Fiancé Petition vs. Immigrant Spouse Petition

By Dennis E. Chua, Esq.
We are often asked the following question – would it be faster to bring my girlfriend or boyfriend here into the United States if I file a fiancé petition or should I just file for an immigrant spouse petition?

Filing a fiancé petition will bring your loved one here into the United States faster than filing an immigrant spouse petition. However, the US citizen may have to consider a number of factors before opting to file a fiancé petition over an immigrant spouse petition.

Before a US citizen can file a fiancé petition, he or she must had physically met the fiancé within two years before filing the fiancé petition. This is a mandatory requirement and the fiancé petition will be denied if the US citizen petition has not met this condition.

The US citizen petitioner then files the fiancé petition with the US Citizenship and Immigrations Services (USCIS). In the fiancé petition, the petitioner must establish that he or she has an ongoing relationship with the fiancé and that they have the intention of concluding a valid marriage within ninety days after the admission of the fiancé into the United States. The petitioner must also show that there are no legal impediments to the intended marriage with the fiancé. The petitioner must also provide a criminal record for crimes relating to domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, stalking, certain violent crimes, and crimes related to a controlled substance or alcohol where the petitioner has been convicted on at least three occasions not arising out of a single act. Where the petitioner was convicted of a specified offense against a minor, the fiancé petition will be denied unless a waiver is granted by the USCIS.

Once the fiancé petition is approved, it will be forwarded to the appropriate consular office. Current processing time indicates that it is taking the USCIS about five (5) months to approve the fiancé petition. Transmittal of the records to the appropriate consular office will take about a month and the fiancé can be interviewed by the consular office within one (1) to three (3) months.

Once the fiancé enters the United States, he or she needs to get married within ninety (90) days after his or her admission. Failure to get married within ninety (90) days may subject the fiancé to removal proceedings. Pertinent laws and regulations bar the fiancé to change or adjust his or her status other than through marriage to the US citizen petitioner who filed the fiancé petition. After their marriage, the fiancé may now file for an application for adjustment of status with the USCIS to have his/her status adjusted to a conditional permanent resident. Filing fees for the whole fiancé and adjustment of status process may cost around $1,465.

In contrast, if the US citizen decides to file the immigrant spouse petition, the US citizen must first get married to his or her loved one before the immigrant petition can be filed. The US citizen must establish that a marriage was validly entered into and that there were no impediments to their marriage. The immigrant petition must be filed with the USCIS. Once the petition is approved, the case will be forwarded to the National Visa Center for visa processing. The petitioner and beneficiary spouse would have to submit the appropriate visa fees; biographic page of the passport, police clearances, birth certificate, affidavit of support with the National Visa Center. Once the National Visa Center determines that all documents submitted are complete, it will then forward the case to the appropriate consular office so that the spouse beneficiary may be interviewed regarding his or her immigrant visa application.

Current processing time indicates that it will take the USCIS about five (5) months to process the immigrant petition. The National Visa Center usually takes three (3) to four (4) months to process the case. Once processing is completed, the case will then be forwarded to the appropriate consular office for the spouse beneficiary’s interview. The spouse beneficiary may be interviewed within two (2) to three (3) months. Filing fees for the immigrant petition and consular processing may cost around $825.

Considering the current processing time and costs involved, the US citizen petitioner may want to consider which petition he or she wants to pursue in bringing his or her loved one into the United States. In deciding which route to take, the petitioner may also have to consider other personal factors and circumstances which are specific to his or her case.

Atty.  Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) –  a full service law firm with offices in San Francisco, San Diego and Manila.  The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship.   The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California.  Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; dchua@ctvattys.com.