Bi-national Couples

LGBTQ couples have been able to obtain marriage-based immigration benefits since the U.S. Supreme Court held that the Defense of Marriage Act (DOMA) was unconstitutional on June 26, 2013. DOMA was a federal law that limited marriage to different-sex couples. Because immigration law is federal, DOMA prevented lawfully married same-sex couples from obtaining lawful permanent residence (green cards) through marriage. Now that DOMA has been struck down, American citizens and lawful permanent residents can submit green card applications for their same-sex spouse.

That said, immigration law is very complicated and couples should speak with a qualified attorney before filing anything. Options for families will vary from case to case, based upon a number of factors, including: whether the couple is together or apart; whether the couple is living together in the United States or abroad; whether the couple has already married; whether the couple can marry; and, for families together in the United States, whether the non-U.S. citizen partner arrived in the United States after having been inspected or paroled by an immigration officer or whether they entered without permission.

On July 26, 2013, U.S. Citizenship and Immigration Services added a webpage entitled Same-Sex Marriages which answers many questions about how LGBTQ immigrant families’ applications have been treated post-DOMA. Also, in July 2013 the Board of Immigration Appeals issued a decision called In Re Zeleniak which makes clear that with the end of DOMA, married same-sex couples are eligible for the whole range of immigration benefits available to different-sex couples. That case also clarifies that under immigration law, the agencies look to the law of the state or country where the marriage took place to determine the validity of the marriage. The Department of State also issued guidance confirming that LGBTQ married couples qualify for spousal visas.

Domestic partnerships do not count as a marriage for immigration purposes. The Department of State FAQs say, “[a]t this time, only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes.” Couples who have attempted to apply for marriage-based benefits on the basis of a civil union or domestic partnership have been unsuccessful.

There are three types of relationship-based immigration petitions:

  1. For families where both partners are in the United States, the U.S. citizen can submit a marriage based spousal petition and the foreign partner can apply for a green card through a procedure known as “adjustment of status.” So long as the foreign partner did not enter the U.S. without inspection (EWI) (i.e. crossing the border without interacting with border patrol agents) and the U.S. partner is a U.S. citizen, this option should be available regardless of whether or not the foreign spouse is in lawful status or has fallen out of lawful status. If the U.S. partner is a lawful permanent resident, the foreign partner can apply for a green card through “adjustment of status” only if they remain in lawful immigration status.
  2. For families who are married and the foreign spouse is located outside the United States, the U.S. partner can submit a spousal petition and the foreign spouse can apply for an immigrant visa through the U.S. embassy or consulate, in a procedure known as “consular processing.” Consular processing is also the option that families have to pursue if the foreign spouse entered the U.S. without inspection or if the U.S. partner is a lawful permanent resident and the foreign spouse has fallen out of lawful immigration status. However, when the foreign national spouse leaves the U.S. to apply, they may be prohibited from returning because of the three-year/ten-year bar on returning to the U.S. following the accrual of unlawful presence here. As a result, some families may need to file for a provisional waiver of this bar from within the U.S. and wait here for the waiver to be approved before the foreign partner leaves the U.S. to consular process.
  3. For families who are not already married, a U.S. citizen partner can sponsor their fiancé(e) to come to the U.S. on a K visa. Note, however, that only a U.S. citizen, and not a lawful permanent resident, can sponsor their fiancé(e) on a K visa.

Spousal Petitions

U.S. citizens or lawful permanent residents may be able to sponsor their foreign-national spouse to obtain lawful permanent residence in the United States. The U.S. citizen or lawful permanent resident partner will first file an I-130 Petition for Alien Relative along with I-130A Supplemental Information for Spouse Beneficiary to USCIS. [Note, many people file the I-130 concurrently with the I-485 mentioned below.] Along with the forms, and evidence specifically required on the forms, other evidence will have to be submitted to prove that the marriage is bona fide and was not entered into solely for the purposes of seeking an immigration benefit.

Copies of the following types of documents can be useful in proving that the marriage is bona fide. Only submit original documents if specifically instructed to do so. 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. In general, it is recommended to submit evidence that shows that the couple entered into the marriage with the intention of building a joint life together – physically, emotionally, and financially.

