Filing for Spouse Visa in USA
Applying for US spouse visa can quickly become complex, with various routes available, stringent eligibility and process requirements and long processing times.
In this article, we look at the main immigration options if both spouses (non-US national married to a US citizen or US permanent resident) are living in the US. Different processes will apply for non-US spouses living and applying for a spouse visa from outside the US.
There will be many other considerations when examining the best spousal route for your circumstances, such as whether you have children, your non-US spouse’s nationality and current US immigration status. Taking professional advice is the safest way to ensure you explore all options and proceed with the best route for you and your family.
Both partners already living lawfully in the US
US citizens are permitted under US immigration law to sponsor their non-US spouses in an application for US permanent residence (Green Card).
The process starts with concurrent applications filed by the US spouse and immigrant spouse.
The US citizen spouse submits form I-130, petition for Alien Relative, to USCIS. The purpose is to confirm sponsorship of your spouse and to verify the marriage is legitimate and genuine. Supporting documents will need to accompany the form, including proof of the US citizen’s citizenship, the marriage certificate (certified copy) and any documents evidencing termination of any prior marriages (divorce decrees, certificates of death or annulment – certified copies).
The non-US spouse will at the same file their application for adjustment of status to lawful permanent resident, using form I-485. Accompanying this form will be extensive supporting material and further forms, including:
- Photographs compliant with US visa requirements
- Affidavit of support from the US spouse
- Application for employment authorization
- Application for advanced parole (travel permit)
Once the adjustment of status application has been filed, the non-US spouse becomes legal for the duration of processing of their Green Card.
The immigrant spouse will also have to attend a visa interview.
If the non-US spouse is already living in the US but is married to a US lawful permanent resident (as opposed to a US citizen), the process also starts by filing a Form I-130 with USCIS.
After the petition is approved, the immigrant is placed on a waiting list to apply for their Green Card. During this period, the non-US spouse must hold their own individual lawful status, which may require them to leave the US and file a separate visa petition.
This may also be the case if the Green Card application has to be filed from overseas. Taking advice on your circumstances is the best way to ensure you are working to the correct rules and not hindering your chances of attaining status as a spouse by inadvertently breaking US immigration rules.
In the event the non-US spouse is living in the US without lawful status, a spouse visa application will become significantly more complex.
Specialist advice is recommended to fully understand all available options, such as waiver applications, and for guidance on how to navigate the rules around unlawful status. Issues are likely for example when applying for the Green Card from overseas as the applicant may face a ban on re-entry for several years.
Fiancé to spouse visa route?
Another common route is to first apply for a fiancé visa (K-1) from outside the US. The non-US fiancé visa holder then has 6 months to enter the US and marry their US partner.
Thereafter, they can aply to adjust their status from within the US. They will hold lawful status and employment authorization for the duration of their time on the waiting list for their Green Card.
Marriage Green Card duration
A final important consideration is the duration of the Green Card, once granted.
If the couple have been married for less than two years on the date the non-US spouse attains their Green Card, they will only be granted conditional residence for a period of two years.
90 days before the Green Card expires, both spouses should jointly file form I-751 to apply to remove the conditional status for permanent residence.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
