Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
I’m a U.S. citizen who has been living and working temporarily in Germany for the past year.
I got engaged last month to my amazing partner – a German citizen — but I now need to return to the U.S. in a few months for work.
Should I get a K-1 visa for my fiancée so she can come with me when I return to the U.S., or should we get married and live apart until she can get a green card and join me in the U.S.?
—Searching for a Speedy Solution
These days, very few things are speedy when it comes to immigration — the deep backlogs created by the pandemic are the most recent challenges causing delays. My law partner, Anita Koumriqian, and I chatted about the backlogs, the K-1 fiancé/fiancée visa, and marriage-based green cards in a recent podcast episode, “Love and Immigration.”
Before the pandemic, it was faster for a fiancé or fiancée to get to the United States via a K-1 visa than for a spouse to get to the U.S. via a green card. But things have shifted.
Currently, U.S. Citizenship and Immigration Services (USCIS) is taking as long as one year to process K-1 visa cases. Following processing, getting a visa interview at a U.S. embassy or consulate will take even more time. Many U.S. embassies and consulates are open and processing routine visas and green cards, and interviews are being scheduled for several months out.
If you choose the K-1 visa, here is what to expect: Once your fiancée receives her visa, she will have to arrive in the United States within 60 days (the date will be printed on the visa foil in her passport).
When the pandemic was declared in 2020 and travel restrictions were put in place, many individuals who had approved K-1 visas could not travel to the U.S. and therefore missed that 60-day window. If your fiancée misses the 60-day window, she will have to schedule another appointment at a U.S. embassy or consulate, as well as get police clearance letters and another medical exam.
When your fiancée arrives in the United States on her K-1, you will have 90 days to get married. When married, you can then file for a marriage-based green card, which is typically the quickest green card to get. However, backlogs at USCIS have meant processing times have risen for marriage-based green cards as well. Depending on the state where you are living when you file for the green card, it can take anywhere from about five to 39 months – quite a broad range!
Marriage-based green card
Hopefully we have moved beyond any additional pandemic-related travel restrictions. Still, we often find it’s best for many couples to avoid any potential risk of a prolonged separation while waiting for a K-1 visa. At the moment, we are often recommending that people who get married in their country of residence apply for a marriage-based green card as soon as possible. A U.S. citizen can get married and start the green card process outside of the United States.
Your fiancée might still be able to visit you in the United States on a B-2 visitor visa for pleasure or ESTA while her green card is pending. One of the things she would need to be able to demonstrate to the U.S. Customs and Border Protection (CBP) officer at the airport or other port of entry would be that she intends to return to Germany before the expiration of her status.
Keep in mind that once you’re married, you and your wife will need to show that you married for love and not for a green card. You prove that by showing you have “braided your lives together,” as Anita says. Providing photos of your wedding, your travels together, and events with family and friends; showing a joint bank account that is actually used for the expenses of daily living; and listing both of your names on a lease agreement or mortgage loan and utility bills are some of the types of things that can be used to demonstrate that you married for love. Listen to my podcast episode “Engaged, Now What?” to gain more insight into the process.
Alternatively, if your fiancée qualifies for a work visa, such as an H-1B or O-1 visa, she could consider securing a job offer from a company in the United States that is willing to sponsor her.
Dual-intent visas are best because they permit somebody entry even if they have the intent of staying permanently in the U.S. The O-1A is often considered essentially dual-intent, and the H-1B is explicitly dual-intent.
Holders of single-intent nonimmigrant visas cannot intend to seek a green card in the U.S. They must demonstrate they intend to return to their home country before the visa expires. The U.S. Department of State has given consular officers the discretion to waive the interview requirement for H-1B, O-1, and a few other nonimmigrant visas through the end of this year. If your spouse is legally working in the U.S., you could consider filing an adjustment of status based on marriage after that.
If you decide to explore any of these strategies further, consult with an experienced immigration attorney who can guide you and your fiancée on the best options. The registration period for this year’s H-1B lottery begins on March 1, so if this is the route she decides to take, an employer will need to act fast!
All my best,
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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!