse will not receive Green Card for many months after Adjustment of Status is filed.
    A K-1 might be a better choice when 18-21 year old children are immigrating also
    In some situations, marriage can affect certain Home country benefits, making a K-1 a better choice   
    A denied K-1 is sent back to USCIS to expire
    

CR-1
    Less expensive than K-1    
    No Adjustment of Status(I-485, I-131, I-765) required.    
    Spouse can immediately travel outside the US    
    Spouse is authorized to work immediately upon arrival.    
    Spouse receives Social Security Card and Green Card within 2 or 3 weeks after entering the US    
    Opening a bank account, getting a driver's license, etc. are very easily accomplished with GC, SS card, and passport.
    Spouse has legal permanent Resident status IMMEDIATELY upon entry to US.
   

 

 

[Daphne . 1,853]

9 minutes ago, tjmort said:

@Daphne . Thank you. During processing, is she able to visit the US (B-1 or ESTA?) or is she just guaranteed to be allowed into a US port of entry, but not necessarily allowed to enter the country on a visa?

I was able to visit on my Esta while my CR1 was processing, but it is up to CBP’s discretion. I had strong ties to my home country (job in middle management, property, etc) and only did short visits of 1-2 weeks. 
As a French citizen she is eligible to use an Esta, don’t have her apply for a B visa because she will lose her Esta if the B visa gets denied, and wanting to visit for long periods at a time doesn’t show strong ties to her home country. 
Also, check to see if her J visa comes with a 2 year home residency. When doing the CR1, the timing might work out (they take around 18 months), but double check.

[powerpuff 6,697]

4 hours ago, tjmort said:

is she just guaranteed to be allowed into a US port of entry

Only US citizens are guaranteed entry into the US.

[Redro 4,611]

5 hours ago, Daphne . said:

You can get married while she is still in the US, she can leave the US and you can start the CR1. This means that she’ll go through consular processing and once she has her CR1 approved, she can move to the US. 

She might have to wait for her contract to end. Some au pair programs end their relationship with the au pair if they marry. 

@tjmort you will have to decide between fiance visa and spousal visa for your partner. If your partner is interested in being able to work and travel after the marriage you should marry and file the spousal visa. Fiance visa will mean once she returns to the US with said visa she will not be able to work or travel until she receives EAD and AP.

Also, be aware the price of adjustment is going to increase soon. 

[Mike E 11,739]

1 hour ago, powerpuff said:

Only US citizens are guaranteed entry into the US.

LPRs are legally guaranteed entry.