Vertical menu icon, also known as the hamburger icon
Immigration Solutions
Banner logo image
Law Office of Hamid R. Kashani
Attorney at Law
Show Full Menu

Immigrant Visas (Green Card) for Spouses of U.S. Citizens

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Jan 31, 2019)

If you are a U.S. citizen who has married a foreign-born (same-sex or opposite-sex) spouse, you may petition for your spouse's classification as an immediate relative. Your spouse would be eligible to pursue the necessary steps to acquire permanent resident status and ultimately citizenship.

Topic image for Immigrant Visas (Green Card) for Spouses of U.S. Citizens

Typically, your spouse and your spouse's minor children (under 21 and unmarried), would receive conditional permanent residence. It would be critical to file a timely application to remove the condition on their permanent residence. Otherwise, they will lose their authorization to stay in the United States.  See Removing Condition on Residence Based on Marriage.  Eventually, they will become eligible to apply for naturalization (citizenship).

What is the application process to apply for immigration of my spouse?

To apply for an immigrant visa for your spouse, you must file an immediate relative classification petition (Form I-130: Petition for Alien Relative), together with all supporting documents and fees, with the USCIS in the United States.

To see when a marriage is recognized for immigration purposes and how you can prove the marriage is bona fide, see Recognition of Marriage and Its Bona Fide for Immigration Benefits

To see the current USCIS fee schedule, see USCIS Fee Schedule.

To see how long the USCIS would take to adjudicate your petition, see USCIS Processing Times.

If your spouse is in the United States, upon approval of your classification petition, your spouse may file an application for adjustment of status.  In fact, it would be best if your spouse files an Application for Adjustment of Status concurrently with your petition. If your petition and your spouse's application are approved, your spouse will receive a conditional permanent residence status. The actual conditional permanent resident card will arrive by mail a few weeks after your spouse receives the approval notice.

Note that not every foreign-born spouse in the United States would qualify for adjustment of status.  See Adjustment of Status Eligibility Requirements, though there are exceptions for immediate relatives of U.S. citizens.

If your spouse is overseas, the USCIS will send the approved petition to the National Visa Center (NVC). The NVC will collect the required documents and fees from you and will forward the file to a U.S. consulate for consular processing. Your spouse will have an interview at the designated U.S. consulate. Assuming all goes well, the U.S. consulate will issue an IR-1 or a CR-1 immigrant visa to your spouse, depending on the length of your marriage (see below). Once your spouse arrives here, he or she will be interviewed by the officers of U.S. Customs and Border Patrol. If your spouse is admitted, the officer will note the appropriate visa category on your spouse's passport. In a few weeks, your spouse will receive either a regular or conditional permanent resident card (see below).

What if my spouse is in removal proceeding?

When the non-citizen, beneficiary spouse is in removal proceeding, the family-based petitions filed on the basis of marriage to a U.S. citizen or permanent resident must show by clear and convincing evidence that the marriage is bona fide and include a request for an exemption, under 8 C.F.R. § 204.2(a)(1)(iii)(A), of the general prohibition on such petitions filed while the beneficiary is in removal proceeding.

Who may not qualify for green card?

Not everybody who is married to a U.S. citizen would qualify for an immigrant visa.  Section 212 of the Immigration and Nationality Act lists the indivisuals who are “inadmissible” immigrants. These include people who have committed certain types of crimes, violated immigration laws, or are afflicted with certain mental or physical illnesses. Some exceptions or waivers may be available, but you need to consult an attorney to explore the possibilities.

See Provisional Unlawful Presence Waiver

See Waiver of Grounds of Inadmissibility

What is the difference between IR-1 and CR-1 immigrant visas?

If you and spouse have been married for two years or more at the time of adjustment of status in the United States or the interview at the U.S. consulate, your spouse will receive a regular (unconditional) green card (IR-1 visa).  Otherwise, your spouse will receive a conditional green card (CR-1 visa).  In that case, you and your spouse must file a petition to remove the condition on your spouse's residence within the 90-day period immediately before the expiration of your spouse's conditional residence, which will be shown on your spouse's conditional residence card.