  • 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

Information on how to submit the spousal petition, evidentiary requirements, and filing fees can be found at www.uscis.gov.

The spousal petition alone, however, is not an application for a green card. It simply is a petition to the U.S. government to recognize that a U.S. citizen or lawful permanent resident is in a bona fide marriage with a non-U.S. citizen. In addition to filing this petition, both people will have to submit additional forms and evidence in order for the spouse to obtain a green card. As noted above, a foreign-national spouse can obtain a green card in two ways:

1. Marriage-based Adjustment of Status

The term “adjustment of status” refers to a green card application that is submitted from within the United States. There are many forms which must be completed to obtain a green card on behalf of one’s spouse. Additionally, the relationship must be proven “bona fide,” that is, that the relationship is real and not just entered into for immigration purposes.

Spouses of U.S. Citizens may obtain a green card (adjust status) from within the United States if the spouse was inspected and admitted into the United States (e.g., the spouse came to the U.S. on a visa) or was paroled into the United States.

Spouses of lawful permanent residents may obtain a green card (adjust status) from within the United States only if the spouse is in the United States in lawful immigration status.

Spouses outside of the U.S. must “consular process” to obtain a green card or must enter with a fiancé(e) visa and then adjust status here. Additionally, if the spouse entered the United States without inspection, or if one is a lawful permanent resident and their spouse is no longer in valid immigration status, the spouse must obtain a provisional waiver for unlawful presence and then consular process. Additional requirements apply should the spouse have a prior order of removal.

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. Always consult with a qualified immigration attorney about the individual facts of the case before making any decisions about a particular situation.

If filing green card paperwork on one’s own, please read all of the form instructions very carefully. Many documents will be requested along with the forms listed below. The form instructions can be found on www.uscis.gov

The I-130 form is used for both adjustment of status and for consular processing. In order to start adjustment of status, indicate on the spousal petition that the spouse will seek to adjust status inside the United States.

U.S. citizens whose spouse entered the country with inspection or on parole, may file the spousal petition concurrently with the spouse’s application for a green card. In order to do so, the U.S. citizen must provide the following:

  • I-130 petition for alien relative
  • I-864 affidavit of support

The foreign national partner must file the following forms:

  • I-130A supplemental information for spouse beneficiary
  • I-485 adjustment of status
  • I-693 civil surgeon examination

While not required, the foreign national partner may also choose to file the following forms:

  • I-765 employment authorization document application
  • I-131 application for advanced parole (which allows travel outside the U.S. while the application is pending)

Lawful permanent residents must first file the I-130 and I-130A. Once these are filed, USCIS will issue a receipt notice for the I-130 which will state the priority date for the application. There is an annual cap on the number of immigrant visas available to the spouses of lawful permanent residents. This has created a backlog before these spouses can file the second half of the green card application and apply for permanent resident status. This means that the foreign spouses of LPRs will need to qualify for an independent visa status in order to remain in the U.S. while waiting for their chance to apply for lawful permanent residence.

Unfortunately, since many nonimmigrant visas require proof of nonimmigrant intent, it can be quite difficult to obtain a nonimmigrant visa or travel on a nonimmigrant visa once a spousal immigrant petition has been submitted.

If a Lawful Permanent Resident has already filed the spousal petition, the spouse is currently in lawful immigration status, and the spouse is eligible to file for a green card, the spouse will have to submit the following:

  • Form I-485
  • I-693 civil surgeon examination

The U.S. citizen or lawful permanent resident, will have to file

  • I-864 affidavit of support

While not required, the foreign national partner may also choose to file the following forms:

  • I-765 employment authorization document application
  • I-131 application for advanced parole (which allows travel outside the U.S. while the application is pending)

In order to demonstrate that the foreign national spouse will not become a public charge, the U.S. citizen or lawful permanent resident 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 and W-2. 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. The joint sponsor must independently make enough money to support the foreign national and their own household at above 125% of the poverty level.  A chart of the poverty guidelines: http://www.uscis.gov/i-864p.

