Comparison of Marriage Based US Immigration Choices (K1, K3, IR1 Visas & DCF)
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Each year tens of thousands of visas are issued to a spouse or fiance of an American Citizen so that they may move to the US and be with their loved ones. For a non US Citizen Fiancé(e) the most common way of bringing them to the US is a K-1 (fiance) Visa. For a non-US Citizen spouse there are several common ways to bring them to the US, each with their own Pro's and Con's. Listed below are the common ways to bring a non-US Citizen Fiancé(e) or spouse to the US as well as a few Pro's and Con's for each option.
Must be married within 90 days of entry. AOS must be filed in order to gain Legal Permanent Resident status. Failure to file AOS before I-94 expires accrues out-of-status days.
After entering the US, may file for AOS within two years or instead wait for I-130 to be approved and pursue IR-1 / CR-1 Visa.
Visa holder automatically becomes a Legal Permanent Resident after entering the US. Can work and travel freely.
US consulates typically only do this for US citizens who live overseas. DCF results in a IR-1 / CR-1 Visa.
Fiancé(e) Visa (K1)
In General
A K-1 Visa allows a Non-US Citizen Fiancé(e) to a US Citizen to legally enter the US and Adjust Status to become a Legal Permanent Resident. The process of obtaining a K-1 Visa starts by the U.S. citizen filing a form "I-129F: Petition for Alien Fiancé(e)" with the USCIS (United States Citizenship and Immigration Services). The USCIS is responsible for processing this petition and if approved will forward (via the National Visa Center) the petition to the consulate serving the location of the Non-US Citizen Fiancé(e).
Upon receiving the approved I-129F petition, the US Consulate will contact the Non-US Citizen Fiancé(e) and request certain information be gathered and provided to the US Consulate. Additionally there will be an actual "visa interview" in person (at the consulate) for the K-1 Visa. If the embassy approves the K-1 Visa, they will issue the visa typically within two to three days after the interview.
Once the Non-US Citizen Fiancé(e) receives the K-1 Visa they may enter the US any time within six months of the visa being issued. Arriving in the US it is important to note that they must get married to the US Citizen who petitioned their K-1 Visa within 90 days and file for Adjustment of Status (AOS) to become a Legal Permanent Resident. If they fail to do this within 90 days of entry into the US they may accrue unlawful status inside the US as defined by the USCIS. This may potentially affect future immigration benefits they file for. You may view theK-1 current and historical processing time trendsto get a better idea of the time the process may take at various stages. Unless an engaged couple decides to get married, this is their main visa option. If they decide to get married they will need to file for a K-3 or IR-1 / CR-1 Visa instead.
Pluses
"Relatively" fast process. As fast or quicker than K-3 and/or IR1 / CR-1 Visas (which are only available to married couples).
Once in the US and married, the K-1 Visa Holder may obtain a social security card, Employment Authorization Document (EAD), and seek employment legally within the US. As a note, typically an EAD is applied for at the same time as the K-1 Visa Holder files for AOS (after marriage). Generally an EAD is issued within 90 days of the application being received.
The K-1 Visa allows time for an engaged couple to be together in the US before marriage since the visa is good for 90 days. The Non-US Citizen Fiancé(e) must marry the US Citizen and apply for AOS to remain in the US. If they do not marry there are no other methods to remain in the US and they must return home.
Minuses
The K-1 Visa Holder will need to apply for Advance Parole (AP) if they wish to travel outside of the US while their AOS application is being processed and not yet approved. Leaving without an approved (and in hand) AP will result in abandoning the pending AOS application and require filing for a new visa (either K-3 or IR-1/CR-1) to re-enter the US.
In nearly all cases, if the marriage fails prior to the K-1 Visa Holder's AOS application being approved there are no other options for legally remaining inside the United States; the K-1 Visa Holder will be required to leave the US.
A K-1 Visa Holder only has "valid status" for 90 days after they enter the US (and must be married and apply for AOS by that time to not accrue "unlawful status". This 90 day window may not be extended.
A K-3 Visa allows a Non-US Citizen (spouse) married to a US Citizen to legally enter the US and adjust status to become a Legal Permanent Resident. If a couple wishes to pursue this visa they must be legally married (or get married before starting the process). The couple may have previously been married either outside or within the US (the location does not matter as long as the marriage was officially recognized in the location in which it occurred).
