Immigration for Spouses of US Citizens

A US Citizen has the right to petition for an immigrant visa for his spouse. While the process usually takes longer than a K-1 visa, the spouse arrives in the United States as an immigrant. If the spouse arrives in the US on an immigrant visa (or adjusts status) less than two years after the date of the marriage, USCIS will grant conditional residency status for two years. This means that within the 90 day window before the expiration of the two years, the spouse must file to remove the condition. If the parties divorce during the two years, the condition will be removed as long as the marriage was entered into in good faith. If the spouse arrives in the US on an immigrant visa (or adjusts status) more than two years after the marriage date, then permanent residency is acquired immediately. In either event, the spouse can naturalize three years after acquiring either conditional or permanent residency status as long as the parties remain together.

What is the immigrant process for spouses?

The process is straightforward. The US citizen files an I-130 petition along with supporting documentation to the appropriate USCIS Service Center. If the spouse is in the US, she may file an application to adjust status together with the petition. After approval of the petition, the spouse will either go through a visa interview at the US Embassy abroad or continue the adjustment of status process in the US. The spouse acquires US status upon 1) entry to the US with an immigrant visa or 2) upon approval of the I-485. If the spouse acquires conditional permanent resident status, he/she will submit an I-751 application to remove the condition within 90 days of the expiration of the two-year period.

What happens during the visa or adjustment of status interview?

The bona fides of the relationship are probed by the officer. If suspicions are aroused, the officer may arrange for separate interviews (if the US citizen is present) with in-depth questions about the relationship (e.g., on which side of the bed does he sleep, brand of toothpaste) and each other’s families and then compare the answers of both parties for discrepancies. In addition, the spouse’s application is reviewed for criminal, security, medical, and immigration visa history issues. The officer also reviews the affidavit of support of the US citizen, as well as the supporting financial documentation.

What are some of the problems encountered during the spousal immigration process?

The problems and issues associated with the spousal immigration process vary, but may include:

  • Financial wherewithal of the US citizen, particularly when the income level is minimal. A common mistake of officers is to overlook the assets of the US citizen which can substitute for a low income, and requiring a co-sponsor;
  • Sham marriage. This issue becomes acute when there is a large difference in ages; if the US citizen does not speak the language of the spouse and the spouse’s English is limited; and/or the parties have spent minimal time together;
  • Obtaining consent of ex-spouse for minor child to immigrate;
  • Past visa history of the spouse;
  • Just because the spouse may be issued an immigrant visa does not guarantee that his/her parent will obtain a nonimmigrant visa in the future to visit or stay.

How does White & Associates help?

White & Associates has helped scores of foreign spouses immigrate to the United States. We have assisted them in dealing with these problem issues — helping secure a consent from an ex-spouse; dealing with “poison pen” letters; preparing waiver applications if the foreign spouse has had visa overstay or criminal problems in the past; formulating legal opinions on such issues as financial charge (e.g., the US citizen does not have income, but assets). While the process is not complex, improperly preparing the documentation can lead to substantial delays. Sometimes a consultation may help to put the foreign spouse at ease — after all, she is moving to a foreign country and wants to understand what her rights and obligations will be. She may wish to have someone prepare her for the visa interview and what kinds of questions to expect; what documents to take to the interview, etc. We can provide a consultation or comprehensive representation encompassing the spousal immigrant visa, adjustment of status, and condition removal.