Your Guide To Marrying A Non-U.S. Citizen And How A Prenup Can Help

Nov 23, 2023 | Immigration

Embarking on a romantic journey with someone from a different country is an exciting adventure, marked by passport stamps, tearful airport farewells, emotional highs and lows, and a bit of legal wizardry. We get it – it’s a whirlwind! That’s why we sat down with the seasoned immigration attorney Julia Funke, Esq., to come up with a guide to tying the knot with a non-U.S. citizen. From unraveling the visa possibilities to understanding the role of a prenup, dive into this article to discover all you need to know about bringing your beloved to the U.S.


Which Visa To Choose

Choosing the right visa for bringing your partner to the United States involves understanding the available options and picking the one that matches your specific situation. Most people tend to incorrectly believe that the K-1 visa is the best and only option (we’re looking at you, 90-Day Fiancé), but that’s not true! There’s other options that may be even better than the K-1 visa for your specific situation. Here are three key visas for you to consider:


K-1 Visa – Fiancé Visa

The K-1 visa is designed for couples that are not yet married and want to get married in the U.S. It allows the non-U.S. citizen fiancé to enter the country with the requirement that they marry their American partner within 90 days (hence, the name of the show, 90-Day Fiancé). 

The main disadvantage of a K-1 visa is that it can take a long time to be approved. Depending on a variety of factors, it could take years until the non-U.S. citizen is allowed to step foot on American soil through the K-1.  Currently, as of November 2023, the average processing time for an I-129F petition (i.e., the form you file in the U.S. to get a K-1 visa) is 12.5 months. Once it is approved, you then have to wait for an appointment at the consulate to obtain the physical visa before you can travel into the U.S. Then, after getting married within 90 days,  you will have to file even more paperwork to become a green card holder, which can take another year or so. The couples that tend to choose this visa are ones that may want to do a trial run for their marriage, which is why the 90 days is useful to them. Otherwise, this is a fairly lengthy, frustrating process. 


CR-1 Visa – Spouse of a U.S. Citizen

CR-1 visas are for couples who have been married less than two years. The green card issued will be a conditional green card, which is valid for 2 years rather than the normal 10 years. Because it is a newer marriage, the green card is issued for a shorter duration so USCIS can verify the validity of the marriage before issuing the 10-year card. With a conditional green card, the couple will file an I-751 petition to remove the conditions on the green card prior to the 2 year expiration. This entails submitting evidence that the marriage is valid and continues to exist. After completing this process, USCIS will issue a 10 year green card. 

For this option, the couple can go ahead and get married and then file the paperwork. If the foreign spouse is already in the U.S. based on a different visa category (a work visa, student visa, etc.), the foreign spouse can adjust status within the U.S. to become a legal permanent resident. If the foreign spouse is living abroad, the U.S. citizen will file the necessary paperwork within the U.S., after which the foreign spouse will complete the consular process abroad and enter the U.S. as a green card holder. 

The advantage of a CR-1 visa over a K-1 visa is your foreign partner will enter the U.S. as a green card holder, rather than having to file more paperwork and wait another year or so to complete the green card process. This is also usually a less expensive route, since you are only completing one process rather than two separate processes with a K-1 visa.


IR-1 Visa – Immediate Relative (Spouse) of a U.S. Citizen

Similar to the CR-1, the IR-1 visa is for spouses of U.S. citizens. However, it is intended for couples who have been married for at least two years, acknowledging the longevity of their relationship. This process is identical to the CR-1 visa process described above – the only difference is that the green card issued will be for ten years, rather than two. In other words, there won’t be any conditions on the green card. If you qualify for this visa, this is the best option since you will only have to go through one process and then you have your ten year green card. 

Navigating the intricacies of these visa options can be tough, we know! That is why seeking guidance from an experienced immigration attorney can help ensure you make an informed decision based on your unique circumstances. Each visa category serves a specific purpose, so carefully evaluating your situation will lead to a smoother and more successful process for bringing your partner to the U.S.

Book your FREE 15 minute consultation with an immigration lawyer today

What is the Affidavit of Support

If you are bringing your partner to the U.S., you may have heard of a little something called the Affidavit of Support. Many people tend to miss this little bombshell of a document in the huge stack of paperwork they have to fill out for immigration purposes. But don’t be fooled by its seemingly innocent appearance. It’s an extremely important and impactful document to understand. It is essentially a contract between the U.S. citizen and the U.S. government. You are saying that you will support your non-U.S. citizen spouse until they either (a) become a U.S. citizen themselves or (b) obtain 40 quarters of qualifying work under the Social Security Act, which is equivalent to 10 years of continuous work. Why? Because the U.S. government doesn’t want to be the one to support the person you bring to the U.S. if things go south in your relationship. So, yes, even if you get a divorce, you are on the hook for your spouse until they get citizenship or have 10 years of qualifying work. 


Complications of the Affidavit of Support

One major road bump for the Americans bringing over a foreign spouse is the Affidavit of Support. You’re essentially on the hook for your boo until they get citizenship. But… What if they never get citizenship? Is that a thing? Yes, unfortunately, it is.

What many people fail to understand is that your immigrant spouse can essentially stay on their “green card” indefinitely. (You see where we’re going with this, right?). So, if your partner decides to never get citizenship, and you get a divorce, you could be on the hook to support them via the contract you signed (the Affidavit of Support)…forever. That’s right, for-ev-er. Or at least until that person passes away, gains 10 years of qualifying work in the U.S., gets citizenship, or finds another sponsor. 


How does a prenup help? 

Enter the prenuptial agreement, a.k.a. a Love Insurance Policy. Well, it’s not exactly insurance, but you can think of it as your back up plan in case things don’t pan out the way you anticipated. This may be especially important for a person who is signing an Affidavit of Support. 

For one, signing a prenup can ensure that you limit yourself to just what is required in the Affidavit of Support should you ever divorce. In other words, that you don’t get taken to the cleaners in the divorce + have obligations under your requirement to sponsor them on their visa.

Two, a prenup can require your partner to start the citizenship process at a certain point in time. This alleviates the possibility of the immigrant spouse never getting citizenship, which would require you to financially support them…forever, even if you’re divorced.

Three, it can really make sure both partners are on the same page as one another before entering into a marriage. Putting everything on paper and getting it in writing (like when the immigrant spouse will start the citizenship process) is a great way to align expectations, facilitate communication, and potentially prevent future conflicts. 


The bottom line 

The bottom line is marrying the love of your life shouldn’t be so complicated, regardless of what their citizenship status is in the U.S. However, the fact of the matter is that immigrating to the U.S. can get messy and typically requires tons of time, patience, and legal know-how. Thoroughly understanding your visa options, your Affidavit of Support obligations, and how a prenup can help is a great place to start your journey to love. 

You are writing your life story. Get on the same page with a prenup. For love that lasts a lifetime, preparation is key. Safeguard your shared tomorrows, starting today.
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