The process of obtaining a K-3 Visa starts by the U.S. citizen filing a form "I-130: Petition for Alien Relative" with the USCIS (United States Citizenship and Immigration Services). This form is also filed to petition for an IR1 / CR1 Visa (see next section). What makes the K-3 Visa special is that instead of waiting for the I-130 to be approved, the US Citizen may, upon receipt of the I-130 being accepted by the USCIS, file an I-129F petition with the USCIS indicating the desire to obtain a K-3 Visa. This option has the benefit that the I-129F for a K-3 Visa will often be processed faster than the "underlying" I-130. This means that the time waiting for the Non-US Citizen Spouse to enter the US may be less. The USCIS is responsible for processing the I-129F and if approved will forward (via the National Visa Center) the petition to the consulate serving the location of the Non-US Citizen Spouse.
The remainder of the process at the embassy is similar to the K-1 Fiancé(e) Visa process. After the K-3 Visa is approved byt he US Consulate, the Non-US Citizen Spouse can enter the US with their status as a "K-3 Visa Holder" valid fortwoyears. They may freely travel in and out of the US as the K-3 Visa is a multiple entry visa. At any time within these two years they may file for and initiate an Adjustment of Status (AOS) process with the USCIS (to become a Legal Permanent Resident). If so they will be deciding to Adjust Status within the US (just like a K-1 Visa Holder would) and will follow the normal AOS process which may take six months or even longer in some regions of the US. Alternately, if prior to filing for AOS the K-3 Visa Holder has their underlying I-130 petition approved by the USCIS they may instead (of filing for AOS) choose to return to their consulate abroad to interview and obtain an IR-1 / CR-1 Visa. In this case they would abandon their status as a K-3 Visa Holder and re-enter the US as a IR-1 / CR-1 Visa Holder. Entry into the US as a IR-1 / CR-1 Visa Holder results in the immediate conversion to becoming a Legal Permanent Resident (your green card is mailed out shortly after arrival in the US).
You may view theK-3 current and historical processing time trendsto get a better idea of the time the process may take at various stages. A married couple may also file solely for a IR-1 / CR-1 Visa instead of a K-3 Visa. See the next section for details.
Pluses
Once in the US, may apply for a social security card and an Employment Authorization Document (EAD). Employment may be freely obatined while the K-3 Visa and EAD are valid.
NO Advance Parole (AP) (unlike a K-1 Visa Holder needs) is required for travel to and from the US while the K-3 Visa is Valid. K3 and K4 visa recipients are in valid status for 2 years and the visa is a multiple re-entry visa.
K-3/K-4 visa holders may extend status by showing strong intent to eventually adjust status.
The K-3 Visa Holder may apply for Adjustment of Status within the US BEFORE the underlying I-130 petition is approved.
Generally allows applicant to enter the US faster then waiting for the I-130 to be approved and the IR-1 / CR-1 visa to be issued.
Minuses
will have to file Adjustment of Status after entry to the USoronce their I-130 petition is approved (while their K-3 Visa is valid) return to their home country to be interviewed for an IR-1 / CR-1 Visa.
May only adjust status based on marriage to original US Citizen petitioner.
If the marriage fails before Adjustment of Status is complete, the K-3 Visa Holder will have to leave the US. K-3 and K-4 visa holders cannot change to another visa status and stay in the US if the marriage fails.
An Employment Authorization Document (EAD) must be obtained and there will be some waiting time before the K-3 Visa Holder can work. The exact amount of time for for an EAD to be approved is roughly 90 days.
Spousal Visa (IR1 / CR1)
In General
A IR-1 / CR-1 Visa allows a Non-US Citizen (spouse) married to a US Citizen (see note at end) to legally enter the US, immediately becoming a Legal Permanent Resident upon entry. This option may take longer than obtaining a K-3 Visa. If a couple wishes to pursue this visa they must be legally married (or get married before starting the process). The couple may have previously been married either outside or within the US (the location does not matter as long as the marriage was officially recognized in the location in which it occurred).