If the consulate has issued a conditional permanent residence visa (CR-1) to your spouse but by the time your spouse arrives at a U.S. port of entry you have been married for two or more years, remind the Customs and Border Patrol (CBP) officer at the port of entry to adjust your spouse's visa to unconditional permanent residence (IR-1).

If your spouse receives a CR-1 visa at the U.S. consulate but by the time your spouse arrives in the United States two years have passed since the date of your marriage, your spouse may request that U.S. Customs and Border Protection officers note an IR-1 status on his or her passport. That would result in your spouse receiving an unconditional (regular) green card. If the second anniversary of your marriage is near, your spouse may reschedule the consulate interview in order to receive an IR-1 visa, as opposed to CR-1.

What level of financial support do I need to show to support my spouse?

When filing petitions for immigrant visas for your spouse and children, you need to file Form I-864 (Affidavit of Support under Section 213A of the INA) to show your financial ability to support your family. Form I-864 must show that your income is at least 125 % of the Federal Poverty Guidelines.

If your spouse is in the United States and files an Application for Adjustment of Status, Form I-864 and its supporting materials should be filed with that application. If your spouse is overseas, you do not need to file Form I-864 with your classification petition, which is filed with the USCIS. In that case, Form I-864 must be presented to the U.S. consulate during the consular processing.

Can I petition for immigration of my stepchildren?

When your spouse is immigrating to the United States as an immediate relative immigrant, you cannot include derivative beneficiaries on your spouse's classification petition. Instead, you must file separate classification petitions for your spouse's children (now your stepchildren).

Under the Immigration and Nationality Act, your stepchildren must have been under the age of 18 at the time you established step-child/step-parent relationship by marrying their alien parent. INA §101(b)(1)(B). Your stepchildren must be unmarried and under 21 years of age, at the time of their interview and arrival in the United States.  Under Child Status Protection Act (CSPA), for immigration purposes, the ages of qualifying stepchildren would freeze, when you file I-130 petitions on their behalf.

Your stepchildren will receive regular (unconditional) or conditional permanent residence, corresponding to IR-2 and CR-2 visas, depending on the duration of your marriage to their alien parent.

Can my spouse and stepchildren work in the United States?

If your spouse and stepchildren are already here when you file your petition, they should file Applications for Employments Authorization Document (EAD), using Form I-765, together with their adjustment of status applications, in order to receive permission to accept employment. See Working in the United States during the Immigration Application Process.

Your spouse and stepchildren, who arrive in the United States as permanent residents or conditional permanent residents, are free to work in the United States without restriction.

Can my spouse and stepchildren travel outside of the United States?

If your spouse and stepchildren are already here when you file your petition, they should file an application for advance parole, using Form I-131, and receive an advance parole before traveling overseas. See Traveling Outside of the United States during the Immigration Application Process.

Your spouse and stepchildren, who arrive in the United States as permanent residents or conditional permanent residents, are free to travel outside of the country.  They must, however, maintain their permanent residence in the United States, and their travel pattern must show that they intend to make the United States their home.  Repeated travels out of the country or long travels to their home country with short stays here will call them to the attention of immigration authorities and may eventually result in loss of status. If a situation arises that requires them to stay out of the country for an extended period of time, they may seek an advance parole, using Form I-131.

Related Topics:

Removing Condition on Residence Based on Marriage

Citizenship after Marriage to U.S. Citizen

Waiver for Battered/Abused Spouses, Children, & Parents

 

Was the information on this page helpful?
Home iconHome|About Us iconAbout Us|
Contact Us iconContact Us|Schedule Consultation iconSchedule Consultation
Terms of Use iconTerms of Use|Privacy Policy iconPrivacy Policy|
Important Notice iconImportant Notice
© Copyright, Law Office of Hamid R. Kashani, 2019. All rights reserved.

made by e-Commerce-Consulting.com