How to bring your spouse to the United States

How to bring your spouse to the United States

If you are a U.S. citizen married to a foreign national who lives abroad, there are two ways to bring your spouse (husband, wife, or same-sex spouse) to the United States.

• IR1 or CR1 – Immigrant visa for spouse (and their children) – An immigrant Petition for Alien Relative, Form I-130 is required for each beneficiary, with supporting documentation regarding the good faith marriage. Once the I-130 petition is approved, the spouse needs to apply for an immigrant visa through the consular process (NVC), prepare the required documentation, and attend an interview at the US consulate or embassy.
• K-3 – Nonimmigrant visa for spouse awaiting adjudication of I-130 Petition (and their children)  – In addition to the pending I-130 Petition, an I-129F Petition is required. People usually file an I-129F for the purpose of expediting the adjudication of the I-130 Petition. It is very rare for an I-129F Petition to be approved before an I-130 Petition is approved, so, most of the time, the beneficiaries end up following the regular consular process for their immigrant visa. If, however, the I-129F is approved first, the beneficiary spouse may be admitted to the US as a non-immigrant for two years, if the I-130 was not approved yet at the time the K-3 visa was issued.

If you are a U.S. Citizen who intends to get engaged or has a fiancé(e) who lives abroad, whom they want to bring to the U.S. to marry and live here (and their children), then you must apply for a K-1 Visa. This requires an I-129F fiancé(e) petition, and, when the petition is approved, you must follow the consular/NVC process. Before you file the petition, you and your fiancé(e) must have met each other in person at least once within the 2-year period before you file your petition, even though a waiver of this requirement is available in limited circumstances. Another requirement is that you must intend to marry each other within 90 days of your fiancé(e) entering the U.S as a K-1 nonimmigrant. Once you get married in the US within the 90 days, your then spouse may apply for lawful permanent resident status (Green Card).

If you are a permanent resident of the United States (have a Green Card) and your spouse lives abroad, you may also bring your spouse (not fiancée) and their children to the U.S. by filing an I-130 Petition, but the spouse has to wait to apply for his or her immigrant visa through the consular/NVC process until the priority date for your petition becomes current. The priority date is the date of filing the I-130 petition, and the date when it becomes current may be found in the Visa Bulletin that is published each month on the Department of State’s website. If you obtain your U.S. citizenship before the priority date becomes current, you may upgrade your petition and your spouse becomes immediately eligible to apply for the Green Card.

If you are a U.S. citizen and your spouse is already in the United States, your spouse may be eligible for adjustment of status to permanent resident. You can file an I-130 Petition for your spouse, and the spouse may concurrently apply for permanent legal resident status (Green Card), as long as the foreign spouse entered legally, with inspection, even if s/he overstayed his/her visas, if s/he is not otherwise inadmissible. If your spouse is inadmissible due to, for example illegal entry/unlawful presence, they may need an I-601A or I-601 waiver, depending on their circumstances, and you can only file the I-130 Petition, and then the spouse will have to go through consular process/NVC in order for him or her to obtain their immigrant visa at the U.S. consulate abroad. If your spouse has been previously in deportation or removal proceedings, they may also need an I-212 waiver.

In all marriage-based petitions, you must demonstrate that your marriage is in good faith.

Contact one of our experienced immigration lawyers in New York at 718-407-0871 or online at https://www.prizant-law.com if you need help with bring your spouse to the United States or any other solutions to your immigration problems.

Contributed by Svetlana Prizant, an Award Winning New York Immigration Lawyer

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