Family Based Petitions


 

Before you file any documents, it is helpful to understand that spouse means lawful husband or wife. In order to successfully petition for an immigrant visa for your spouse, your relationship with your spouse must be established and your spouse must be admissible to the United States under the immigration law.

 

Overview of Immigration Process

 

A legal immigrant (or lawful permanent resident) is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a three-step process for your spouse to become a legal immigrant:

  • The USCIS must approve an immigrant visa petition that you file for your spouse.
  • The State Department visa bulletin must show that a spouse immigrant visa is available to your spouse, based on the date you filed the immigrant visa application.
  • If your spouse is outside the United States when your visa petition is approved and when an immigrant visa number (if required) becomes available, your spouse will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa. If your spouse is legally inside the U.S. when your visa petition is approved and when an immigrant visa number (if required) becomes available, he or she may use the Form I-485 to apply to adjust his or her status to that of a lawful permanent resident.

Information for Citizens

 

If you are a U.S. citizen, your spouse is considered an immediate relative and is immediately eligible for an immigrant visa if your petition is approved. Generally, if your spouse is in the U.S. (through a lawful admission or parole) at the time you file the Form I-130, Petition for Alien Relative, your spouse may file a Form I-485, Application to Register Permanent Residence or to Adjust Status at the same time. For more information, your spouse should refer to Adjustment of Status. If he or she is outside the U.S., your spouse will need to go to the nearest U.S. consulate to apply for an immigrant visa.

 

Information for Lawful Permanent Residents

 

If you are a lawful permanent resident and your petition for your spouse is approved, your spouse will be notified by the Department of State when a visa number becomes available. If your spouse is outside of the United States at the time of notification, he or she must then go to the local U.S. consulate to complete visa processing. If your spouse is inside the U.S. through a lawful admission or parole and is maintaining that status at the time of notification, he or she may file the Form I-485 when the visa number becomes available. If you do not have the visa number issued by the Department of State, you must wait for a number to become current. Your spouse may need to depart the United States to avoid accruing unlawful presence.

 

If you were married to your spouse before you became a permanent resident, your spouse may be eligible to receive following-to-join benefits. This means that you would not have to submit a separate Form I-130, Petition for Alien Relative, for your spouse, and your spouse would not have to wait any extra time for an immigrant visa to become available.

 

Conditional Residence

 

If you have been married less than two years when your spouse is granted lawful permanent resident status, your spouse will receive permanent resident status on a conditional basis. You and your spouse must apply together to remove the conditions on residence. Please note you must apply to remove conditional status within 90 days before the 2-year anniversary of the award date of your spouse’s conditional legal permanent resident status. If you fail to file during this time, your spouse will be considered out of status as of the 2-year anniversary, and may be subject to removal from the U.S. For more information, please see Removing Conditions on Permanent Residence Based on Marriage.

 

Can My Spouse Come to the U.S. to Live While the Visa Petition Is Pending?

 

If you are a U.S. Citizen, once you file form I-130, your spouse is eligible to apply for a non-immigrant K-3 Visa . This will entitle him or her to come to the U.S. to live and work while the visa petition is pending. The form to file for this benefit is Form I-129F. It is not necessary for your spouse to obtain a K-3 visa in order to come to the U.S. to live and work. Your spouse may wait abroad for immigrant visa processing. However, seeking a K-3 visa can be a method for him or her to come the the U.S. more quickly.