Spouse Immigration

Thousands of people emigrate to the United States each year, leaving loved ones behind with the hope that they will someday be reunited. 

The process involves an immigrant visa petition, processed with the U.S. Department of Homeland Security (DHS) and its agency, the U.S. Citizenship and Immigration Services (USCIS). This article will give you a comprehensive overview of the steps, requirements, and considerations involved in spouse immigration to the U.S.

What Is a Spouse?

Under immigration law, a spouse is a person you are legally wedded with. It is essential to know that while two people living together do not qualify as legal marriage for immigration purposes, common law marriage may qualify for immigration purposes. However, the validity of the common law relationship depends on the laws of the country where the common law marriage occurs.

The U.S. immigration law likewise does not acknowledge polygamous relationships. For immigration purposes, they regard only the first spouse as a spouse.

Visa Applications for Spouses of U.S. Citizens

If you are a U.S. Citizen petitioning your foreign national spouse to migrate to the United States, there are two ways to make it possible.

• Apply for an immigrant Petition for Alien Relative, Form I-130
• Apply for a K-3 nonimmigrant visa for the foreign national spouse

The first step is filing Form I-130 or the Petition for Alien Relative with USCIS. You can apply for your spouse to allow them to immigrate to the United States lawfully. Generally, people file immigrant visa petitions in the country. However, in some circumstances a U.S. Citizen living outside the country may also file an immigrant visa petition with the U.S. Consulate or U.S. Embassy.

Can My Spouse Come to the U.S. To Live While Their Visa Petition Is Pending?

Compared to Form I-130, K-3 visas are nonimmigrant visas for foreign national spouses. They can issue this visa to the foreign national spouse while waiting for the immigrant visa petition's approval. The K-3 visa aims to shorten the separation between you and your spouse. This visa will allow you to be together in the U.S. while processing the immigrant visas of your foreign national spouse.

The K-3 visa recipients often file for adjustment of status to lawful permanent resident (LPR). The immigrant visa application is filed with the DHS and USCIS. It is important to remember that if you and your foreign national spouse married outside of the U.S., you must apply for a K-3 visa in the country where you got married.

Visa Applications for Spouses of Lawful Permanent Residents (LPR)

You must submit Form I-130, or Petition for Alien Relative, regardless of whether your spouse is inside or outside the United States.

If you are a permanent resident, your spouse will be placed on a waiting list to receive an immigrant visa number. Due to the high volume of applicants and immigration restrictions, wait times are often two or more years. Your spouse should maintain a lawful status in the United States and have an immigrant visa petition or labor certification. If your spouse is not here legally, they may need to leave the United States to avoid accruing unlawful presence. Check the State Department Visa Bulletin to determine current wait times for when an immigrant visa number will be available for your spouse.

If your foreign spouse is outside the U.S., they will send the form for consular processing when they approve the marriage-based petition and the U.S. visa is available. Then, the U.S. embassy or U.S. consulate will give notification and information related to the processing.

Essential Considerations for Spouses With Conditional Residence

Suppose you marry, and they grant your spouse lawful permanent resident status within two years. In that case, your spouse will receive permanent resident status on a conditional or temporary basis. You and your spouse must apply using Form I-751 to remove the conditional status.

You must apply to remove conditional status within 90 days before your spouse's conditional permanent resident card expiration date. If you don't file within this time, they will terminate your spouse's legal resident status and might deport them.

For Unmarried Couples and Those With Kids

If you are a U.S. citizen and want to bring your fiance to the United States to marry and migrate, you can file for a K-1 fiancé(e) visa. This is a nonimmigrant visa for a foreign citizen fiancé(e) of a U.S. citizen. The K-1 visa allows the foreign national to enter the United States and get married within 90 days of arrival. The foreign national may then apply for adjustment of status to that of a green card holder after marriage. Qualified children of K-1 visa applicants may also receive a U.S. K-2 visa.

The following summarizes the steps and requirements for filing a K-1 and K-2 visa:

• File the petition. As a U.S. Citizen, you will sponsor the Petition for Alien Fiancé(e) (Form I-129F). The form will be filed with the USCIS office in the area where you live.
• Once the USCIS approves, they will forward the petition to the National Visa Center (NVC). The NVC will give a case number and forward your petition to the U.S. Consulate or U.S. Embassy in your fiancé(e)'s home country.
• The NVC will send you a letter once they've forwarded your fiancé(e) case to the U.S. Consulate or Embassy. After you receive the letter, you have to tell your fiancé(e) to do the actions below to apply for a Fiance visa and prepare for the interview.
• Qualified children of Fiance visa applicants may also apply for K-2 visas. A separate application should be submitted for each qualified child.
• Visa applicants should make sure to bring all required documents to the visa interview. A complete list can be found here.
• In preparing for the interview, your fiancé(e) has to schedule a medical examination and complete the vaccine requirements. An authorized physician will perform a medical examination. The U.S. Embassy or consulate will give additional instructions regarding the medical examination.
• During the visa interview, the consular officer may ask for proof that you have the financial capacity to support yourself and the visa applicant(s). The Consular Officer may ask you to present and submit an Affidavit of Support (Form I-134).

How Long Will It Take to Process My Spouse's or Fiancé(e) Visa?

When consular or immigration officials get the visa application, they assign a priority date. This shows the visa applications' place in line, which could give you an idea of how long the waiting period will be. You can also keep track of the estimated processing time with the USCIS website.

The length of the application process may vary depending on each case and circumstances. Sometimes, the immigration process gets delayed because the visa applicant failed to follow instructions carefully or supplied incomplete information. They might also require some visa applicants to undergo further administrative processing, which could delay the process.

Naturalization and Acquiring a U.S. Passport

Once your spouse and/or children have successfully immigrated to the U.S., they can acquire U.S. Citizenship through naturalization. After holding a permanent resident card for a certain period (three years for spouses of U.S. Citizens and five years for other cases), the permanent resident can apply for U.S. Citizenship. The FindLaw article What Does It Take To Become a Naturalized U.S. Citizen? discusses this topic in detail.

Reduce the Guesswork, Seek Legal Advice

Understanding U.S. Immigration laws can be a challenging task. Some requirements and rules apply differently in each visa category. It is also essential to consider the potential risk of deportation in case of violating immigration laws.

If you need guidance with immigration services, it is recommended to seek the legal advice of an immigration attorney. They can assist you with visa processes and understanding various areas of immigration. This includes green card applications for your spouse, child, children, and other family members. They can also assist in changing immigration status from resident to U.S. citizen through naturalization.

Note that each case may ask for varying eligibility requirements. For further guidance, we recommend consulting an immigration lawyer near you.