UNDERSTANDING THE BASICS OF SPOUSE VISAS

The most favored category of family based immigrant petition under U.S. law is a petition of a U.S. Citizen for immigrant status for their "immediate relative". "Immediate relative" in this context includes spouses, parents and unmarried minor children. Unmarried, minor children includes stepchildren provided, that the step-parent/step-child relationship came into being before the child turned 18 years of age. However, there are no "derivative beneficiaries of immediate relative petitions and a separate petition must be filed for each qualifying relative, including children of the principal alien relative. For example, U.S. Citizen marries Thai national with 2 children under the age of 18. All three Thai nationals would qualify for U.S. immigrant visas as immediate relatives but, 3 separate petitions would have to be filed.

Should you file for a K-1 fiancée visa or marry and file as a spouse?

For persons considering whether to file for a K-1 fiancée petition or, to marry abroad and file an immediate relative petition for their spouse, two principal factors should be considered:

  1. In general, a K-1 fiancée visa holder will usually enter the U.S. more quickly but, will obtain their permanent resident status (their "green card") more slowly owing to relatively long processing times for adjustment of status cases after the fiancée enters the U.S. and marries the USC petitioner. Conversely, a spouse beneficiary of an immediate relative petition will generally obtain their visa and enter the U.S. more slowly but, will be made a permanent resident ("green card" holder) of the U.S. immediately upon passing through immigration at their port of entry.
  2. In a marriage case, if children are involved, separate petitions must be filed for each child, as well as the alien spouse. Conversely, in a fiancée visa case, children may be afforded derivative beneficiary status on the same case, receiving K-2 visas to enter the U.S. within one year of their K-1 parent's visa issuance.

In short, if speed of entry is not the primary consideration, a spousal visa offers many advantages "frontloading" the work, expense and aggravation, which is naturally inherent in these cases, getting most of it over with before the entry of the alien into the U.S.. On the other hand, if speed of entry is the primary consideration, a K-1 visa may be a better alternative for some. Please note however, that there are additional steps to be taken in the U.S. after marriage of the K-1 visa holder and USC in order to "adjust status" from K-1 to permanent resident which can be burdensome, time consuming and expensive, particularly if a number of applicants are involved.

BASIC REQUIREMENT AND ELIGIBILITY (Immigrant Visa for Spouse of a U.S. Citizen)

The Immigration and Nationality Act (INA) provides for the issuance of an immigrant visa to the spouse of a United States Citizen (USC) after a petition for that specific benefit, filed by the USC petitioner has been approved by the appropriate USCIS office or Service Center.

In order for such a petition to be approved, there must be sufficient satisfactory evidence that the USC and spouse:

  • have a bona fide (real, legitimate, honest) marriage, and:
  • were legally able to enter into a valid, legal marriage and that all prior marriages of both parties were terminated through death or divorce, and;
  • the alien is not subject to any legal grounds of inadmissibility

Please keep in mind that USCIS approval is just the first step in the approval process. The Department of State must also approve the actual visa issuance and, it is at this stage that many cases get into trouble. USCIS processing and approval is largely a "paper review" process. If the proper forms, evidence and explanations are provided, it is highly unlikely that your case would be denied by USCIS. USCIS is able to perform only a "paper review" in most instances because they are relying on the Department of State, through its' consular officers to investigate the background of the individuals, to make an assessment of the applicant's admissibility and the bona fides of the family relationship during consular processing and the personal interview.

Please note that, if the marriage is less than two years old on the date of entry to the U.S. (and grant of permanent resident status), the alien spouse's permanent resident status will be "conditional" for a two year period following the grant of permanent resident status. "Conditional" has nothing to do with the substantive rights or obligations or the alien as a permanent resident but, does impose a requirement that, within the 90 days preceding the second anniversary of the grant of permanent resident status, that the couple file an application to lift conditions on permanent resident status. In effect, this "condition" is the Government's way of making the couple check back in with them for a second chance to verify the validity of the relationship. "Conditional" status applies to both spouses entering on immigrant visas and K-1 adjustment applicants IF, the grant of permanent resident status occurs before the second anniversary of the marriage.

