There are five basic ways in which marriage may facilitate a foreign national’s immigration to the United States. The first three are strategies available to a U.S. petitioner who wishes to gain legal status for his spouse or fiancé(e). The fourth is available to a foreign spouse who finds herself in an abusive relationship with a U.S. citizen or resident. The fifth offers a means for a visa holder to bring her spouse and children with her to the United States as “derivatives” on her visa.
1. Petitioning for a spouse who is abroad.
It is very common for a U.S. citizen or permanent resident (hereinafter “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. 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 petition.
The 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 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.
Visas for spouses of U.S. lawful permanent residents (green card holders) are limited in number. 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.
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 in the chapter devoted to the topic, 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.
2. Fiancé/fiancée visas
To initiate marriage-based consular processing a couple must be legally married, as further described below. In scenarios where the couple is engaged but not yet married, it often makes greater practical sense to pursue a fiancé/fiancée visa in lieu of a marriage visa. Generally, the couple is required to have met in person within the two years prior to commencing the immigration process. Unlike marriage-based petitions, fiancé petitions may be initiated only by a U.S. citizen; they are not available to U.S. permanent residents.
The International Marriage Broker Regulation Act (IMBRA) imposes further requirements on couples who met through a paid facilitator. Passed in order to address violence towards “mail-order brides,” IMBRA imposes strict disclosure requirements both on both international marriage brokers and on the U.S. petitioner who meets a fiancé through such a service. IMBRA exempts both culturally- or religiously-sanctioned matchmaking organizations, as well as dating services that are not geared principally at facilitating international courtship. Additionally, IMBRA imposes criminal background restrictions on the U.S. petitioner. In most family-based immigration contexts, while strict criminal background standards are imposed on the foreign national, the background of the U.S. petitioner is immaterial. In the fiancé context, however, certain crimes by the U.S. petitioner – including documented violence and stalking – must be disclosed and documented. A petitioner with such prior convictions may be required to seek a waiver before the petition may move forward. Finally, IMBRA imposes rules on the number of successive fiancé petitions that U.S. citizen may file without having to seek special permission to petition. In certain scenarios where the U.S. citizen has sponsored multiple foreign fiancés, a subsequently sponsored fiancé will be informed of this history by the State Department.
Immigration of a foreign fiancé follows roughly the same outline as the first two steps described above for a marriage-based visa. The U.S. citizen petitioner starts the process by filing a Form I-129F Petition for Alien Fiancé(e). U.S. permanent residents are not eligible to file such petitions. Fiancé petitions go through the same initial review by USCIS as the marriage petitions described above. Historically fiancé petitions are adjudicated in significantly shorter time than marriage-based petitions. At the time of writing adjudication could be expected in two to four months.
Following approval by USCIS the process varies slightly from marriage-based petitions. Instead of being sent first to the National Visa Center (NVC), the fiancé case is forwarded directly to the appropriate U.S. consulate abroad. This direct line to the consulate may result in significant time savings given the stringent documentation requirements imposed by the NVC. The U.S. consulate will issue a letter to the foreign applicant, advising her of the documentation requirements required in her case. But unlike a marriage visa these documents need not be produced until the applicant appears for her in-person interview at the consulate. While a fiancé visa is technically categorized as a non-immigrant (temporary) visa, the application is typically processed by the consular section responsible for immigrant (permanent) visas.
In fiancé cases the U.S. petitioner does not file the I-864 financial support contact until after the foreign spouse has entered the United States. Indeed, the consulate is expressly forbidden to require the Form I-864. Instead, the consulate may – and generally does – require submission of the non-binding Form I-134 Affidavit of Support. As with the Form I-864, this document is submitted by the U.S. citizen petitioner, promising to provide financial support for the foreign spouse. Unlike the Form I-864, however, courts have held that the Form I-134 is not an enforceable contract.
Following visa approval at the U.S. consulate – unlike in marriage based cases – the fiancé’s process is not complete. After entering the U.S. on the fiancé visa, the couple has 90 days in which to be legally married. This 90-day limit is strictly enforced and jurisdictional. If the marriage is timely completed, the foreign spouse then files an I-485 Application to Adjust Status, seeking to acquire status as U.S. permanent resident. At this stage the U.S. petitioner concurrently files the I-864 financial support contract.
The adjustment of status application typically will be set for an interview at a USCIS Field Office, though approval is sometimes given without an interview. The time from filing to interview follows the same time-frame discussed in the next Section, below. Because the fiancé visa does not serve as work authorization, the foreign spouse is required to apply for work authorization concurrently with permanent residence. Work authorization should be issued in three months, and in any event the spouse will be authorized to work once the permanent residency application is approved.
3. The spouse is in the U.S. (adjustment of status)
Certain foreign nationals who are physically present in the U.S. may be able to complete the marriage-based immigration process without leaving the country. This process is referred to as adjustment of status (i.e., adjusting to status as lawful permanent resident). For those who qualify, adjustment is typically speedier than consular processing, and avoids separation of the couple.
