General information, such as that provided below, does not constitute individual legal advice nor is it meant to take the place of the assessment of an expert; however, we do hope to answer some of the questions we hear most often. You should always consult with a qualified immigration attorney about the individual facts of your case before making any decisions about your particular situation.
We’re married, but the foreign national spouse is outside the United States. Can they get a green card even if they’re not in the United States?
Yes, a foreign national spouse can obtain an immigrant visa and permanent resident status through “consular processing.” The U.S. citizen partner will first file an I-130 Petition for Alien Relative. Once that petition is approved, the foreign national spouse will be able to apply for an immigrant visa through a U.S. embassy or consulate abroad.
What are the filing fees?
Be sure to check the State Department’s website, as these fees may change, but currently, the filing fees include:
- $420 for the processing Form I-130
- $88 for the processing of Form I-864
- $230 for processing of the immigrant visa applications
What kinds of documents can we submit with the I-130 to prove that our relationship is real?
Copies of the following types of documents can be useful in proving that the marriage is real. This list is not exhaustive, and couples don’t need to have every one of these items, but couples should gather as many documents as they can that tend to show that their relationship is about more than pursuit of a green card.
- Photographs of the wedding ceremony and of time spent together as a couple
- Wedding invitations, announcements, congratulation cards, etc.
- Proof of joint parentage or custody of a child or children
- Utility bills in both spouses’ names
- Leases, mortgages, or rental agreements in both spouses’ names
- Joint bank accounts, insurance policies, etc.
- Employer records showing that one spouse has listed the other as an emergency contact
- Evidence that one spouse has made the other a beneficiary of a will, insurance policy, retirement plan, etc.
- Medical powers of attorney or health care directives giving one spouse the authority to make medical decisions for the other
- Records of club, gym, or other memberships where both spouses are listed as members
- Letters, emails, cards, or records of other correspondence (phone, Skype, etc.) over the course of the relationship that document frequent communication with one another
- Evidence of travel together, including trips to visit one another if the couple has been living apart
- Letters of support from friends and family who know the couple and who can attest to the bona fide nature of their relationship
What happens after the I-130 is approved?
After USCIS approves the I-130, it will forward the petition to the National Visa Center (NVC). The NVC will send information on processing fees (commonly known as “fee bills”) for the form I-864 Affidavit of Support. Once this bill has been paid, the NVC will send the U.S. citizen partner form I-864. This form must be completed and sent back to the NVC. The NVC will also send a form DS-3032 (or an electronic DS-261 if filing online) to the foreign national partner. This form allows for the (optional) designation of an agent to receive all future correspondence from the NVC, including fee bills and forms. The applicant can choose to receive all such correspondence directly or designate someone else, including an attorney, the petitioning U.S. citizen partner, etc.
What is required for Form I-864?
In order to demonstrate that the foreign national spouse will not become a public charge, the U.S. citizen spouse must prove that they have sufficient financial resources to support their spouse. The U.S. spouse will have to provide evidence that their annual income is at least 125% of the Federal Poverty Guidelines for their household size. They will have to submit proof of their current employment as well as their most recent federal income tax return. If they do not earn enough money to sponsor their household size at 125% of the poverty level, they can supplement the affidavit with assets (for example if they own a home but live on a fixed income) or they can have a family member or friend file a joint affidavit of support.
Is the U.S. citizen spouse required to be domiciled in the U.S. in order to submit the I-864?
Technically, there is a requirement that the U.S. spouse must be domiciled in the U.S. in order to file an affidavit of support. That said, there are regulations that state that so long as the U.S. partner is taking steps to reestablish domicile in the U.S. (looking for housing, employment, etc.) and so long as they actually do move back to the U.S. either before or at the same time as their spouse, that will be sufficient.
What happens once the NVC receives form DS-3032 or DS-261?
The NVC will send the foreign spouse or the designated agent a fee bill for processing the immigrant visa application. Once this bill has been paid, an “Instructions Package” will be sent to the foreign spouse or designated agent. The Instructions Package will provide information on the forms and documents that the foreign spouse will have to submit in order to apply for an immigrant visa. The immigrant visa application will be either by a paper DS-230 form or an electronic DS-260 (this will vary by consulate, and a small number of consular posts are currently only accepting electronic applications).
What are the documents that the Instructions Package typically asks for?
The documents requested in the Instructions Package vary by consulate, but generally, they include:
- Form DS-2001 Notification of Applicant Readiness
- Form DS-230 Application for Immigrant Visa and Alien Registration (or an electronic DS-260 if filed online)
- Note that the applicant does NOT sign Part II of the form until they report for your interview at the U.S. consulate
- A copy of the foreign national’s birth certificate
- Certified copies of any court or prison records
- Marriage certificate
- Records indicating the termination of any prior marriages
- A certified copy of the applicant's military record if they have served in any country’s armed forces
- Police certificates
- A copy of the identity page of the foreign national’s current, valid passport
- Two (2) passport-sized photographs
- Form I-212 ONLY if you’ve been previously removed from the U.S. and must request permission to reapply for a visa
- Note that a notarized translation is required for any document that is not in English.