BASIC PROCEDURAL STEPS

  • We will file an original petition for the benefit sought with USCIS at the appropriate office having jurisdiction over your case. In most cases this is the USCIS Service Center with jurisdiction over your state of residence. Regardless of the location of the USC petitioner, the alien spouse or the immigration attorney, all such filings are effected by courier service (i.e., Fed Ex) or by certified mail. Initial USCIS adjudication in this type of petition generally requires no personal appearance before USCIS. Depending on the Service Center involved, it is currently taking USCIS approximately 5-7 months to adjudicate and approve these types of cases. However, processing times fluctuate all the time, both up and down. Your attorney will advise you of the expected USCIS processing time as of the date of your filing.
  • Following approval by USCIS, the case is then forwarded to the National Visa Center (NVC), a Department of State facility in Portsmouth, NH. It is at this point in case processing that the timelines between spouse cases and fiancée cases diverge substantially. In the case of a fiancée petition, the file is only briefly delayed at the NVC where it is assigned a local embassy file number and the file is transmitted to the Embassy for final visa processing. Conversely, Spouse and other Immediate Relative petitions are subject to substantially more processing at NVC. Please keep in mind that NVC processing essentially takes the place of the "adjustment of status" processing that occurs later in a fiancée case. The NVC processing steps in a spouse or other immediate relative case are as follows:
    • NVC receives the file and assigns it an Embassy/Consulate case number
    • NVC send out fee bills for the Immigrant Visa Fee, Affidavit of Support Fee and Security Clearance Surcharge. Payment for these fees is forwarded to NVC's collection center in St. Louis, MO.
    • Upon receipt of the fees, NVC in Portsmouth, NH sends out additional forms for completion, including the I-864 Affidavit of Support. NVC forms and evidence on the Affidavit of Support are returned to NVC. NVC then takes approximately 6-8 weeks to review the information before forwarding the file on to the Embassy/Consulate for visa processing and personal interview of the beneficiary (foreign national spouse, child or parent).
  • Upon receipt of the file, the Embassy will send out a set of additional forms and instructions, effectively their notice that they are ready to proceed. We will already have these and all related evidentiary materials prepared. At that time, the Embassy will also advise of the date and time of the interview appointment. At some low volume posts such as Burma or Laos, scheduling is reasonably prompt, subject to necessary times for security clearances. At high volume posts such as Bangkok and Ho Chi Minh City, waits for interview appointments can be substantial, often running 10-12 weeks or more. This fluctuates up and down throughout the year from a low of about 6 weeks to a high of about 12 weeks. The length of time depends partially on the time of year your case processes through the Embassy and, partially on collateral demands on the resources of the Consular staff.
  • During consular processing, we will prepare all necessary forms and translations, guide your spouse through obtaining police clearances, medical exam and assembly of evidence.
  • Most importantly, we will thoroughly prepare your spouse for her personal interview. We will practice with your spouse the questions that are likely to be asked at her interview and review with her the facts relating to her answers. Unlike many unlicensed "visa services", we will not coach your spouse to lie. We will, however, make sure that she is familiar with all likely questions, be prepared to provide short, concise, truthful answers and, to understand why certain questions are being asked. If properly prepared, there is no reason for your spouse to be apprehensive about her interview. She will be prepared to answer all questions completely and truthfully. For Thai and Vietnamese applicants, preparation sessions are conducted in person at our Bangkok or Ho Chi Minh City offices. For applicants from other countries in the region, preparation sessions are conducted by telephone or, in person if the applicant wishes to come to our office or, if the applicant is available during one of our frequent trips to the surrounding countries.
  • In the event that the consular officer has additional questions or, requires additional documentation after the interview, our office will respond to all such requests.

Note for Expatriates: Please note that special jurisdictional rules apply to expatriate Americans residing abroad which may substantially shorten the processing time for an immigrant visa for your spouse. Your attorney will advise you as to whether you qualify for special jurisdiction after reviewing the facts of your foreign residency with you. For specific questions about overseas USCIS jurisdiction, please contact our Managing Director for additional information at WFWLAW@aol.com

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