Marriage-Based Immigration via Consular Processing

The process for obtaining permanent residence based on marriage to a U.S. citizen when the foreign spouse is overseas is composed of two phases: (1) the I-130 visa petition; and (2) the immigrant visa application and consular interview.

The I-130 Petition

The first step is to submit an I-130 Petition for Alien Relative to the U.S. Citizenship and Immigration Services (USCIS). The purpose of the visa petition is to prove to the Immigration Service that the US citizen has a bona fide marriage to a foreign spouse who wishes to immigrate to the United States. The permanent resident process is almost completely petitioner-driven. That means that the person who petitions for the foreign spouse has control over the petition. The foreign spouse cannot force the U.S. citizen spouse to file on the foreign spouse’s behalf. Once a petition is filed, the U.S. citizen relative can withdraw or cancel the petition at any time before the foreign spouse obtains permanent resident status.

As part of filing the I-130 petition, it will be necessary to submit documentation to establish the couple married in good faith and not merely for the purpose of evading the immigration laws of the United States. Accordingly, the couple will need various documents to show the marriage is bona fide, including the marriage certificate and any evidence of the relationship such as photos, letters, phone calls, trips together, etc.

Application for Immigrant Visa/Interview

If the I-130 Petition is approved, the next step is applying for the immigrant visa at the embassy/consulate where the foreign spouse resides. Upon the approval of the I-130, the National Visa Center will send an instruction packet explaining the next phase of visa processing and what documents need to be gathered before the foreign spouse’s interview at the embassy/consulate. These documents include an affidavit of support from the U.S. citizen spouse, vaccination records, police certificate(s), and proof of a good-faith marriage (marriage certificate, photos, letters, etc). The immigrating spouse will also be required to under go a medical exam with an Embassy-approved physician.

The immigrating spouse will also be given a date to come to the consulate for the immigrant visa interview. The interview can last for as little as 10 minutes or up to an hour depending upon the specific case. The foreign spouse will take an oath under U.S. law to tell the truth, so it is very important that the foreign spouse answer every question as truthfully as possible.

During the interview, the consular officer will ask questions about the marriage to determine if it indeed was made in good faith, such as how and when the couple met, how often they talk to or visit each other, and what are the plans for the future. The foreign spouse will also be asked whether he/she has: (1) been a member of the Communist Party, terrorist groups or similar organizations; (2) been arrested or convicted of any crimes; (3) ever received public assistance, or (4) lied to obtain a visa, worked in the United States without permission, or overstayed his/her legal status, etc. If any of these questions is yes, inform your attorney immediately.

If the visa application is approved, the foreign spouse will be issued an immigrant visa that is valid for six months from the interview date. The visa is not the same as receiving a green card. The foreign spouse will become a U.S. permanent resident only when he/she enters the U.S. at a port of entry.  At the port of entry, the foreign spouse will receive a temporary I-551 stamp in his/her passport and then later a green card in the mail.

If the couple has been married for less then two years at the time of the foreign spouse’s arrival at the U.S. port of entry, then the foreign spouse will receive a conditional green card. This card will expire two years from the date of issuance. The foreign spouse is required to file a Form I-751 to remove the conditions on his/her permanent resident status within 90 days of the expiration date of the green card. If the marriage has been for more than two years, a 10-year green card will be issued.

As to how much time this whole process will take, unfortunately, no one has an accurate answer. Any estimate given today could change by tomorrow because the factors driving the government processing times can change quickly. Such factors include government resources devoted to reviewing applications in any one category, changes in policy, and changes in visa category quotas.

Also, even after engaging in this often lengthy and time-consuming process no one can guarantee success of any case because of the many factors over which the couple or their attorney have no control.

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