The paperwork for adjustment of status is completed in a single stage, and is thus commonly referred to by immigration practitioners as a one-step. As with consular processing, as described above, the U.S. spouse files an I-130 Petition as the “invitation” to the foreign spouse. But unlike consular processing the foreign spouse is not required to wait for approval of the I-130 petition. Instead, the foreign spouse concurrently files a Form I-485 Application to Adjust status, and the two submissions are adjudicated simultaneously. The Form I-864 financial support contract is also currently filed with the application packet.
As with consular processing, a central USCIS facility reviews the submission for documentary completion and will issue a Request for Evidence if needed. Once the file is complete, the case will be forwarded the USCIS field office having jurisdiction over the applicant. USCIS field offices are located in most major cities throughout the United States.
The time between initial filing and interview has ebbed and flowed, and also varies between USCIS field offices due to interview backlogs. At the time of writing in the author’s jurisdiction of Seattle, Washington, interviews could be expected approximately six to eight months from filing.
While the application is pending, may the foreign spouse work? In some scenarios the spouse may already be in the United States with a status that authorizes work. But if not, the spouse must apply for work authorization concurrently with the adjustment of status application. In such cases work authorization should be issued within three months of filing.
Both the U.S. citizen petitioner and the foreign spouse applicant are required to appear in person at the USCIS field office for interview. Unlike consular visa interviews, the parties have a statutory right to counsel at the interview. Also in contrast to consular processing, field office interviews are lengthy, detailed affairs. The couple will be seated at a desk across from a USCIS adjudicator for an interview that routinely lasts one hour or more. If the interviewer suspects fraudulent intent she may interview the couple separately. In such cases the interviewer will document each individual’s response to a preset list of questions designed to probe knowledge about the marital relationship.
Why would a couple ever use consular processing if adjustment of status allows them to remain together during processing? The issue lies with how the foreign national spouse will enter the United States. Under the immigrant intent doctrine, an individual entering the United States on a temporary visa generally may not harbor the intention to remain permanently in the United States. Indeed, immigration law presumes that a visa applicant intends to reside permanently in the United States, and the burden rests on the visa applicant to prove otherwise. In order to enter the United States on a temporary visa, such as a visitor’s visa, the foreign spouse would need to misrepresent her intentions both to the consular officer and, likely, to the Customs and Border Protection officer at the time of entry. By securing entry to the U.S. by fraud, the individual becomes permanently barred from reentry and from adjusting status. For this reason it is extraordinarily misguided for an individual to enter the U.S. on most temporary visas with the intention to marry a U.S. spouse and seek adjustment. By contrast, if the intention to marry and seek adjustment is formed only after entry – as when the U.S. spouse proposes after the foreign national has entered the country – it may be possible to seek adjustment.
4. “Self-petitions” by survivors of domestic abuse
As described above, marriage-based immigration typically involves an invitation by the U.S. citizen or resident in the form of a petition filed with the immigration service. The Violence Against Women Act of 1994 provides an important exception to this general rule for foreign citizens subjected to abuse. Under these laws, a self-petition may filed by an immigrant spouse who is determined to be “battered” or the victim of “extreme cruelty.” Historically foreign spouses have been at risk of being held captive by relationships to which their legal immigration status was tied, which Congress sought to remedy with the self-petition.
To qualify, the foreign national must be married to a U.S. citizen or permanent resident, as with the typical petitions discussed above. Following statutory amendments in 2000, self-petitions are available following divorce, so long as they are sought within two years of dissolution. The children of the abused spouse may also qualify. Similarly, the former spouse of a U.S. citizen or resident may qualify if her children suffered abuse from the citizen/resident (regardless of whether the foreign spouse was abused). The foreign spouse must demonstrate a legal marriage to the citizen/resident, but need not extensively document the bona fides of the relationship as is typically required in a marriage-based immigration case. With limited exception, self-petitions are available only to abused spouses living in the United States, and who entered lawfully.
The crux of a VAWA self-petition is typically demonstrating extreme cruelty by the U.S. citizen or resident. The term extreme cruelty is defined broadly and includes psychological rather than only physical abuse. The VAWA self-petitioning process follows a similar procedural outline to the marriage-based adjustment of status outlined above. The petitioner begins by filing a Form I-360, Petition for Amerasian, Widow or Special Immigrant. Following approval of the petition the self-petitioner files for adjustment of status to permanent resident, as with a typically marriage-based case.
5. Derivative status in employment-based immigration.
A foreign national accompanying a spouse’s with an employment-related visa may be able to derive status from that spouse. Perhaps the most common example is a skilled worker holding an H-1B visa, whose spouse may qualify for an H-4 visa. Traditionally H-4 dependents have been unable to work in the U.S., but the Obama Administration extended work authorization to such spouses in early 2015. The primary visa holder must maintain his visa in order for the foreign national to derive status. For the derivative spouse, legal status is tied to the continuation of the marriage, and status is lost upon divorce.