We often field a lot of questions from clients regarding marriage visas, green cards and how the process varies depending on the citizenship status of your significant other. In order to demystify the process we compiled the top 5 things to know for spouses or fiancés/fianceés of US Citizens (there are variations in the process for spouses of green card holders which we’ll address in a separate post). For now, here are the top 5 points to remember:
1. No cap to green cards or marriage visas
For US citizens, it’s important to know that unlike other visas (for example the H-1B visa) there is no limit to the amount of green cards or marriage visas granted in a given year. So for you and your significant other, that means there is no need to rush the process, in that there is no “deadline” to hit, applications are submitted and reviewed on a rolling basis.
2. Proper preparation will expedite the process
I know we just said that there was no rush, but...typically a petition for a spouse of a US citizen will pend for several months regardless of whether the spouse is inside the US or abroad. The best advice we can give to clients to speed up the process is to submit all the required documents with the initial application (we'll provide you with the full list) to avoid requests for evidence that would delay the process.
3. Submit early and file as a fiancé/fianceé
For those recently engaged and anticipating a marriage within 90 days, fiancé/fianceé or spousal (K-1/K-3) visas are available. For a fiancé/fianceé already living in the US, after marrying you would be able to apply for an “adjustment of status” (see below) in order to gain your marriage visa.
For the spouse of a US citizen not currently located in the US, there is the option of either filing for a K-3 spousal visa or to petition for approval to come to the US while waiting for your marriage visa to be approved. If petitioning there is still a waiting time for approval and a visit with the US Embassy or Consulate in the spouse’s home country is necessary to complete the interview process.
4. Select your status to determine your marriage visa path
Option 1: Adjustment of status
For foreign spouses of US citizens that are currently in the US after entering on proper visas, it is possible to file the spousal petition together with the green card application. Because the green card application includes an application for employment authorization and advance parole (aka the “combo card”), the foreign spouse will receive a permit to work and to travel in or out of the US while awaiting the green card interview and approval.
If you selected the K-1 route earlier on, once the marriage had been performed (within 90 days of the K-1 visa application), you and your spouse are able to apply for the adjustment of status to obtain a marriage visa.
Note: for foreign spouses who entered the US with improper documents or without inspection, adjustment may or may not be possible, but waivers of inadmissibility may be available. There are some administrative hurdles to clear – which we can guide you through – contact us to learn more.
Option 2: Consular processing
Foreign spouses who are not in the US follow a slightly different track. Instead of an adjustment of status, we will help you to file a petition to enter the US first, when the petition is approved, the consular interview would be scheduled at the US Embassy or Consulate in the foreign spouse’s country. Following the successful interview, the foreign spouse would be granted an immigrant visa and enter the US as a lawful permanent resident.
5. Check travel rules while an application is pending
A foreign spouse of a US citizen may have issues entering the US regardless of whether a petition was already filed on his or her behalf. US law does not permit a person to come to the US as a visitor if that person’s intention is to stay permanently. The fact that a petition is pending for a foreign spouse does not mean that the spouse would be barred from entering the US, but we would absolutely advise such a spouse to have proper advice and documents before attempting to do so.
For spouses who are in the US and applying for adjustment of status, the applicant may not leave the US during this period unless he or she obtains the combo card (mentioned above in adjustment of status). Leaving the country before obtaining the combo card constitutes abandonment of the process and the application will automatically be denied. In exceptional circumstances, an emergency parole may be granted, contact us to learn more.
To recap, preparation is key, factor in your timing needs to pick the path that’s right for you, and submit forms early when possible.
If you’re curious about starting your visa application or want to learn more, drop us a note at hello@lehachfilippa.com. With a member of our team as your guide, we’ll navigate the process together and make your immigration journey as smooth as possible.