How can I live in the US with my fiancee?
October 16, 2018 7:32 AM   Subscribe

I'm a non-US citizen trying to live with my US citizen fiancee in the USA. What should I do? There are some relevant details I'll include below the fold.

Currently, we both live outside the states, in Europe. We've only been engaged for a few months.

We're wondering whether it would be easiest to apply for a fiancee visa and then, assuming it's granted, reside in the states while waiting for a green card to come through, OR whether it would be easier to apply for a spousal green card and try and enter while that's being processed.

It seems like the former might be more practical, because the fiancee visa processing times are shorter, and being allowed to enter the US while a green card is getting processed is a discretionary thing, unlike with the fiancee visa where that's the visa's explicit function, but I really have no idea.

One additional resource: I'm a well-known enough artist that it would basically be no big deal for me to get an 0-1 visa. I was thinking that I could maybe do that, start in the states, and apply for a green card while I'm there, but, once again, no idea whether I can do this, and the USCIS website is confusing me.

posted by insteadofapricots to Law & Government (11 answers total) 1 user marked this as a favorite
You absolutely 100% need to confer with an knowledgeable and up-to-date immigration attorney. Trying to sort of USCIS stuff by yourself can land you in really hot water, especially in the current climate.
posted by griphus at 7:38 AM on October 16, 2018 [24 favorites]

Historically (ie, when I went through the process) I would recommend the first route with Fiancee Visa.

That was how we did it, and it was smoother* than I had originally thought. But, things have changed. If I were to do this again, I would seek the legal advice of an knowlegable attorney.

Feel free to DM if you have specific questions.

* It was time consuming, bureaucratic, a lot of digging for documentation on our relationship, medical information etc. But all in all, pretty smooth.
posted by Rabarberofficer at 7:57 AM on October 16, 2018

A few years ago, I would have said you could sort this on your own if you were willing to do the reading and legwork and be conscientious and precise with your paperwork.

Today, I'm with griphus: get an immigration attorney.

The main benefit at this point of having an attorney would having someone who can make sure you can get everything processed with the minimum amount of delays, for the simple reason that US immigration law is being rapidly revised to eliminate as many avenues as possible for people to come here. Get through the process as fast as you can, while the process still allows you to come here at all.
posted by DirtyOldTown at 8:03 AM on October 16, 2018 [3 favorites]

Yes, consult an attorney and begin (now and retroactively) documenting any/all activity that would demonstrate you are in fact a couple and have a serious intent/plan to marry-- It would be prudent to demonstrate why you are delaying marriage until arriving in the US--having had friends who have requested this status in Ireland (reverse of your situation) you should anticipate that it may not be just a walk through.
posted by rmhsinc at 8:53 AM on October 16, 2018

My husband & I went through this, at one time I'd have said buy the nolo guide and do it yourself if you're confident at paperwork & form filling. But that was 10 years ago, now a days I'd get an immigration lawyer, times are a changing in the USA. I'd still get the guide so you know what they're talking about and it will give you a clear guide to the sort of documentation you will need to prove your relationship (think joint accounts, joint bills, proof of how long you've known each other etc) and you can start working on getting some of the information they'll need together to save time & money.

As an indication even 10 years ago when we applied we were the only people at the interview waiting room that day without a lawyer & a wheelie bag full of documentation, now a days I can't imagine it's gotten less complicated.
posted by wwax at 9:17 AM on October 16, 2018 [2 favorites]

I was born in the US. My husband is a naturalized citizen, born in a European country. He moved here to marry me, and came on a tourist visa - this was in 1985. We married and he applied for a green card using an immigration attorney. (This all happened within a year, and we presented copious documentation of our married relationship). Many years later he decided to become naturalized. So, no problem with legal authority to live here.

However, we are very seriously contemplating moving back to his original EU country because of the hatred and intolerance exposed and stoked by Trump and his enablers in Congress and the fake press. It will probably get much worse here before it (hopefully) gets better, and it is all too dispiriting and exhausting. It makes me want to cry with frustration and outrage, and my husband, who was so proud to become a citizen of such a generous and tolerant country, built from immigrants like himself feels even worse.

I hope you will think deeply about this move. It would doubtless prove fertile inspiration for an artist, and searing, important work springs from dissident responses, but it is wearying and depressing to live among it.
posted by citygirl at 11:25 AM on October 16, 2018 [1 favorite]

I have navigated this on my own with no lawyer, and have friends and family who have navigated this on their own with no lawyer, but given the changes just in the past two years, you absolutely positively need a lawyer. I'd never attempt it on my own, as things are now. Two years ago, any small mistake in submitting requests or documentation would seldom mean much worse than a scary "yellow letter" and then a delay in processing while it got sorted out. Now, it could sink your application entirely, with no refund of your (very expensive!) fees, and possibly jeopardise future applications.

