Fiancee Visa vs. Spousal Visa – Which Is Better?

by Emmanuel S. Tipon, Esq.

“Is the affidavit of Monica Lewinsky saying that ‘there is absolutely no sex of any kind in any manner, shape or form, with President Clinton’ true or false?,” President Bill Clinton was asked during a grand jury investigation of his alleged sexual misconduct in office.

“It depends on what the meaning of the word ‘is’ is”, replied Clinton.

I liked Clinton. Speaker Nancy Pelosi introduced me to him during a fundraiser in San Francisco when he first ran for President. “This is Al Tipon, you both went to Yale.” I had contributed to his Paula Jones defense fund because I did not believe that he dropped his pants when Paula Jones entered the hotel room where he was waiting for her. No Yale man drops his pants at the mere sight of a woman – and she was not even pretty.

Clinton was reputed to be a womanizer. There is nothing wrong with that if the women like it and you do not force yourself upon them. What made me unlike him was his denying it – in a philosophical way. If a woman has given you sexual pleasure – whether via the conventional way or unconventional way, it is an insult to the woman to deny that you had no sexual relationship. I do not like lying. Lying down – yes. But not lying.

In the field of immigration, the question has been asked so many times: Which is better – to file a fiancee visa petition for your sweetheart who is living abroad or go abroad, marry your sweetheart there, and then come back to the U.S. and file a spousal visa petition.

Our answer is: It depends on what the meaning of the word “better” is.

No, no, no. We are not trying to ape Clinton. What do you really mean by “better”? Do you mean “cheaper,” or “faster,” or something else? Everyone has his or her own concept of “better”.

SimilaritiesThe filing fee for a fiancee visa petition and a spousal visa petition is the same – $535.00. A number of lawyers charge the same fee for either kind of petition – around $2,000. The ultimate objective is the same – to bring your sweetheart to the U.S. with the hope that you will live happily ever after.

Differences
Form I-129F, Petition for Alien Fiance(e), is used for a fiancee visa petition, while Form I-130, Petition for Alien Relative, is used for a spousal visa petition, together with a Form I-130A to be filed by the alien spouse.

A fiancee visa petition is for a nonimmigrant visa, while a spousal visa petition is for an immigrant visa.

Background checks are less stringent for a nonimmigrant visa than for an immigrant visa.

Only a U.S. citizen can file a fiancee visa petition, while a U.S. citizen or lawful permanent resident can file an immigrant visa petition.

Only the petitioner can file an affidavit of support for a fiancee, hence his income must be sufficient to support himself and his fiancee, while the petitioner and a co-sponsor (if the petitioner’s income is insufficient) can file an affidavit of support for a spouse.

The fiancé visa petitioner and the fiancee must have seen each other in person within the last two years before filing the Form I-129F. There is no such requirement for filing Form I-130.

The fiancé visa petitioner and the fiancee must establish that they have a bona fide fiancé-fiancee relationship, but they are not required to submit proof of sexual relations, cohabitation, and possession of joint documents. On the other hand, the spouses must establish that they have a bona fide marriage which entails more proof including consummation of marriage, cohabitation, the submission of documents in their joint names such as bank accounts, rental agreements, insurance policies with the other as beneficiary, etc.

The fiancee beneficiary must write a declaration stating that such fiancee will marry the petitioner within 90 days after her admission to the United States. No such declaration is required of a spouse.

The fiancé visa petitioner has 90 days to live with and observe the fiancee and determine if they are compatible and they can live together as husband and wife. As one wit remarked, “you do not buy a car without a test drive, not even a Rolls Royce.”

If the petitioner does not like the fiancee, he can buy her a one-way ticket and send her back home without marrying her. In the case of a spousal visa petitioner, he does not have that 90-day test drive period. If he cannot get along with his spouse, he has to divorce her, thereby incurring more expenses. The unfortunate alien spouse, if a Filipino and goes back to the Philippines will still be considered married to the petitioner because there is no divorce in the Philippines. She cannot remarry in the Philippines. She would have to file a petition for recognition of the foreign divorce – another expense. Or she could look for a U.S. citizen fiancé who could petition for her.

The fiancee beneficiary, after marrying the petitioner in the U.S., should file a Form I-485, Application to Register Permanent Residence or Adjust Status, in order to convert her nonimmigrant status to permanent resident status and get a green card. The spouse does not need to do that. She is arriving as an immigrant and is given a green card shortly after arrival.

The fiancee beneficiary who obtains a green card must file a Form I-751, Petition to Remove Conditions on Residence, within the 90-day period before the green card expires. The spouse must also do that if she arrived in the U.S. within two years after their marriage abroad, but if the spouse arrived after two years following their marriage abroad, the spouse does not have to file Form I-751.

A Filipino said that he had been told by a non-Filipino lawyer that filing a spousal visa petition is better because the spouse can work immediately upon arrival while the fiancee cannot, because she has to apply for adjustment of status. Sin verguenza. Walang hiya. Are you petitioning for someone for the purpose of making that someone work? Why, can’t you support yourself and that someone you brought to the U.S.?

One day an Ilocano came to the office with an attractive younger woman whom he introduced as his wife. “What do you do?” I asked her. “Oh I just stay at home, I don’t work,” she replied. “Why not?” I asked.  “You ask my husband,” she said. So I asked her husband and he replied. “Why should I make my wife work. I can support her. As you can see, she is beautiful.  If she goes to work, some playboy might see her, court her, and take her away. I will have lost my investment.”

Which Is Better?
So, which is better? You be the judge, based on what is your concept of “better”. Whatever you do, remember that marriage is “for better or for worse.” It has been said that “mahirap ang nag-iisa,  pero mas  mahirap kung may asawa ka na masama.” (“It is difficult to be alone, but it is more difficult if you have a wife who is bad.”).

ATTY. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publisher and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon.  They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m.  Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645.  E-Mail: filamlaw@yahoo.com. Website: https://www.tiponlaw.com.

The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship.)

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