There are several ways that foreign-born nationals can live and work in the United States. Some choose to use their employment or significant investment, while others go through their immediate family members or maybe seeking asylum. However, one valuable way to immigrate to the U.S. is through your fiance or spouse. Here, we’ll go over the major marriage visas and green cards and how you can apply for one.
What is the DOS Definition of a Spouse?
Before you can qualify for a marriage-based visa, you must be the spouse of a U.S. citizen or lawful permanent resident. According to the U.S. Department of State, “a spouse is a legally wedded wife or husband.” The following explanations further clarify what a spouse is and what it isn’t when it comes to the immigration application process:
- Merely living together doesn’t qualify a marriage for immigration.
- If you are a common-law spouse, you may qualify for a marriage visa depending on what the law says in the country where the common-law marriage took place. Common-law marriage is an agreement between a man and woman to get married without observing a religious or civil ceremony.
- If you are in a polygamous marriage, only the first spouse may qualify as a spouse eligible for a marriage visa.
Types of Nonimmigrant Marriage Visas
The nonimmigrant visas that have to do with marriage are found in the K category. These visas serve as temporary placeholders as you wait for your green card. The four categories in the K classification include:
- K-1 fiancé(e) visa – this visa is designed only for the fiancé(e)s of U.S. citizens. According to immigration law, someone counts as a fiancé(e) only if the U.S. citizen intends to marry the foreign national within 90 days of his or her entry into the U.S.
- K-2 visa – this one is for the children of a foreign national fiancé(e) who is under K-1 status. They will be under this nonimmigrant status only until their statuses are adjusted, and they can receive green cards.
- K-3 visa – this visa is meant for the foreign-born spouses of U.S. citizens. If the citizen sponsor has filed an I-130 for a marriage-based green card, the alien spouse can use the K-3 visa to remain in the U.S. while awaiting the decision.
- K-4 visa – If your K-3 spouse has children coming with him or her, they can stay in the U.S. under K-4 status. The only caveat is that, if the child is the step-child of the U.S. citizen sponsor, then the marriage will have to have taken place before the child turned 18 in order for him or her to qualify for K-4 status.
Fortunately, foreign aliens can apply for employment authorization documents (EAD) while under K status. Keep in mind that missing the 90-day mark for the wedding date, you will violate your K-1 or K-2 status. Similarly, if you get divorced or have your marriage annulled, then the K-3 and K-4 statuses will be void. In these cases, the foreign fiance, spouse, or children must depart the U.S. or be considered “out of status”.
Marriage Visa Application Process
For the K-1 and K-2 visas, the U.S. citizen sponsor needs to file an I-129F petition for their foreign fiancé(e). The fiancé(e) is not able to petition for his or her self. If the petition is approved, the fiancé(e) will need to go to the U.S. Consulate or Embassy located in his or her home country. There, they will need to participate in a one-on-one interview with a consular officer to ensure that your relationship is legitimate.
If you pass the interview, then the fiancé(e) will be given their K-1 visa along with any K-2 visas necessary for accompanying children. When the U.S. citizen sponsor and the foreign fiancé(e) have gotten married, the sponsor can then immediately file an I-130 for a marriage-based green card.
For the K-3 and K-4 visas, the I-129F petition can only be filed after the I-130 has been filed on behalf of the immigrant spouse. Additionally, you do not need to file a separate petition for the K-4 dependents.
Marriage-Based Green Cards
For foreign-born spouses to live and work permanently in the U.S., the marriage-based green card is required. The nonimmigrant visas listed above are only temporary placeholders as you wait for the green card to be approved. To file, the U.S. citizen sponsor must submit an I-130 petition with the USCIS and wait for the approval. Fortunately, even if the wait is long, your fiancé(e) or spouse will be able to stay in the U.S. under the K-1 or K-3 visa. Additionally, he or she will be able to work through an EAD card. Speak with your immigration attorney to make the transition as smooth as possible.
How to Get a Marriage-Based Green Card
While a marriage-based green card is one of the most common ways to become a U.S. permanent resident, it still requires a complicated process that has several stages involving both the petitioner and the beneficiary. They are as follows:
Form I-130 Petition
The first step towards acquiring a marriage-based green card is filing Form I-130, Petition for Alien Relative. The form must be filed by a U.S. citizen or permanent resident on behalf of the beneficiary spouse and must be submitted to the United States Citizenship and Immigration Services (USCIS).