Anyone who applies for permanent resident status in the U.S. must establish that he or she is not inadmissible on public health grounds. USCIS requires foreign nationals to undergo a medical examination with a designated civil surgeon before submitting their adjustment of status application in order to confirm that they are not suffering from a “communicable disease of public health significance.” The medical exam cannot be obtained more than 60 days before the green card application is filed. At the same time, the results of the examination will remain valid for 24 months. 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. If a spouse is living with HIV, please see additional information here.  

There are fees associated with filing the spousal petition and the application to adjust status. For the most recent fee schedule, please consult USCIS at www.uscis.gov. Note, however, that the fees for the applications for employment authorization document and advance parole are included in the application for lawful permanent residence (based on marriage to a U.S. citizen) and the spouse would not have to pay the fees associated with these individual forms should they chose to submit them.

After filing all the forms with the relevant evidence and paying the appropriate fees, USCIS will contact the couple to confirm that it has received the submission and will assign the foreign national partner an alien registration number, or “A number,” if they do not already have one. The foreign national partner will also receive an appointment notice to report to the nearest USCIS Application Support Center to have their biometrics taken. At this appointment, the applicant’s fingerprints and photograph will be taken, and they will be required to fill out a few identification forms.  Please be sure to take a valid photo I.D. to the biometrics appointment. 

USCIS requires an interview with the local office before approving a marriage-based adjustment of status application. Sometimes however, a couple is granted an I-130 without an interview.  If a couple does receive an interview, a USCIS officer may ask them questions about the documents that they have submitted and answers that they have provided on their immigration forms to double check their accuracy. The couple may also be questioned about the nature of their relationship, including how they met, details about their wedding, and questions about their daily married life together. If the officer has any reason to doubt that the marriage is real, the couple can be called back for a second interview at which the two spouses are split up and asked more detailed questions about their life together (like, what color is each spouse’s toothbrush; how many air conditioners are in the apartment; what is each spouse’s favorite movie, etc.) After this interview, the green card can be approved or denied. If it is denied, the foreign national spouse could be placed into removal proceedings if they are out of status at the time.

It is possible to submit an I-765 application for an Employment Authorization Document (EAD) along with an application to adjust status. If approved, an EAD would allow the foreign spouse to legally work in the United States. After receiving the EAD, it is necessary to apply for a social security number in order to work lawfully. 

Generally, green card applicants should not travel abroad while their application to adjust status is pending unless they have applied for and received an “Advance Parole” document. This application can be submitted on Form I-131 and included with the application to adjust status. Without Advance Parole, an adjustment applicant may be denied reentry and/or the adjustment application may be deemed abandoned. Even with advance parole, there may be some risk in traveling if the applicant has accrued unlawful presence in the United States or has other grounds of inadmissibility. Consult with a qualified immigration attorney before traveling abroad.

2. Consular Processing

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. Always consult with a qualified immigration attorney about the individual facts of a case before making any decisions about the particular situation.

If a couple is married, but the foreign national spouse is outside the United States, the spouse can apply for an immigrant visa and permanent resident status through “consular processing.” In order to start consular processing, indicate on the spousal petition that the spouse will seek to apply for an immigrant visa abroad.

If USCIS approves the I-130, it will forward the petition to the National Visa Center (NVC). The NVC will send information on the case number assigned to the case along with an Invoice ID for the Affidavit of Support and the Immigrant Visa forms. Once these fees have been paid, the applicant will be allowed to fill out form DS-260 and Affidavit of Support online and submit to the NVC. The NVC portal also 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.

Once the applicant submits form DS-260 online, no changes can be made to the application. Upon submission, the applicant will receive a confirmation of submission (which will include a barcode). The applicant should save a copy of this confirmation. Additionally, upon submission of the DS-260, the applicant will get an option to save a copy of the submitted DS-260. The applicant should make sure to save this copy as they will not get a chance to save a copy at a later time. The copy of the submitted DS-260 will also have a barcode.

After the NVC receives form DS-260, the applicant is supposed to send the NVC copies of documents mentioned in the State Department’s Visa Reciprocity and Civil Documents schedule. These documents include birth certificates, marriage certificates, divorce decrees, police clearance certificates, and several more civil documents. The documents required vary by the country of the foreign national spouse’s citizenship.

