There are several different ways that a U.S. citizen can get permanent resident status for a spouse who is not a US citizen. Determining the most effective method of achieving this goal depends on your personal situation, the current location of your fiancé(e), and his or her immigration status, criminal history, and other background issues that may arise. The following information summarizes the three different ways in which you can obtain permanent residency for your non-U.S. citizen spouse.
If your fiancé(e) is currently living in a foreign country and you wish to marry him or her in the U.S., you can file Form I-129F, Petition for Alien Fiancé(e). If the U.S. Citizenship and Immigration Services (USCIS) approves the petition, they will send it to the National Visa Center for processing, which then sends it on to the U.S. Embassy or consulate nearest to your fiancé(e)’s residence.
Once the embassy or consulate receives the approved petition, your fiancé(e) will be interviewed for the fiancé(e) visa (also known as a K-1 visa). This visa allows your fiancé(e) to enter the U.S. legally for 90 days, so your marriage must take place within that 90-day period. Following your marriage, your spouse can file a Form I-485, Application to Register Permanent Residence or to Adjust Status to be approved for permanent residency in the U.S.
This type of visa can take a long time to process and the government fees can be costly. There are also strict restrictions on your fiancé(e) after they enter the United States that could cause issues.
Adjusment of Status
If your fiancé(e) is lawfully present in the U.S. on another type of visa, such as a student or work visa, you can file Form I-130, Petition for Alien Relative once you are married. Since an immigrant visa is immediately available for spouses of U.S. citizens, he or she may qualify to file a Form I-485 for adjustment of status to permanent residency at the same time as the filing of the Form I-130. New rules may prevent couples from filing for permanent residency too soon after entry to the United States, depending on their visa status.
However, if your fiancé(e) entered the U.S. without a visa, he or she would likely not qualify to adjust status to permanent residency while present in the U.S. You can still get married, and you can file a Form I-130 for your spouse, but your spouse may have to return to his or her native country and pursue an immigrant visa through a U.S. embassy or consulate. The danger with this situation, however, is that if your fiancé(e) has been unlawfully present in the U.S. for 180 days or more, he or she is banned from returning to the U.S. for up to ten years. It may be possible to apply for a waiver of this 10 year bar, but these require a showing of “extreme hardship” to a US citizen or permanent resident parent or spouse.
You should talk to an experienced immigration attorney to see if your spouse qualifies for any exception to this dilemma. There may be ways to avoid or minimize the risk of spending time apart.
If you married overseas or plan to marry overseas and your spouse still lives abroad, he or she can apply for a green card at a U.S. embassy or consulate. This is generally referred to as consular processing. You initiate this process by filing the Form I-130 on behalf of your spouse. Once USCIS approves the petition, it will be sent to the National Visa Center who will request additional forms and documents. If you are a permanent resident, your spouse is an immediate relative and there is no wait for a visa. Permanent residents, however, may have to wait months or years for a visa for a spouse.
Next, your spouse will pay the immigrant visa processing fees, file the Form DS-260 Application for Immigrant Visa and Alien Registration, and submit all necessary supporting documents. You must also submit an Affidavit of Support for your spouse to show that you make more than the poverty level. Once all information is submitted, the National Visa Center will forward the case to the appropriate embassy or consulate abroad.
Your spouse then will go to the embassy or consulate for an interview. If all goes well, your spouse will receive an immigrant visa, and be able to enter the U.S. as a legal permanent resident. The permanent resident card, or “green card”, will be sent after entry to the United States. This process could cause you to live apart from your spouse for a year or more, if you are living in the United States.
If your spouse is a citizen of Libya, Iran, Somalia, Syria, Yemen, North Korea or Venezuela, the Trump travel ban can add additional hurdles to overcome with this type of process. An attorney can help you overcome these issues and make sure that this process is successful.
Call Us Today at World One Law Group for the Legal Assistance You Need
World One Law Group devotes its practice to changing the lives of immigrants every day. We are here to help individuals, families, and employers achieve their immigration goals as effectively and efficiently as possible. Allow us to evaluate your immigration law needs and determine the best course of action for your situation. Call us today at (425) 250-8110 or email us at firstname.lastname@example.org and learn about what we can do to help.
Karol Brown is the managing attorney at World One Law Group in Bellevue, Washington. World One specializes in employment and business immigration, family-based immigration, naturalization, as well as asylum, DACA, VAWA, and U-Visa cases.