K-visas/the dilemma facing  a US citizen who wishes to bring in an overseas spouse or fiancée

The dilemma facing overseas spouses and fiancées of U.S. Citizens

The rules as they apply to the issuance of visas to overseas spouses or fiancées of US citizens are unusually legalistic and hard to grasp for the average lay person and even many lawyers

Essentially, once someone is either married to a US citizen or alternatively is a fiancée of a United States citizen AND want to travel to the US to join their spouse or future spouse AND apply for a green card once there they are no longer considered legally eligible for a Tourist visa or even a visa waiver.

NOTE that if that individual wishes to make a temporary visit to the US, even to get married, and return to their home country afterwards that is perfectly permissible. They key factor is that s/he did not intend to remain permanently in the United States upon presenting his or her Tourist visa to an immigration official upon entry.

The so called problem of 'Immigrant intent'

Someone who wishes to reside permanently in the United states in deemed to have immigrant intent as opposed to a temporary visitor, such as a bona fide tourist of businessman who has a nonimmigrant or temporary intent to remain in the United States.

if a spouse of a Us citizen of fiancée applies for a 'green card' through the adjustment of status process shortly after entering on a tourist their application will be denied if the Immigration service determines that upon entering on a Tourist visa they in fact committed 'visa fraud'.

How id visa fraud determined?

There is no hard and fast rule, however the 30/60/90 day rule is usually applied. 

In short, if the individual applies for permanent residence within 30 days after arriving on a tourist visa or visa waiver fraud is all but conclusively presumed. between 30 and 60 days fraud is presumed but can be rebutted (disproved) by the applicant. Between 60 and 90 days the Immigration Service has essentially establish fraud. After 90 days the issue seldom arises.

If visa fraud is found what is the sanction?

At the very least the applicant will be required to return to their home country form where they can apply for the correct visa, be it K-1 fiancée or K-3 spousal. In the worst case scenario a finding of fraud could bar them form returning to the United Sates altogether.

The basic fact is DO NOT ATTEMPT TO USE A TOURIST VISA TO ENTER THE U.S. if you intend to remain there permanently.

Therefore, a US citizen wishing to bring a non-citizen fiancée or spouse permanently to the United States has three options.

1. Apply for a K-1 fiancée visa.  

2. Apply for a K-3 spousal visa If already married to the overseas spouse. This can be done either in the US or more likely in the fiancées home country.

3. Once married apply  directly for a 'green card thru' the  US Embassy or consulate in the spouse's home country, if they will accept such an application.

Which route is the more convenient or fastest?

 The answer to this question depends on where the US citizen and spouse intend to reside in the US.  For example in California, the longest route is thru the K1 visa whereas in the North Eastern US the K-1 processing times are much faster.

There is no uniform policy as to what particular US embassies or consulates will accept. Inquires have to be made so as to determine what their current policy is.