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Petition for Foreign National Spouse
The U.S. immigration system allows U.S. citizens and lawful permanent residents (LPR, also known as green card holders) to apply for immigrant visas so their foreign national spouses can permanently immigrate to the United States.
Regardless of whether you are a U.S. citizen or lawful permanent resident, the basic immigration process for your foreign national spouse will be the same. However, there are some benefits that may only be available to U.S. citizens petitioning for their spouse.
The process has two main steps:
1. The U.S. citizen or lawful permanent resident petitions for their foreign national spouse to come to the U.S. by filing Form I-130 with USCIS.
2. If Form I-130 is approved by USCIS, this gives the spouse permission to apply for their lawful permanent status, also known as green card.
STEP 1: Petition for Your Spouse
Immigration applications for spouses are filed with the United States Citizenship and Immigration Services (USCIS) on Form I-130, Petition for Alien Relative. In filing this application along with the appropriate fee (currently $535), you are requesting permission from the U.S. government to let your spouse immigrate to the United States.
It is important to note that an approved I-130 petition does not confer an immigration status. It is merely a green light for your spouse to apply for their green card.
The I-130 petition is about your relationship with your foreign national spouse. This is the chance for you to establish a relationship between you and your spouse that will qualify them to immigrate to the U.S.
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 with I-130 petitions. A skilled immigration attorney can help you understand any potential issues in your case and help you avoid a Request for Evidence, or worse, a denial of your petition.
STEP 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 this process works depends on who you are (U.S. citizen or permanent resident) as well as where your spouse is located.
U.S. Citizens vs. Permanent Residents
U.S. citizens have an advantage over 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. As an LPR you will file the I-130 petition under the family second preference (F2) designation. These are subject to certain 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.
Applying for a Green Card in the United States vs. Abroad
The green card application process will vary depending on whether your foreign national spouse is applying while in the U.S. or while residing in their home country abroad.
If Your Spouse is in the U.S.
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.
For permanent residents, this option may not be immediately available depending on visa availability. You must consult with experienced attorney to evaluate your case.
If Your Spouse is Abroad
If your spouse is not in the United States, they will go through a process called “Consular Processing” which means they will apply 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 a bit more complicated 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 individuals come to the United States for another purpose, such as a visit, then change their intention and decide to get married and subsequently file Adjustment of Status after their entry. This is something that should be approached very carefully as it can be considered a form of immigration fraud. This is just another reason why you should seek skilled guidance of an immigration attorney.
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, your spouse will be given a “conditional” green card that is valid for two years.
In the 90 days before the conditional green card is set to expire 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 multiple interviews, is that the government is concerned with marriage fraud. Individuals have been known to marry a U.S. citizen for the sole purpose of securing a green card.
A skilled immigration lawyer can help you identify any issues in your case that might create a concern about marriage fraud and help you to address them before they become a bigger problem.
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 for a free consultation with an experience family-based immigration attorney and learn more about the process of petitioning for your foreign-born spouse.
Our immigration attorneys will review your forms and applications for thoroughness and accuracy. Immigration laws will continually change, but an experienced immigration attorney will always be able to give you the most up-to-date immigration advice you need.
Contact us today!