Marriage visa / spouse visa.
It is very common for a U.S. citizen or permanent resident (“U.S. spouse”) to initiate the immigration process for a foreign spouse living abroad. This is commonly referred to in the immigration law community as “consular processing” or a “two-step,” for reasons apparent below. Many people refer to this as the marriage visa or spouse visa process.
The scenario is common when the couple initially met abroad, as where the U.S. spouse was performing work overseas or was stationed abroad with the armed services. Here is an overview of the process.
Step (1) – the I-130 petition
The marriage visa / spouse visa process begins when the U.S. spouse files a Form I-130 Petition for Alien Relative. The I-130 petition seeks to establish a bona fide marriage relationship for immigration law purposes – it is, in essence, an immigration invitation from the U.S. spouse. The Department of State refers to this as establishing the classification of the foreign national. Documentation requirements of the I-130 Petition include evidence demonstrating that the couple has a genuine and legal marriage. In almost all scenarios the I-130 is filed domestically with U.S. Citizenship and Immigration Services (USCIS).
The spouse of a U.S. citizen is classified as an immediate relative. Unlike other family-based visa categories, there is no limit the number of immediate relative visas available each year. When the Form I-130 is filed by a U.S. citizen, the timeline is governed only by the adjudication speed of the immigration agencies. At the time of writing, adjudication could be expected in four to six months, though in the recent past a wait of twelve months was common.
The availability of a marriage visa / spouse visa for spouses of U.S. lawful permanent residents (green card holders) is limited. Such spouses must wait first for adjudication of their I-130 Petition, and then for a visa number to be available. The day on which such a petition is approved by USCIS establishes the priority date for the petition. The priority date establishes the beneficiary’s place in the visa queue. At the time of writing this could be expected to add roughly an additional year to first step of processing.
If USCIS determines that the I-130 is improperly documented it will issue one or more Requests for Evidence (RFEs) to the petitioner. An RFE will be issued, for example, to demonstrate that a prior marriage of the petitioner had been legally concluded. When USCIS has received all mandatory documents required for the I-130 Petition it will render a decision, at which point the case is transferred to the U.S. Department of State.
Step (2) – consular processing (National Visa Center and DS-260 application)
The second step of the process begins with the case file is transferred to the State Department’s National Visa Center (NVC) in Portsmouth, New Hampshire. Now that the I-130 Petition – the invitation – has been approved, responsibility shifts to the foreign national spouse to accept that invitation by filing a DS-260 immigrant visa application. This visa application is submitted online to the NVC and requires extensive background information about the foreign spouse. Although documentation has already been provided for the I-130 Petition, the visa application has its own rigorous documentation requirements. The NVC – more so than the USCIS – is extremely exacting in requiring that documentation requirements are precisely met. The author has met pro se applicants who received eight requests for evidence, resulting in additional delays far beyond a year, to meet basic documentation requirements at the NVC.
One document required at the NVC stage – critical for family law practitioners – is the Form I-864, Affidavit of Support. As explained in detail elsewhere on our site, this document is filed by one or more U.S. sponsors to guarantee financial support of the foreign visa applicant. It is a binding contract that may be enforced by the foreign beneficiary. At the NVC the sponsor is required to submit a signed copy of the Form I-864, and the case will not progress until this is done. In support of the form the sponsor is required to submit copies of his most recent federal tax returns, or tax transcript, and may elect to provide the two prior years as well. Sponsors who lack sufficient income may also report and document financial assets, which may be used to meet support requirements. In practice many sponsors report assets to the NVC even where their income is independently sufficient to meet documentation requirements.
After the NVC has received all required paperwork a case is considered to be documentarily qualified, at which point it will be transferred to the appropriate consular post. Generally speaking the case will be transferred to the main U.S. consulate in the country where the foreign spouse is residing. Once transferred, the case will be set for an in-person interview at the consulate. The applicant’s final preparation for the interview includes completing an immigration medical examination with a registered Panel Physician, to screen for physical and mental conditions that bar admission to the United States.
Only the foreign spouse is required to the consular visa interviews. The consulate has discretion to permit attendance by the U.S. spouse and/or counsel, and in practice neither typically attends. By contrast, where the immigration process is completed within the United States – as discussed below – the U.S. spouse is required to attend, and the parties have the right to be represented.
Visa interviews at consulates are brief, intense affairs. The process which has been the focus of the couple’s life for a year or more will culminate in an adjudication that may last five minutes. Interviews take place at interview booths similar to a teller’s window at a high-security bank. The interview will be conducted by Foreign Service officer, who typically have extraordinary qualifications and crushing adjudication loads. In rare instances the applicant may be given more lengthy attention in an isolated interview room, but typically the adjudication is made on the strength of the visa packet and a brief interaction with the applicant.
Applicants are often informed at the interview or very shortly thereafter if their visa has been approved. The applicant’s passport – which will have been collected at the interview – is then returned by courier with the visa stamp. The applicant will also receive a sealed packet which she is required to present to Customs and Border Protection (CBP) at the U.S. port of entry. The applicant’s admission to the U.S. commences her status as U.S. permanent resident, and the packet is taken by CBP in order to generate the applicants I-551 residency card (i.e., green card), which is typically mailed to the applicant within a month of arrival in the U.S.