The documents should be accompanied by a copy of the Cover Letter that is issued by the NVC, 2 passport-sized photos of the foreign national spouse, DS-260 submission confirmation, the submitted DS-260, proof of I-130 approval, and documents to prove a bona fide marriage. Additionally, form I-864 has to be submitted in the original along with documents to support the U.S. citizen sponsor’s Affidavit of Support. Increasingly, NVC is allowing the submission of these documents online.

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.

Technically, there is a requirement that the U.S. spouse 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 a 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 should be sufficient.

The documents requested in the Instructions Package vary by consulate, but generally, they include:

  • Confirmation of submission of Form DS-260
  • Copy of the submitted form DS-260
  • A copy of the foreign national’s birth certificate along with a certified translation (if necessary)
  • 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 (see below)
  • A copy of the identity page of the foreign national’s current, valid passport
  • Two (2) passport-sized photographs
  • Form I-212 ONLY if previously removed from the U.S. and must request permission to reapply for a visa
  • Form I-864 Affidavit of Support along with proof of the Petitioner’s income and assets (if not submitted online)

Note that a notarized translation is required for any document that is not in English.

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 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.

Once NVC receives these documents, it will review the documents and contact the applicant should any documents be missing or should NVC require additional documents. Should NVC be satisfied with the documents submitted, NVC will contact the U.S. embassy or consulate with jurisdiction over the foreign national spouse’s application and request that they schedule an interview.

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.

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 medical exam cannot be obtained more than 60 days before the green card application is filed. At the same time, the results of the examination will remain valid for 24 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.

At the interview, 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. 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 cannot be appealed, but depending on the reason for the denial, the applicant may be able to seek an inadmissibility waiver. It is highly recommended that the U.S. spouse attend the interview if possible.

If the consular officer approves the case, the foreign spouse will receive an immigrant visa stamped in their passport 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. The foreign spouse will also have to pay an Immigrant Fee to USCIS. This fee payment can be made online. The foreign spouse will not receive a physical “green card” until this fee has been paid.

Fiancé(e) Visa

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. Always consult with a qualified immigration attorney about the individual facts of a case before making any decisions about the particular situation.

A K-1 fiancé(e) visa is a nonimmigrant visa that allows the foreign national partner of a U.S. citizen the ability to travel to the U.S. for the express purpose of marrying their partner within 90 days of arrival and applying for permanent resident status (a green card) thereafter. It is important to note that only U.S. citizens may petition for their fiancé(e)s to enter the United States on such a visa.

In order to apply for the fiancé(e) visa, the U.S. citizen partner must first file a Form I-129F Petition for Alien Fiancé(e) with USCIS. If this petition is approved, it will be sent to a USCIS service center, which will then direct the petition to the U.S. embassy or consulate with jurisdiction over the foreign national partner. The embassy or consulate will send a detailed “Instruction Package” and information for setting up an interview to determine the foreign national partner’s eligibility for the visa. If approved, the foreign national will receive a visa and must enter the U.S. within 6 months and marry within 90 days of that entry. The final step is to file a Form I-485 Application for Adjustment of Status in order to become a conditional permanent resident.

The I-129F petition must establish four things:

  1. That the sponsoring partner is a U.S. citizen
    1. That both individuals are legally free to marry
    1. That the couple has seen one another in person within the last two years, and
    1. That the couple’s relationship is real (bona fide) and that they intend to marry for reasons beyond just obtaining a green card

There are exceptions to the requirement for the couple to have seen each other in the last two years, however, these exceptions are only available where travel would have caused extreme hardship to the U.S. citizen or where cultural requirements prohibited the partners from having met face-to-face before marrying. In practice, this waiver is very difficult to obtain.

There is a filing fee for the I-129F Petition. For more information on the fees, please consult www.uscis.gov.

