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Spouses and Fiancés
The U.S. immigration system allows U.S. Citizens and Permanent Residents (Green Card holders) to apply for immigrant visas so their foreign national spouses can permanently immigrate to the United States.
U.S. Citizens can apply for visas on behalf of their spouses and fiancés. These visas allow the foreign national intended spouse to enter the United States to marry the U.S. Citizen. Once the marriage occurs, the foreign national can apply for a Green Card.
The basic immigration process if similar for spouses and fiancés, however there are some key differences.
Process for Spouses
Regardless as to whether you are a U.S. Citizen or Permanent Resident, the basic process immigration process for your spouse will be the same, however, there are some benefits that may only be available to U.S. citizens.
1. PETITIONING FOR YOUR SPOUSE
Immigration applications for spouses are filed with the United States Citizenship and Immigration Services (USCIS) on Form I-130. In filing this application, you are requesting permission from the U.S. government to let your spouse immigrate to the United States.
The I-130 Petition is “about” your relationship with your foreign national spouse. The form and the required supporting documentation are generally intended to help USCIS confirm that you and your spouse are legitimately married. The question of “legitimacy” of marriages is one of the most common issues in I-130 Petitions. A skilled immigration attorney can help you understand the potential concerns in your case and help you avoid a Request for Evidence, or worse, a denial.
2. APPLYING FOR A GREEN CARD
When USCIS approves your spouse’s I-130 Petition, they become eligible to immigrate to the United States. How exactly this process works depends on who you are as well as the location of your spouse.
A. U.S. CITIZENS VS. PERMANENT RESIDENTS
U.S. Citizens have a “leg up” on Permanent Residents when it comes to immigration for spouses. Spouses of U.S. Citizens are considered “immediate relatives,” individuals for whom an “immigrant visa” is immediately available. This means that once the I-130 is approved the spouse of a U.S. Citizen will be immediately eligible to immigrate to the United States.
U.S. Permanent Residents may have to wait some time for their spouses to immigrate to the United States. They are subject to “per country” limitations on the issuance of immigrant visas. Each country in the world is allotted a certain number of immigrant visas to the U.S. each year. Your wait for visa availability will depend upon the country of birth of the immigrating spouse.
B. APPLYING FOR A GREEN CARD IN THE UNITED STATES VS. ABROAD
If your spouse is in the United States and there is an immigrant visa available for them, they will be able to file for a Green Card in the United States through a filing called “Adjustment of Status.” They will be able to stay in the United States while the application is pending.
The Adjustment of Status process usually culminates in an interview of you and your spouse at a local USCIS office. During this interview, a USCIS officer will talk with you and your spouse. The primary goal of this interview is to confirm the legitimacy of the marriage. If approved, your spouse will receive a Green Card in the mail in a few weeks.
If your spouse is not in the United States, they will go through a process called “Consular Processing,” applying for a Green Card at a U.S. consulate in their home country. This process is handled by the U.S. Department of State rather than USCIS. The process is involved and is often hindered by long wait times for government responses. A skilled immigration attorney can expedite Consular Processing and make it as painless as possible. Consular Processing will culminate in an interview at a U.S. Consulate in your spouse’s home country. After a successful interview, they will be given a visa to the United States and will receive a Green Card in the mail after they arrive in the country.
For many reasons, Adjustment of Status is more attractive than Consular Processing. Sometimes people try to come to the United States for another purpose, such as a visit, with the intention to file for Adjustment of Status when they arrive. This is something that should be approached very carefully as it can be considered a form of immigration fraud.
Process for Fiancés
The immigration process for fiancés is quite different than the process for spouses. However, the road still leads to the same place: a U.S. Green Card.
The first major distinction regarding the fiancé process is that it is only available to U.S. citizens. So, a U.S. Permanent Resident seeking to file for a fiancé would need to first obtain U.S. citizenship.
1. FILING A PETITION
The first step of the fiancé(e) process is to file an I-129 F Petition. Similar to the I-130 Petition, you will be expected to submit documentation as to the legitimacy of your relationship. Further, you will have to confirm your intent to marry once your fiancé(e) arrives in the United States.
2. CONSULAR PROCESSING
All fiancé(e)s have to go through consular processing which, again, is a visa application through a U.S. consulate. During this interview a consular official will question your fiancé(e) in order to confirm their intent to marry you in the United States as well as the legitimacy of the relationship.
3. ENTRANCE TO THE UNITED STATES
Once a fiancé(e) visa is approved, your intended spouse will be issued a short term (90 day) visa to enter the United States. Once they arrive in the United States, they will be required to marry you within 90 days.
4. ADJUSTMENT OF STATUS
After you are married your spouse will then be required to file for Adjustment of Status in the United States. During this interview a USCIS officer will interview you and your spouse in order to confirm the legitimacy of your marriage.
After a successful Adjustment of Status interview, your spouse will receive their Green Card in the mail in a few weeks.
A Note About Conditional Permanent Residency
If you and your spouse are married for less than two years at the time the Green Card is issued (a certainty in a fiancé(e) case), your spouse will be given a “conditional” Green Card with a two year duration.
In the 90 days before the Green Card expires you will be required to file a “Removal of Conditions” application. During this process, which may include another interview, USCIS will once again evaluate your marriage to confirm it is legitimate.
The reasoning behind the “conditional” Green Card, as well as the various interviews is the government concern over marriage fraud. Individuals have been known to marry a U.S. citizen for the purposes of securing a Green Card.
A skilled immigration lawyer can help you identical any issues in your case that might create a concern about marriage fraud and help you to address them.
How We Can Help
The attorneys of Sam Shihab & Associates have helped many families navigate the complexities of the U.S. immigration process. Please call or email us to consult with an attorney and learn more about the immigration process.