How many “police certificates” must the foreign spouse submit?
Applicants are required to obtain and submit police certificates that cover the entire period of their residence in certain localities. These certificates reflect whatever information the police authorities in that area have about them in their records. Generally, the applicant must obtain police certificates from any locality in their home country that they resided in for more than 6 months after reaching 16 years of age. They must also submit police certificates from any locality in a country other than their country of nationality in which they resided for more than 12 months after reaching 16 years of age. Finally, they must submit police certificates from any locality in in any country in which they have been arrested, regardless of their age at the time or the duration of their presence in that area. The State Department’s website has more information about police certificates, including how to request certificates from authorities in particular countries. Note that no police certificates are required to cover any time periods spent living in the United States.
What happens after the applicant has sent in all the forms and documents that were asked for in the Instruction Package?
The NVC or the consulate will send the foreign partner information regarding an immigrant visa interview at the consulate. This letter will also include an Appointment Package, with a list of forms and other documents that must be brought to the consulate for the interview. The Appointment Package will also contain information on the required medical exam.
What happens at the medical exam?
Applicants for immigrant visas are required to demonstrate that they are not inadmissible on public health grounds. Foreign nationals must undergo a medical examination conducted by an approved physician before their visa appointment with the consulate in order to confirm that they have all required vaccinations and that they are not suffering from a “communicable disease of public health significance.” The results of the examination will remain valid for 12 months. The applicant will be provided with a list of physicians who are authorized to conduct these examinations. The applicant MUST schedule an examination with one of these pre-approved physicians. Note, the medical examination no longer includes a test for HIV, and being HIV positive is no longer an automatic ground of inadmissibility. That being said, the applicant’s overall health, including HIV status, can be taken into consideration by USCIS as it determines whether or not the applicant is likely to become a public charge.
What happens during the interview at the consulate?
A consular officer will ask the applicant questions about the documents that they have submitted and answers that they have provided on their immigration forms to double check their accuracy. They may also be questioned about the nature of their relationship, including how the couple met, details about the wedding, and other questions about their life together. At the end of the interview, the applicant will be required to take an oath and sign Part II of form DS-230, affirming that everything in the application is true. If the officer has any reason to doubt that the marriage is real, they may send the application back to USCIS and ask that it be reexamined. Otherwise, the immigrant visa application will be approved. If the application is denied, it will be reviewed by a supervising officer at the consular post, who may also request that the State Department review the application. Unfortunately, denials may not be appealed, but depending on the reason for the denial, they may be able to seek an inadmissibility waiver.
What happens after the foreign spouse is approved for an immigrant visa?
The foreign spouse will receive an immigrant visa that is valid for travel to the U.S. within 6 months. They will also be sent a Visa Packet in a sealed envelope. Do NOT open this envelope. The packet is to be handed to the Customs and Border Protection agent when the individual enters the United States. The foreign spouse will be given a temporary I-551 (green card) stamp in their passport and will enter the U.S. as either a conditional or a lawful permanent resident and should receive their green card in the mail soon after.
What’s the difference between lawful permanent residence and conditional permanent residence?
If the couple has been married for fewer than two years before submitting a spousal petition, the foreign national spouse will receive “conditional” permanent resident status upon entry into the United States. This status is valid for two years. Ninety (90) days before this status expires, the conditional permanent resident must file a petition to remove the conditional status and become a “lawful” permanent resident. In this petition, the applicant will have to show that they are still married, and the couple may be asked to come into a USCIS office for an interview. If all goes well, the applicant will receive a permanent green card after this second round of adjudication. If the couple divorces before obtaining a permanent green card, it may still be possible to obtain the permanent green card but the applicant must submit significant evidence about efforts they made to save their marriage (counseling from a therapist, clergy, family, etc.) in order to convince USCIS that the marriage was not solely for immigration purposes. PLEASE NOTE: if conditional permanent residents do not ask for the condition to be removed before the expiration of their green card, the card will become invalid and they will no longer be permanent residents.
When can the foreign spouse become a U.S. citizen?
So long as the following requirements are satisfied, a lawful permanent resident with a U.S. citizen spouse should be eligible for U.S. citizenship through naturalization following three years of continuous residence in the U.S. as a permanent resident green-card holder. The applicant must:
- Be at least 18 years old
- Remain married to their U.S. citizen partner
- Have been married and living with that same U.S. citizen partner for the past three years, and
- The U.S. citizen spouse must have been a U.S. citizen for the past three years
If any of the above conditions are not met, then the permanent resident spouse will be eligible to apply for U.S. citizenship through naturalization following five years as a permanent resident.
Note that any time spent as a “conditional permanent resident” counts toward the overall continuous residence requirements, so long as the individual applied to remove the condition when they became eligible to do so. Thus, if someone spent two years as a conditional permanent resident and then successfully applied to remove the condition, that person should be able to apply for naturalization following one year in lawful permanent resident status.