Which visa to choose, fiancé or spouse? Complicating factors (see details in post)

[AnaMaria&Andrew 0]

Summary:

My cousin (Venezuelan/Colombian, female, late 30s) and I (Colombian/American, male, also late 30s) fell in love during 2020. What was supposed to be her short, spontaneous vacation in the US turned into an unexpected, 10-month stay due to the COVID-19 pandemic. Not having grown up together or seen or talked to each other in over 25 years, we were more like strangers; but over the course of weeks that turned into months, we got to know each other, and we discovered to our astonishment that we are very compatible emotionally, intellectually, and in the context of living together.

Now, two years later and two continents apart, after many long-distance video calls and messages via WhatsApp, we realized that we want to spend the rest of our lives together in marriage (although without children, as neither of us wants any). Naturally, we would like to advance to this next stage of our lives as soon as possible. Our respective parents and the rest of the extended family have come around to our decision, as that is not so uncommon in Latin America.

But due to several complicating factors, we are struggling to figure out which visa to petition for, whether the fiancé or the spouse visa. The lawyer that we consulted said what most of us here know already, which is that the fiancé visa is faster, at least in theory, but was hesitant to fully recommend it due to the aforementioned complicating factors.

And, so, we are hoping that someone on this website or on these forums, ideally someone with similar circumstances, can offer us some guidance, because we don’t want to have to wait a year only to have the fiancé visa rejected, and then to have to wait yet another year after that when following up with a spouse visa.

The complicating factors:

• We are both first cousins. However, our marriage would be legal both in Colombia, where she has been living, and here in California, where I live.
• She already has dual citizenship: Venezuelan by birth, and Colombian from both of her parents. I have dual citizenship too, but American and Colombian.
• Because of the international COVID lockdowns, she both overstayed her visa and exceeded the total time that she was allowed to stay in the US (though it was less than 180 days) before she could return to Colombia.
• She had petitioned USCIS very early for an extension in order to not overstay her visa or exceed her stay in the country. They responded almost 12 months later, a couple of months after she had already returned to Colombia.
• We filed all the appropriate paperwork and corresponding evidence of her departure with USCIS, and they closed her case/file.

 

Thank you in advance for any advice or insights offered.

-Andew & Ana María

[nastra30 2,288]

IMO, marry and go the CR1 route. The timing recently between K1 and CR1 is mostly about the same and CR1 just seems superior. Marriage will be accepted by USCIS if it is done legally where it took place. 

[Just Paul 4,595]

@Crazy Cat will stop by and give you a comparison list but what it boils down to is whether she wants (or needs to work) right away of if she can be unemployed for maybe over a year, 

[Crazy Cat 41,981]

Every couple has their own priorities, and each couple must decide which visa is better for their situation.

K-1        
    More expensive than CR-1    
    Requires Adjustment of Status after marriage (expensive and requires a lot of paperwork)    
    Spouse can not leave the US until she/he receives approved Advance Parole (approx 6-8 months)    
    Spouse can not work until she/he receives EAD (approx 6-8 months)    
    Some people have had problems with driver licenses, Social Security cards, leases, bank account during this period    
    Spouse will not receive Green Card for many months after Adjustment of Status is filed.
    A K-1 might be a better choice when 18-21 year old children are immigrating also
    In some situations, marriage can affect certain Home country benefits, making a K-1 a better choice   
    A denied K-1 is sent back to USCIS to expire
    

CR-1
    Less expensive than K-1    
    No Adjustment of Status(I-485, I-131, I-765) required.    
    Spouse can immediately travel outside the US    
    Spouse is authorized to work immediately upon arrival.    
    Spouse receives Social Security Card and Green Card within 2 or 3 weeks after entering the US    
    Opening a bank account, getting a driver's license, etc. are very easily accomplished with GC, SS card, and passport.
    Spouse has legal permanent Resident status IMMEDIATELY upon entry to US.