In addition to the completed I-129F form itself, the following must be submitted:

  • A completed Form G-325A for both partners
  • Two passport-style photographs of each partner
  • Documentation establishing that the couple has met in person within the past two years and establishing the good faith nature of their relationship

In order to prove the good faith nature of their relationship, couples should be prepared to submit affidavits from each partner, discussing how and when they met and evidencing their intent to marry within 90 days of the foreign partner’s entry; photographs of the couple together; letters or emails that the couple has sent one another over the course of their relationship; letters of support from family or friends who can attest to the bona fide nature of their relationship; travel itineraries or tickets showing that they have visited one another; any powers of attorney, wills, insurance policies in which one partner lists the other as a beneficiary; evidence of any shared financial accounts or obligations, etc. The idea is to submit whatever documents the couple has that would lead someone to conclude that they are in a real relationship.

Once the petition is approved, USCIS will send the petition to the National Visa Center (NVC). NVC will issue a case number and send the petition to the U.S. Embassy or Consulate where the foreign national fiancé(e) lives. The foreign national should submit the DS-160 form for a nonimmigrant visa, online. Upon submission of the form, the foreign national should receive a confirmation page and a barcoded version of the form. They should save copies of both. Once the form has been submitted, the foreign national should follow procedures for payment of visa fees and scheduling a consular appointment their country.

Note that the I-129F petition is valid for four months from the date of approval by USCIS. A consular officer can extend the validity of the petition if it expires before visa processing is completed.

Before the interview, the foreign national will need to schedule and complete a medical examination. Every applicant for a K or immigrant visa, regardless of age, must undergo a medical examination which must be performed by an authorized panel physician. The foreign national will be provided instructions regarding medical examinations from the U.S. Embassy or Consulate where they will apply for their visa.

While vaccinations are not required for K visa issuance, K visa applicants are encouraged to get the vaccinations required under U.S. immigration law for immigrant visa applicants. This is because the vaccinations and immunizations will be required when adjusting status to that of a lawful permanent resident following marriage.

At the interview, we highly recommend, if possible, that the U.S. citizen appear with their fiancé(e).  Several documents have to be taken to the interview. While the requirements vary by consulate, the most commonly requested documents are included below:

  • Completed form DS-160 and the DS-160 confirmation page
  • A passport that is valid for at least six months beyond the intended period of stay in the U.S.
  • Birth Certificate (with certified translation in English, if necessary)
  • Proof of U.S. citizenship for the U.S. citizen
  • Divorce or death certificates of any previous spouses for both the U.S. citizen and their fiancé(e)
  • If required, a certificate of no objection to marriage, issued by the country of the fiancé(e)
  • Police certificates for each place that the foreign national has resided for more than six months since reaching 16 years of age (the embassy website will generally have more information about this)
  • A copy of the foreign national’s military records, if any
  • Medical examination
  • Evidence of financial support from the U.S. citizen, including an affidavit of support on form I-134
    • Photocopies of IRS-issued tax transcripts for the U.S. citizen partner’s federal tax filings for the past three years including all W-2s, attachments, or schedules
    • Proof of employment for the U.S. citizen partner, including several recent pay stubs and a letter from the employer verifying job title, continued employment, and rate of pay
    • Proof that the U.S. sponsor’s income is at or above 100 percent of the federal poverty guideline.
  • Two passport-sized photographs
  • Evidence of a bona fide relationship
  • Evidence of payment of fees

The purpose of the interview is to determine whether the foreign national partner is eligible for a visa to enter the United States. The most common reasons that someone could be found ineligible for a visa include being convicted of certain types of crimes and prior acts of immigration fraud or misrepresentation. The consular officer may also ask questions about the information submitted in the I-129F petition, including about the bona fides of the couple’s relationship.

The amount of time it takes to receive a visa after the interview varies by consulate. Sometimes, the foreign national partner will be able to receive the visa at the interview itself, while others may have to wait much longer. Sometimes, the consulate may request additional information from the applicant that could further delay the issuance of a visa.

If the K-1 visa is issued, the Consular Officer will give the foreign national fiancé(e) their passport containing the K-1 visa and a sealed packet containing the civil documents they provided, plus other documents prepared by the U.S. Embassy or Consulate. It is important that the packet remain sealed. Only the DHS immigration official at the border checkpoint should open this packet when the foreign national enters the United States. A K-1 visa holder must enter the United States either before or at the same time as any qualifying children holding K-2 visas.