So, yeah. Lawyer. Definitely lawyer. Lawyer who has lots of previous experience in K1 visa situations with clients from your particular home country. If anything goes awry, you want to have that level of security and support.

In the meantime: visit online immigration fora (do a search for "[YourCountryOfOrigin] To US Visa" and you'll find tons) to see what people are saying about the current process and to get timelines or lawyer recs. Review the requirements for proof of relationship. Take smoopy romantic pictures of yourselves in various locales and with various friends constantly, and save every bit of shared correspondence / documentation of travel and trips. Make a list of friends and family you could potentially ask for letters testifying to your relationship's validity -- you'll need at least one, and more is better. Consider planning a full-on wedding with family and photographer, even if you wouldn't otherwise want one -- that sort of documentation can be helpful. Map out a financial plan and ensure you can satisfy the government that your fiance can fully financially support you in the US -- this may mean having your fiance's family co-sign some documents, and it's good to know in advance what might be required, or if this will be possible.
posted by halation at 11:40 AM on October 16, 2018 [2 favorites]

While, in years past, you used to be able to do this yourself if you were relatively competent, those days are over. The current Administration has made this an incredibly high-stakes process that requires a very knowledgeable and up-to-date specialized immigration attorney. Don't take any more steps without identifying and hiring proper legal representation.
posted by quince at 1:43 PM on October 16, 2018 [1 favorite]

Totally agree with everyone above. Eons ago, I did this on my own with no lawyer, but these days? It is absolutely worth the money to get all of your options and ducks in a row. Once you have the information, if you want to do the rest on your own, great. But have the consultation first.
posted by widdershins at 2:31 PM on October 16, 2018 [1 favorite]

Get a lawyer; the administration is changing the rules with very little warning. Remember all those people who already had visas and green cards who were denied entry because the president issued a fiat while they were in the air? That order was upheld by the Supreme Court.

Think that doesn't apply to you because that was a Muslim ban and you're in Europe? I know someone has lived in the US for almost 40 years, owns a house here, is married to a naturalized US citizen, has two children who are US citizens from birth (one of whom works for a govt agency) ... and has to return indefinitely to his nominal home country at the end of the year due to a visa paperwork issue. Currently it's unclear whether he will ever be allowed back in.

You do not want to screw this up.
posted by basalganglia at 3:25 PM on October 16, 2018 [2 favorites]

To address the question that you actually asked: the processing time for an O visa, starting from when you submit the petition and ending with you receiving your visa petition and visa approval, will almost certainly be shorter than the K or CR1 visa process (especially if you're willing to pay for premium processing). You are allowed to adjust status from O to permanent resident once you're married and your spouse files a petition for you. This would probably work fine, but still, I wouldn't recommend it. First, even though you say it would be trivial to get approved for the O, it will certainly end up being significantly more expensive, and there tend to be steps involved in the process (gathering required testimonies and documentation, getting an opinion from an industry group, lining up an agent/sponsor, if applicable) that will lengthen the timeline. Second, the O visa is in a weird legal space that some immigration attorneys call "quasi-dual intent." This means that in order to be approved for it you don't need to show that you're maintaining a "residence abroad" - ie, you are allowed to pick up and move to the U.S. - but you do have to attest that your purpose of traveling during THIS TRIP is to reside in the U.S. temporarily. Under current policies, it is very unlikely that this quirk would affect your eventual immigrant visa application, but as others have pointed out, this administration has shown how policies can change quickly. To me, the extra uncertainty wouldn't be worth it.

I also wouldn't recommend trying to enter on ESTA while you have an immigrant petition pending. As you said, allowing entry on ESTA is discretionary, and ESTA does have an explicit requirement that you maintain a residence abroad. It's possibly to comply with this requirement in your situation, but what you'd essentially have to do is show that you continue to live and maintain your life in Europe, while using ESTA to temporarily visit your fiance in the U.S. If you can't convincingly show that this was the case, you could later be hit with a "misrepresentation" charge (because you aren't allowed to use ESTA to move to the U.S. even if you plan to return to Europe for your visa interview once your petition is approved) which could gum things up considerably.

So you should almost certainly give up speed and efficiency in order to "do it right," apply for the visa that fits your true purpose of travel, wait until you get it, and then move to the U.S. using that visa. I did want to mention that it's not always the case that K visas are processed more quickly than CR1 visas. That was true when the K visa was created, but since then processing times have changed and it's not always so clear-cut. K visas and CR1 visas are both processed in the U.S. at the national visa center as well as at the embassy or consulate in your region, but the way they split up the workload is different. That means that if your local embassy/consulate is currently experiencing a relatively light workload, CR1 visas might actually be processed more quickly than K visas. The only way to know for sure is to check with your local embassy/consulate. The other advantage of CR1 visas that might or might not apply to you is that you'll be able to work immediately upon entering the U.S., whereas with K visas you need to apply for and wait for a work permit before you can begin paid labor.
posted by exutima at 7:13 PM on October 16, 2018 [1 favorite]

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