In response to COVID-19, our office is still operating and we encourage those who want to set up a consultation with us to do so and you will have the option via phone or skype. Visit our Coronavirus Resource page for up-to-date info on COVID-19 and immigration.
Deciding to get married is a big enough step for anyone, but deciding to marry a foreign national will involve some additional legal steps you might not have thought about. Speaking with an experienced immigration attorney to explain your different options will help put your mind at ease and make the process an enjoyable one!
US citizens can petition either their fiancées or spouses for permanent residency. Click here for more information on the fiancée visa process.
Once the U.S. citizen is married to a foreign national, their spouse is considered an immediate relative, meaning there is no wait time (aside from normal processing times) to be able to request residency for their foreign national spouse. Initially, the U.S. citizen spouse will file Form I-130 to establish their citizenship status, that they are legally married to their spouse, and that their marriage is bonafide and legitimate and not just for immigration purposes.
If the foreign national spouse is in the United States already, they may be eligible to file a one-step adjustment of status and include the I-485 application for residency at the same time the U.S. citizen spouse files the I-130 petition. If the foreign national spouse is outside of the United States, once the I-130 petition is approved, they would then be able to immigrate to the US through consular processing in their home country while pursuing an immigrant visa.
Whether the foreign national spouse’s residency application or immigrant visa is approved depends on many factors, and the foreign national spouse is not guaranteed residency simply because he or she is married to a U.S. citizen. Was the petition prepared correctly and submited with the required supporting documents? Is the relationship bona fide? Is the foreign national spouse “admissible” to the United States (re: previous immigration violations, criminal issues, etc.)? All of these factors should be taken into account when filing an application for the foreign national spouse.
If you are a Permanent Resident petitioning the foreign national spouse, they will be placed in the F2A category of the US Department of State’s Visa Bulletin. As there is a numerical limit to the number of spouses of permanent residents who can immigrate to the United States each year, there may be a period of time that the immigrant spouse will have to wait before being able to file for an immigrant visa or for an adjustment of status. The Visa Bulletin is a database of priority dates in various visa categories, and you can check it.
To petition the foreign national spouse as a Permanent Resident, the Permanent Resident first needs to file Form I-130 to establish the relationship and the priority date. Once the priority date is current, the foreign national spouse can immigrate to the United States by either filing an I-485 application for residency (if they are in the US), or DS-260 application for an immigrant visa (if they are outside the US). Keep in mind, if the foreign national spouse wishes to pursue an adjustment of status in the US with form I-485, they must continually maintain legal status, have lawful presence, and not have worked without authorization, among other requirements for residency.
If you are interested in sponsoring your foreign national spouse, you should consult with an experienced family immigration attorney who can perform a thorough screening of your immigrant spouse’s immigration history to ensure a proper filing. Contact us at Bashyam Shah LLP to schedule the consultation today.