As a US immigration lawyer, I am asked this question at least once a week.
Frequently, I’ll hear from a young person, living somewhere in the US, who has fallen in love with someone overseas – either online, or maybe while on vacation or studying abroad. Sometimes the caller is a US citizen expat married to a foreign national, who is planning to move back to the US soon.
A common theme among these callers is an assumption that the process of bringing a (potential) partner to the United States should be fast and easy if you’re a US citizen. This is especially true for the latter group (married US citizens) who will often call a month (or even a week) before they are planning to return.
Unfortunately, this process is anything but fast and easy.
For starters, those who are engaged or thinking of getting engaged, will often ask about the fiancé visa. Sometimes, they’ve started this process on their own, and call because they can’t believe how long it’s taking. If there’s one piece of wisdom I can impart to you it’s this: AVOID THE FIANCE VISA AT ALL COSTS! It’s the worst visa ever. The idea of the fiancé visa makes sense – sponsor your fiancé to quickly come to the United States for 90 days, during which time you get married and then file for a green card. If only it were so simple. This visa in practice often takes longer to obtain than the spouse visa, and you must complete twice the paperwork (and incur twice the cost). And when you arrive in the United States you must get married in 90 days (there’s no extension) and then it can take 6 months or longer to receive work authorization during which time the government expects your new spouse to twiddle their thumbs. Not a great way to start your new lives together!
If the fiancé visa is out, what then?
If you’re already married, the spousal green card is probably the way to go. You should start the immigration process about 18 months or so before you want to return to the United States. The first step is to file an immigrant visa petition which can take 9 months or so. This does not give your foreign national spouse a visa, though – it merely makes one available for them, which is the next step – we call this consular processing. For your foreign national spouse to apply for an immigrant visa, he or she will have to submit the appropriate forms and documents to the US Department of State, await scheduling of an interview at a US consulate or embassy abroad, schedule a medical exam, appear for fingerprints, and complete a number of other steps. Consular processing typically takes anywhere from 3 months to upwards of a year or longer, depending on backlogs at consulates. In certain narrow circumstances, you can complete this process directly at the consulate, which can speed things up dramatically.
What if you’re not married and you’re not sure you want to get married, but you want to continue to explore the relationship? My best advice is to find a lawful way to spend time together. And if you want to do that in the United States, you should consider these options.
First, your foreign crush/ girlfriend/ boyfriend/ fiancé may be able to come to the US as a visitor, either on a valid B-2 visitor visa, or if they are from a visa waiver country (https://www.dhs.gov/visa-waiver-program-requirements), without a visa. The maximum stay for those who enter on a B-2 visa is 6 months (but it could be less, at the discretion of US Customs), and the maximum stay for those who enter under the visa waiver is 90 days. But generally I don’t recommend staying for the full validity in this situation, because it could create an impression of living in the US, which isn’t allowed as a visitor. Making several short trips – a weekend or so per month, a week or two per quarter – is a better strategy. Also, while coming in a visitor status is a great choice for “getting to know you,” entering the US with the intent of getting married and remaining permanently is considered a misrepresentation that could end in serious immigration consequences.
Aside from the visitor option, don’t forget about work visas. In fact, the best way for your partner to relocate to the United States for an extended period may be a work visa. If your foreign partner qualifies for a visa, like an H-1B or an L-1, that allows them to enter the United States with immigrant intent (i.e., the intent to remain here permanently if the opportunity to lawfully do so arises), this may be your best bet! The L-1 is for an intracompany transferee – think someone who works for Amazon or Hyatt – and for the small group of individuals eligible for this visa, provides a method to get to the United States usually within a few months (which is super-quick in the world of immigration). Sometimes for very large companies who file a lot of these visas, the process can even be completed in weeks.
The H1B – which is the basic visa for a degreed professional worker – is more complicated. If your foreign partner can line up a job with a university or non-profit research organization (which are “cap-exempt” organizations) they can also get to the United States in a matter of months. However, if they receive a job offer from a for-profit employer, they will have to enter the H-1B lottery, which is held once a year in March, for an employment start date of October, and which has maybe a 30% chance of selection.
The H and the L are called “dual-intent” visas meaning that even if your partner marches into the US embassy and declares their intent to marry you and remain forever in the United States, they should still get the visa. But these visas are very hard to come by.
A second category of visas, the E and O, are considered “semi-dual-intent” visas. If you disclose an intent to marry a US citizen and make a life in the United States, you’re probably not getting one of these visas. On the other hand, if the consular officer doesn’t have reason to believe you are planning to immigrate, they probably won’t ask about it. The O visa is for noncitizens of “extraordinary ability,” so the legal standard is high. The E visa is for investors or traders – think export/import. It’s costly and time-consuming to get an E visa for your own company, but if you find a company that’s already qualified for E status (most multinational companies) they may be able to sponsor you (note, though, the company has to have the same nationality as you i.e., if you’re French you’ll need to work for a French company in the United States).
Finally, there’s a whole host of non-immigrant visas – F1 student visas and J1 trainee visas being the most obvious choices. If your partner has the intent to immigrate to the United States, they won’t be able to get one of these visas. But if you met your US citizen girlfriend / boyfriend while they were on vacation, and you’re not sure whether you want to get married (or really, whether they’re the one for you), rushing into a fiancé(e) or marriage visa would be a bad idea, anyway. In this case my recommendation would be to explore visas that allow you to come to the United States, study or work, and spend some time getting to know each other.
Becki L. Young, co-founder of Grossman Young & Hammond, is a seasoned business immigration attorney with over 20 years of experience. She is known for her ability to craft creative solutions to complex legal problems. She has successfully facilitated the sponsorship of countless foreign professionals, trainees, interns, and individuals of “extraordinary ability” and regularly provides immigration law advice to clients in a broad range of industries.
