This post will discuss two types of Immigrant Visas available for a South Korean Spouse or Fiance:
- CR-1/IR-1 Spousal (Immigrant) Visa
- K-1 Fiance (Immigrant) Visa
This Post will not cover the K-3 Immigrant Visa, due to the low approval rating (i.e. less than a dozen worldwide). A Related Post can be found here.
In order to make navigation easier, the following items can be clicked for a drop-down to occur:
– What Documents are required?
Our office has an Immigration Checklist here: https://www.fickeymartinezlaw.com/immigration-checklist/
– Are there any Consular Interview instructions?
The Seoul Embassy provides the following instructions for consular interviews: https://travel.state.gov/content/travel/en/us-visas/Supplements/Supplements_by_Post/SEO-Seoul.html
– South Korea Birth Certificate Guidance:
South Korea Birth Certificate Requirement for US Immigration
– What if a filing is already submitted, and taking too long, how can the average processing time be checked?
The below blog post helps locate the USCIS Tool to see up-to-date processing times. If a filing is taking too long, it is best to see if it is processing at the same pace as others.
– What if there is a baby, child, newborn of a US Citizen?
Many believe the baby or newborn would need a visa to enter the US. However, any children of US Citizens may already be US Citizens and should use a US Passport for travel.
The Consular Report of Birth Abroad (CRBA) Process (More info found here: https://www.fickeymartinezlaw.com/immigration/children-born-abroad-how-to-get-citizenship-from-parents/) registers the birth at the US Embassy in Seoul and provides the US Citizen child a US Passport, a US Social Security Card, and a proof of US Citizenship in the form of a CRBA Certificate that will never expire.
– Can a Spouse or Fiance just use ESTA and do Adjustment of Status in the US to get a Green Card?
Technically, No! ESTA is for a temporary visit to the US, and if avoidable, ESTA should not be used to permanently move to the US.
What if ESTA was used?
The Foreign Fiance or Spouse would experience many months of “waiting.” Adjustment of Status is slow, anywhere from 3 months to 3 years depending on the state. A long wait time, not having a driver’s license, and not being able to work can make the “ESTA USAGE” undesirable compared to just entering the US with a Green Card Visa.
Additionally, use of a “non-immigrant travel item” is 100% polar opposite to “immigration.” The US Government can bar and punish the misuse of ESTA, a non-immigrant item, when someone intends to Immigrate. CR-1/IR-1 and K-1 are immigration visas.
More info can be found here:
Tourist Visa and ESTA/VWP: Consular Processing Versus Adjustment of Status
– Can the Active Duty Military stationed in South Korea have their dependants or fiance use ESTA to Adjust Status in the US after PCS-ing back to the US?
No. Make plans to start the Consular process at least 6 to 12 months in advance.
Misuse of ESTA is:
- Risky (ESTA can be revoked mid-flight at a connection when passing through customs);
- Possibly two to three times slower than a Consular process like the CR-1/IR-1;
- I-601 waiver/fine may be imposed; and
- More Expensive.
Visa Specific Information:
CR-1/IR-1 Spousal (Immigrant) Visa
The IR-1 / CR-1 Spousal Immigrant Visa is the visa that would allow a South Korean spouse to immigrate to the US. The process has 2 general steps. First, the filing will undergo review and approval from USCIS. Once approved, the filing will enter Step 2 where it is transferred to the NVC and subsequently to the Consulate.
The following is a more in-depth overview of the process in its entirety:
- Part 1 – Petition to Recognize the Relationship – Submit the I-130 Electronically (Related Blog Post found here)
- Part 2 – Waiting Period – I-130 Pending awaiting a USCIS Officer to review the filing and supporting documents (Processing times Post found here)
- Part 3 – NVC Processing – Visa fees are paid online, DS-260 completed, and supporting documents uploaded.
- Part 4 – Consulate Interview – NVC provides the Seoul Interview day and time, the Embassy/Consulate Account would be Registered, the Immigrant Medical Performed, Documents Organized, and Interview Attended.
- Part 5 – Arrive in the US – Pay Immigrant Fee, Fly to the United States, Apply/Receive US Social Security Card, and Receive Green Card in the mail within 4 months after entry.
General Government Cost (as of October 2, 2020): $1185 or $1200
Average Processing Time (as of September 10, 2020): 10 to 12 months (with the bulk of processing time spent in the I-130 Petition)
The I-864 Affidavit of Support will be assessed according to the I-864P (Link found here: https://www.uscis.gov/i-864p). If you do not overcome the I-864P Poverty Level, then Assets would be required (Asset Explanation found here), or a Co-Sponsor would be required (Co-Sponsor found here).
What is the Difference of a CR-1 or IR-1 Visa? If the marriage is less than 2 years at time of interview, then a CR-1 Visa would be issued, conditioning the residence to a 2-year Green Card and requiring an I-751. (More information found here) If the marriage is more than 2 years at time of interview, then an IR-1 Visa would be issued and a subsequent Green Card would be valid for 10 years.
K-1 Fiance (Immigrant) Visa
The Fiancee Visa has 3 steps:
- Step 1: I-129F Petition filed with USCIS
- Step 2: DS-160 K-1 Fiancee Visa application filed with the US Embassy in Seoul, South Korea, which allows the fiancee to enter the US
- Step 3: I-485 Adjustment of Status filing with USCIS to receive a Green Card
Step 1 of the process essentially recognizes the relationship and confirms eligibility. Step 2 tests the fiance on the relationship and re-confirms eligibility. Step 3 confirms the marriage after entry on the K1 Visa and verifies that the marriage is for love and to start a life together. Once confirmed by USCIS, the K-1 adjusts status to Lawful Permanent Resident (aka Green Card).
What are the Eligibility Requirements for the I-129F Filing?
- The US Citizen wants to start the filing
- The Relationship is bona fide and with love
- The US Citizen and South Korean have physically seen each other (physically been in the same room, city, country) within the past 2 years
- The US Citizen and South Korean intend to marry with the K-1 Visa within 90 days after entry
- The US Citizen and South Korean are legally “free to marry,” meaning not married to anyone else
- The US Citizen has a stable income to support the couple, and that income overcomes Federal Poverty Level Guidelines.
How to prepare a Letter of Intent for this process:
Below is a template our office has created to assist:
How many Interviews are there?
There are generally 2 interviews.
- During Step 2 of the process, only the South Korean Fiancee must attend an interview. The US Citizen cannot attend or even enter the US Embassy, even if they are present in South Korea when the interview occurs.
- However, during Step 3 of the process, if a green card interview is scheduled, BOTH spouses must appear.
What is the I-134 and is it required?
The I-134 is an Affidavit of Support. The I-134 and its financial supporting documents are required in the Fiancee Visa Process. The affidavit of Support allows the US Embassy to evaluate the financial stability of the US Citizen and their ability to support the foreign fiance.
More information on the I-134 may be found here: https://www.fickeymartinezlaw.com/immigration/youtube-the-i-134-affidavit-of-support/
Can I travel to the US while my K visa is pending?
Typically, no! A pending K Visa process does not in of itself allow someone to travel to the US.
However, using ESTA/VWP or having a non-immigrant tourist visa to travel to the US can be used while the process is pending.
The K-1 Fiance Visa may create a 2-year Green Card. What should I know about that?
I-751 Joint Spousal Filing: In Love with your Best Friend and How to Prepare
If you require assistance with the Spousal or Fiance Visa process, please consider contacting our office to set up a consultation with our Immigration Attorney.
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