Applying for a green card through marriage via the Immigrant Visa process is an option that is available to foreign spouses who do not want to apply for their green card inside the U.S. Unlike the adjustment of status process of applying for a green card in the U.S., an individual electing to process their green card via the immigrant visa process will ultimately apply for and be approved for permanent residency at a U.S. Consulate abroad. This process is sometimes referred to as the marriage visa or green card visa.
The immigrant visa route of applying for a green card through marriage is most often selected when the couple or the foreign spouse is residing outside of the U.S. and the foreign spouse is not able to enter the U.S. in a status that allows for immigrant intent.
Why would someone choose the immigrant visa green card process?
The immigrant visa route of applying for a green card through marriage is sometimes selected in the following types of situations:
- The couple is living abroad and they wish to return together to the U.S. in the near future.
- The U.S. citizen spouse is living in the U.S. and the foreign spouse is living abroad.
- The foreign spouse does not have any way of entering the U.S. in a status that allows for immigrant intent.
- The foreign spouse is currently in the U.S., but not in a status that allows for immigrant intent and he/she is concerned about immigrant intent issues.
- The foreign spouse is currently in the U.S. in a non-immigrant status that does not allow for immigrant intent, such as the visitor status or TN status, and the individual has a need to travel outside of the country in the near future.
- The foreign spouse entered the U.S. illegally and will have to submit a waiver application as part of the green card application.
There may be other scenarios that make it prudent to navigate the green card process through the immigrant visa route. Before embarking on the process, you should discuss the matter with an experienced immigration lawyer.
How does the process work?
Just like applying for a green card through marriage via the adjustment of status process in the US, the most important initial step is that you must be married to a U.S. citizen or permanent resident in order to navigate this process. The next step requires the submission of an immigrant petition to USCIS by the U.S. spouse [the process will be explained from the perspective of marriage to a U.S. citizen spouse] on behalf of the foreign spouse. Among other things, the immigrant petition will indicate the relationship and that the U.S. spouse would like to sponsor the foreign spouse for permanent residency.
After the immigrant petition has been approved in the U.S. by USCIS, the case will then be transferred to the National Visa Center in New Hampshire. The National Visa Center will then contact the petitioner (US spouse) and/or the attorney of record and request the payment of the immigrant visa application processing fee and the affidavit of support fee. Once these fees have been paid, the case will then be transferred abroad to the U.S. Consulate with jurisdiction over the foreign spouse’s place of residence.
When the case arrives at the U.S. Consulate abroad, the Consulate will then request specific documents and the completion of certain forms. Some of the items the Consulate will request are the affidavit of support and supporting documents, Form DS-230, birth certificate, police certificates, marriage certificate, any divorce certificates, and passport photos.
The last step of the process involves an interview at the U.S. Consulate. If the case is approved, the consular officer will place a stamp in the foreign national’s passport evidencing that he/she has been approved as a permanent resident. In addition, the consular officer will provide the foreign national with an envelope to present to CBP upon entry to the U.S. The green card will arrive in the mail in the U.S. shortly after entry.
What if my spouse is a permanent resident, not a U.S. citizen?
If your spouse is a permanent resident of the U.S. and not a U.S. citizen, then you will be subject to a wait based on the filing of the immigrant petition. You can take the first step, which is filing the immigrant petition, but you will have to wait for your “priority date” to become current.
Does the immigrant visa process cure certain immigration violations in the same manner that the adjustment of status does?
NO! If you have overstayed in the US, especially by 6 months or more, or if you have accrued unlawful presence in the U.S. or you have entered the U.S. without inspection (illegally) or you have potential fraud/misrepresentation issues on your immigration record, you may be ineligible for a green card via consular processing. This is especially important to note if you are already in the US, as not only might you be ineligible for a green card, but you will also likely not be able to get back into the U.S.
Why shouldn’t I use this route?
As discussed above, individuals with certain issues, such as unlawful presence, overstays, entered without inspection, fraud/misrepresentation, and/or other immigration issues, should probably not use this route to apply for a green card if they are already in the U.S. For some individuals, like those who entered without inspection, the immigrant visa route combined with a waiver may be their only option of applying for a green card. Please discuss your case with an experienced immigration lawyer before proceeding, as the negative consequences could include denial of your green card and a ban from the U.S. for anywhere from 3 years to a lifetime!
What organizations are involved?
The immigrant visa process involves several different organizations. At the initial stage, U.S. Citizenship and Immigration Services (USCIS), which is overseen by the U.S. Department of Homeland Security, adjudicates the immigrant petition. Once the immigrant petition is approved, the National Visa Center, overseen by the takes on the U.S. Department of State takes on responsibility of transferring the case to the U.S. Consulate abroad. After approval by the U.S. Consulate abroad, the foreign national will then need to be admitted to the U.S. by U.S. Customs and Border Patrol, also overseen by the U.S. Department of Homeland Security.
How long does it take?
It is very difficult to put an exact timeframe on the immigrant visa process since there are so many different agencies involved in navigating the process. Generally speaking, a fair timeframe is approximately 6-10 months from the filing of the immigrant petition to approval at the U.S. Consulate. Timeframes can vary depending on backlogs of cases at both the USCIS and the U.S. Consulate abroad.
What are the fees?
The immigrant petition submitted with USCIS entails a filing fee of $535. Once the immigrant petition is approved, the National Visa Center will contact the petitioner and attorney of record in regard to the filing fees for the affidavit of support and the immigrant visa application. The affidavit of support entails a filing fee of $120 and the immigrant visa application entails a fee of $325. There may be other additional surcharges administered by the U.S. Consulate.
What is immigrant intent and dual intent?
Every individual entering the U.S. is presumed to have immigrant intent. Immigrant intent means that you have the intent to remain in the U.S. permanently upon entry to the U.S. When entering the US, if you are not entering in a nonimmigrant status that allows for immigrant intent, then the burden is on you to rebut the presumption of immigrant intent when being evaluated by the Customs and Border Patrol (CBP) officer. Examples of nonimmigrant statuses that do not allow for dual intent are the TN, B-1/2, and the F-1.
The doctrine of dual intent applies to the H-1B and L-1 statuses. Dual intent means that an individual who is requesting entry to the U.S. in the H-1B or L-1 status may have an intention to immigrate at some time in the future.
What are some examples of cases where people use this route?
The below are some general scenarios that may be conducive to the immigrant visa process. All scenarios presume that one of the spouses is a U.S. citizen.
- A married couple residing outside of the U.S. who want to move to the U.S. in the near future.
- A foreign spouse who resides outside of the U.S. without the ability to enter the U.S. in a nonimmigrant status that allows for dual intent.
- A married couple residing inside the US, but the foreign spouse does not have a visa that allows for dual intent and he/she has a need to travel outside of the U.S. in the near future.
- A married couple residing in the U.S. and the foreign spouse has some immigrant intent issues.
- A currently residing abroad and wants to start the process of immigrating to the US
Can the U.S. citizen spouse accompany the foreign spouse at the interview?
Generally, this is allowed and encourage if possible.