The visa provides for a single admission at a U.S. port-of-entry within the validity of the visa, which will be a maximum of 6 months from the date of issuance. A couple must marry within 90 days of the foreign national’s entry into the United States. If the a timely marriage is celebrated, the foreign spouse can apply for adjustment of status to become a permanent resident (green card holder). Find more information about the procedure to adjust status here. Note that K visa entrants can only apply to adjust status based on the marriage for which they were given permission to enter the country.

Conditional Resident status

If a couple has been married for fewer than two years before the spousal petition is approved (either through adjustment of status or consular processing), the foreign national spouse will receive “conditional” permanent resident status following approval of their application. 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 permanent resident. In this petition, the applicant will have to show demonstrate that their marriage was valid on the day that it occurred and at the time conditional permanent residence was granted. Generally, a couple would demonstrate that they are still married, that they still live in the same residence, that they share bill, etc. Sometimes, a 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 foreign national must submit significant evidence that the marriage was indeed entered into in good faith and not solely for immigration purposes. Such evidence may include efforts the couple made to save the marriage (counseling from a therapist, clergy, family, etc.).

PLEASE NOTE:  If the conditional permanent resident does not apply to have the condition removed before their temporary green card expires, their immigration status here also expires. If someone submits the petition to remove conditions on their green card, they will receive a notification from USCIS which extends their lawful permanent residence status for a year. Given the long adjudication times for these petitions, USCIS will renew conditional permanent residence status for as long as the petition to remove conditions remains pending. 

Naturalization

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 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 spouse 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.

Due to delays in adjudication of petitions to remove conditions, sometimes a foreign national may have met all of the aforementioned conditions even before the petition to remove conditions has been approved. In such cases, the foreign national may be eligible to apply for naturalization even though the petition to remove conditions has not been approved. If you or a loved one is in such a situation, speak to a qualified immigration attorney to discuss what steps can be taken.

Frequently Asked Questions

My partner is here on a visa that allows for the intention to stay in the U.S. (for example, an H1B or L1 visa). Can we marry and apply for a green card?

Yes, as long as a couple is lawfully married, and meet the other general immigration marriage requirements they can apply to adjust status to lawful permanent resident and process their paperwork from within the United States.

Can someone in the United States on a non-immigrant visa (for example a tourist or student visa) that does not allow for immigrant intent file a marriage-based green card application?

Maybe. As with many areas of immigration law, this is an area that will involve a fact-intensive inquiry by USCIS. Many nonimmigrant visas are subject to Section 214(b) of the Immigration and Nationality Act (INA), which creates a legal presumption that the foreign national is an “intending immigrant”, that is that they intend to remain in the U.S. permanently. To overcome the presumption of immigrant intent, a foreign national must show that they have such strong ties to their home country (such as family, a good job, real estate, school enrollment) that it is not likely they would want to remain in the U.S. beyond the period of time the U.S. gives them. However, it is considered acceptable to enter the U.S. with the intention to remain here temporarily and then change intentions as circumstances in one’s life change. For example, a university student might meet someone after attending school here and decide to marry that person months or years after entering the U.S. on a student visa.

On the other hand, if a person enters the U.S. on a tourist visa, marries, and applies for a green card a short time after entering the U.S., USCIS may conclude that the individual misrepresented their lack of immigrant intent to the immigration official at the airport and this could in some cases make it difficult to have a green card application approved.

If someone shouldn’t enter the U.S. on a tourist visa and apply for marriage-based adjustment of status, what’s the best way to obtain U.S. residency when the foreign partner is outside the United States?

Couples may have several options and should consult with an immigration attorney. One option is for the U.S. citizen partner to file a fiancé(e) visa petition for the foreign national partner. American citizens can file a fiancé(e) visa petition for a partner with whom they have a committed relationship. The couple must marry within 90 days of the foreign partner’s entry into the United States, and once married, the American spouse can file a marriage-based petition for the foreign spouse.

