These FAQs are written for marriage-based petitions which can be filed under current law by couples where one spouse is transgender. Under current law, in order for a U.S. citizen or lawful permanent resident to sponsor a spouse when one of the spouses is transgender, the couple must have entered into a valid, different-sex marriage before filing the immigration papers.
The information in this section is intended to be broad enough to also apply to lesbian and gay couples if, in the future, they are able to file marriage-based petitions.
We’re married, but my spouse is outside the United States. Can I sponsor him/her for a green card even if we’re not in the same place?
Yes, your 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. 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 your marriage is real. This list is not exhaustive, and you don’t need to have every one of these items, but you should gather as many documents as you can that tend to show that your relationship is about more than pursuit of a green card.
- Photographs of your wedding ceremony and of your time spent together as a couple
- Wedding invitations, announcements, congratulation cards, etc.
- Proof of joint parentage or custody of a child(ren)
- 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 your relationship that document your frequent communication with one another
- Evidence of travel together, including trips to visit one another if the two of you have been living apart
- Letters of support from friends and family who know the two of you as a couple and who can attest to the bona fide nature of your 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. You can choose to receive all such correspondence yourself or designate someone else, including your 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 he or she has sufficient financial resources to support his or her spouse. You will have to provide evidence that your annual income is at least 125% of the Federal Poverty Guidelines for your household size. You will have to submit proof of your current employment as well as your most recent federal income tax return. If you do not earn enough money to sponsor your household size at 125% of the poverty level, you can supplement the affidavit with assets (for example if you own a home but live on a fixed income) or you can have a family member or friend file a joint affidavit of support.
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.
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 you’ve filed online)
- Note that you do NOT sign Part II of the form until you report for your interview at the U.S. consulate
- A copy of your birth certificate
- Certified copies of any court or prison records
- Marriage certificate
- Records indicating the termination of any prior marriages that you’ve entered into
- A certified copy of your military record if you have served in any country’s armed forces
- Police certificates
- A copy of the identity page of your 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 I 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 you in their records. Generally, you must obtain police certificates from any locality in your home country that you resided in for more than 6 months after reaching 16 years of age. You must also submit police certificates from any locality in a country other than your country of nationality in which you resided for more than 12 months after reaching 16 years of age. Finally, you must submit police certificates from any locality in in any country in which you have been arrested, regardless of your age at the time or the duration of your 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.
What happens after I’ve 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. You will be provided with a list of physicians who are authorized to conduct these examinations. You MUST schedule your 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 you questions about the documents that you’ve submitted and answers that you have provided on your immigration forms to double check their accuracy. You may also be questioned about the nature of your relationship, including how you and your partner met, details about your wedding, and other questions about your life together. At the end of the interview, you will be required to take an oath and sign Part II of form DS-230, affirming that everything in your application is true. If the officer has any reason to doubt that your marriage is real, they may send your application back to USCIS and ask that it be reexamined. Otherwise, your immigrant visa application will be approved. If your 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.
What happens after I’m approved for an immigrant visa?
- You will receive an immigrant visa that is valid for travel to the U.S. within 6 months. You 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 you enter the United States. You will be given a temporary I-551 (green card) stamp in your passport and will enter the U.S. as either a conditional or a lawful permanent resident and should receive your green card in the mail soon after.
What’s the difference between lawful permanent residence and conditional permanent residence?
- If you’ve 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, you will have to show that you are still married, and you may be asked to come into a USCIS office for an interview. If all goes well, you will receive a permanent green card after this second round of adjudication. If you and your spouse divorce before obtaining a permanent green card, it may still be possible to obtain the permanent green card but you must submit significant evidence about efforts you made to save your marriage (counseling from a therapist, clergy, family, etc.) in order to convince USCIS that your marriage was not solely for immigration purposes.
When can I become a U.S. citizen?
- So long as the following requirements are satisfied, you 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. You must:
- Be at least 18 years old
- Remain married to your U.S. citizen partner
- Have been married and living with that same U.S. citizen partner for the past three years, and
- Your spouse must have been a U.S. citizen for the past three years
- If any of the above conditions are not met, then you 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 you applied to remove the condition when you became eligible to do so. Thus, if you spent two years as a conditional permanent resident, applied to remove the condition, you should be able to apply for naturalization following one year in lawful permanent resident status.