The process of obtaining a IR-1 / CR-1 Visa starts by the U.S. citizen filing a form "I-130: Petition for Alien Relative" with the USCIS (United States Citizenship and Immigration Services). This form is also filed if a couple intends to obtain a K-3 Visa (see above section). The USCIS is responsible for processing the I-130 and if approved will forward the petition to the National Visa Center (NVC). The NVC may request certain information be provided to them (initial case processing) prior to forwarding the completed package to the consulate serving the location of the Non-US Citizen Spouse.
The visa processing at the US Consulate is similar to other family visas such as the K-1 and K-3 however the IR-1 / CR-1 Visa is an "Immigrant Visa", which means the Non-US Citizen Spouse will upon receiving their visa and entering the US immediately become a Legal Permanent Resident. Their "green card" will be mailed to them shortly after their arrival. As a Legal Permanent Resident they may work and travel to and from the US freely using their "green card" and status as a Legal Permanent Resident.
You may view theIR-1 / CR-1 Visa current and historical processing time trendsto get a better idea of the time the process may take at various stages. A married couple may also file for a K-3 Visa while waiting for their I-130 to be approved. This is done by filing an I-129F after the I-130 has been received by the USCIS. See the above section for details.
Note:Technically, a US Legal Permanent Resident can apply for this visa for their Non-US Citizen Spouse however the waiting time is up to five years. They can file and wait for a visa number to become available (again up to five years) or wait until they themselves become a US Citizen -- whichever comes first will allow the visa process to move forward immediately.
Pluses
This is an "Immigrant" Visa and will as such allow the applicant to arrive in the US as a Legal Permanent Resident.
After entry into the US, as a Permanent Resident they may seek employment without restrictions. No Employment Authorization Document (EAD) is required.
After entry into the US, as a Permanent Resident they will not require special permission to leave the US for travel. No Advance Parole (AP) document is required.
IR1/CR1 Visas often do not take much longer than the K-3 Visa option. The benefit of entering the US and immediately becoming a US Legal Permanent Resident (Green Card Holder) to many people is worth the additional small wait in time.
Minuses
Separation from family may be longer than if filing for a K-3 Visa (or K-1 visa for a non-married fiance). The applicant will most likely not be able to enter the US while their IR1-CR-1 Visa is being processed.
Direct Consular Filing
In General
Direct Consular Filing (DCF) allows a US Consulate to process a IR-1 / CR-1 Visa (for a Non-US Citizen (spouse) married to a US Citizen) without having to wait for the USCIS in the US to process the required paperwork. Instead all paperwork is filed and processedAT THE CONSULATE. This is often a much faster way to get a IR-1 / CR-1 Visa however there is one requirement that must typically be met:
To Qualify: U.S. consulates will typically only do this for US citizens who are Legal Residents of the country (typically for at least six months) in which the US Consulate sits (overseas). You will be required to show proof. This can be any country with a US Consulate (that the US Citizen is a resident) and need not be the country in which the Non-US Citizen Spouse lives.
If the US Citizen qualifies to file using DCF, in most cases it is the quickest route to obtaining a IR-1 / CR-1 Visa. Be sure to contact your respective Consulate to determine if this option is possible. Do not assume it will be. Once the IR-1 / CR-1 Visa is approved their rights of the IR-1 / CR-1 Visa Holder are the same as if they had gone through the USCIS in the US initially. The Non-US Citizen Spouse will upon receiving their visa and entering the US immediately become a Legal Permanent Resident. Their "green card" will be mailed to them shortly after their arrival. As a Legal Permanent Resident they may work and travel to and from the US freely using their "green card" and status as a Legal Permanent Resident.
Pluses
Potentially (if qualified) the quickest route to admission to the US and to Legal Permanent Resident in the US, based on marriage. The process usually takes less than 3 months
The IR-1 / CR-1 Visa Holder has the same rights as if they had gone through the USCIS in the US initially.
Wait times for the visa interview can be one week to three months, which is still faster than other marriage based visa options!
Minuses
Consular policies can change over time, and one should always confirm with the consulate that they will do this process.
US Citizen must show proof of US domicile/intent to reestablish domicile to qualify as a Sponsor for the I-864.
Additional Notes on DCF
Notes about DCF:
To find out whether you can file a petition at a specific post abroad, you must ask that post. For information on how to contact the post, please visit their specificU.S. Embassy or Consulate website.
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