Another possibility would be for the foreign national partner to come to the U.S. as a tourist, get married here, and then return to their home country to apply for a green card through consular processing. Families living in a jurisdiction that does not recognize marriage for same-sex couples may also be able to marry in a different country, which would then allow the foreign spouse to consular process. Different consulates have different backlogs in various categories of petitions, so it would be helpful to consult with an immigration attorney to decide which option would be the best fit for a family’s circumstances.

Once the application is submitted, how long will we have to wait until the foreign spouse can work?

For couples who live in the United States together, it is common to file an application for work authorization along with the application for lawful permanent residence. Processing times vary throughout the U.S., but generally employment authorization documents (EADs) are issued within 90 days, and marriage-based interviews are generally scheduled within 12 months after filing. Check online for USCIS’s current processing times. Fiancé(e) visa recipients can apply for adjustment of status and an EAD after they arrive in the U.S. and marry their U.S. citizen partner. Spousal visa recipients become permanent residents upon clearing customs and can begin working in the U.S. right away.

My partner is here on a work visa. Is a marriage-based visa better?

It depends. In general, marriage-based petitions are adjudicated more quickly than many other applications for lawful permanent residence. Employment-based petitions are complex, with most categories requiring the employer to prove that there are no U.S. workers able, willing, and qualified to fill the position. There is also an annual cap on the number of employment-based green cards that can be issued, which has created years-long backlogs in several employment-based categories. Since there is no limit to the number of green cards that can be issued to the spouses of U.S. citizens, a marriage-based petition may result in a green card much more quickly. Regardless of whether a foreign national obtains a green card through a marriage-based petition or through a different avenue (like an employer), he or she can apply to become a citizen after three years (rather than five) if married to an American citizen.

I am undocumented, but my partner is American. Can we apply?

Maybe. While the general rule under U.S. immigration law is that an immigrant cannot change their status from unlawful to lawful from within the United States, one very important exception to that rule is for certain spouses of U.S. citizens. As long as the foreign partner entered the U.S. with inspection by a U.S. immigration officer, or were paroled into the United States, they can still file for a green card even if they are currently in the U.S. without lawful status. The situation is more complicated if they entered the U.S. without inspection, in which case, with very limited exceptions, they’d be required to apply for a green card from outside the country and may need to secure a waiver of an unlawful presence bar. Because the denial of a spousal benefit for an undocumented person will likely result in that individual being placed into removal proceedings, one should consult with a qualified immigration attorney for advice.

I am currently in removal proceedings. Can I still marry my partner and apply for a green card?

Yes, but it may be more complicated. Any time a couple submits a spousal petition, they must provide evidence that the marriage is real and was not entered into solely to obtain an immigration benefit. However, whenever someone who is in removal proceedings marries a U.S. citizen and applies for status, that person must prove that the marriage is real by “clear and convincing evidence.” This is a very demanding level of proof and families in these circumstances will have to submit extensive documentation establishing the genuine nature of their relationship.

 I am U.S. citizen, and my spouse has children. How will this affect them?

Generally, when a U.S. citizen files an application for lawful permanent residence for a spouse, they can also file for the spouse’s children as “step-children.” Even if the U.S. spouse does not see these children as “step-children,” if the foreign spouse is the biological parent of the children, filing a step-child petition for lawful permanent residence will probably provide the most efficient way to obtain their green cards. The couple must have married before the child turned 18, and the child must currently be under 21 and unmarried in order to get a green card at the same time as the parent’s marriage-based green card. 

Note: if you and your spouse are married, and you have children that are a product of your marriage, click here.

Do we need a lawyer? Do we need a lawyer that specializes in LGBTQ issues?

It’s always a good idea to have a lawyer when applying for an immigration benefit and spousal petitions can be very complicated. Immigration Equality maintains a referral list of private immigration attorneys who are culturaly competent about LGBTQ issues. To request an attorney referral from Immigration Equality, please fill out the Contact Us form.

Immigration law is very complicated. While many people successfully file marriage-based applications for lawful permanent residence without a lawyer, we generally recommend that people should seek out representation by qualified counsel.


The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.

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