The purpose of this form is to request the agency’s approval to allow your spouse to live in the U.S. as a permanent resident. It also provides you with the opportunity to prove that you have a valid marriage, which is the basis of any marriage-based petition.
To validate your marriage to USCIS, you will need to provide various items that demonstrate a husband-wife relationship, chief among them being your marriage certificate recognized by the law of the country where the marriage took place. Other documents such as joint bank account, family pictures, and related evidence will also help prove your case.
Form I-130 Document Checklist
The I-130 petition must be submitted with the following
- Passport-style color photograph of the petitioner and of the beneficiary taken within 30 days of filing the petition
- Petitioner’s proof of citizenship such as a valid U.S. passport, naturalization certificate, or birth certificate
- Marriage certificate issued by a recognized authority
- Evidence of a bona fide marriage relationship such as a shared residence and finances. Examples for this include joint bank accounts, apartment leases, shared household bills, health or life insurance designations, birth certificates of children born to the marriage, etc.
- In case any or both of you had previously been in a marriage, there must be evidence of legal termination of the previous marriage(s). This will require an annulment or divorce certificate or death certificate.
After the approval of your I-130 petition, USCIS will forward the case file to the National Visa Center (NVC) for processing. The NVC will assign you a case number and give instructions on how to complete Form DS-261, the Choice of Address and Agent form. You will also be notified of the appropriate fees for the application. Once the payment has been made, the NVC will ask you to submit the necessary immigrant visa supporting documents, including the affidavit of support, civil documents, and application forms.
Required Documents for NVC Processing
Generally, you will need to submit the following items for your NVC processing:
- Passport(s) valid for at least six months before your intended date of entry into the U.S.
- Affidavit of Support completed by the petitioning spouse based in the U.S.
- Form DS-260, Immigrant Visa and Alien Registration Application
- Two 2 x 2 photographs, according to these photo requirements
- Completed medical examination forms
- Civil documents: This includes applicable documents such as a birth certificate, documentation of adoption, marriage certificates, court and prison records, marriage termination documentation, military records, police certificates. Depending on the embassy or consulate in charge of your case, more country-specific documents may be required.
After providing all the required documents, the NVC will schedule you for an interview appointment. They will also send a file containing your petition and documents to the U.S. embassy or consulate where your interview will take place. You will then be notified of the visa interview date and time as well as how to schedule a medical exam.
On the date of the interview, you will need to be at the embassy 15 to 30 minutes before the scheduled time. You must also bring your passport as well as other required documents. During the interview process, you will undergo an ink-free, digital fingerprint scan before meeting a consular officer who will interview you. After the interview, you will know if you have been approved or denied.
Entering the United States
If you are granted a visa after the interview, you will be able to use the visa to travel to a U.S. port of entry. Keep in mind that a visa is just a legal travel document; it doesn’t guarantee entry into the United States. U.S. Customs and Border Protection (CBP) officials have the prerogative to either permit or deny admission to the United States. If your request for entry is granted, you will be admitted as a permanent resident.
Getting Your Green Card
Once you have been admitted, your green card will be mailed to you within 120 days of entering the U.S. If after 120 days, you haven’t received your permanent green card, you can contact USCIS via this link.
Green Card Process for a Spouse Living in the United States
If your spouse is already in the United States on a valid nonimmigrant status, the whole process can be completed through USCIS. After the approval of the I-130 petition, the beneficiary will need to file an Adjustment of Status Petition with USCIS using Form I-485.
If the petition is being sponsored by a U.S. citizen, then the I-485 adjustment of status can be filed concurrently (together) with the I-130. This is because you don’t have to wait for your priority date to become current, as a green card is always available for marriage-based green cards. Concurrently filing for a marriage-based green card can expedite the processing time for your petition. Whether concurrent or separate filings, once the I-485 petition is approved, you will be eligible to receive your green card.
Processing Fees for Marriage-Based Green Card
- Form I-130, Petition for Alien Relative: $535
- Department of State (DOS) Processing Fee: $325
- USCIS Immigrant Fee: $220
- Biometric Fee (if applicable): $85
- Affidavit of Support Fee: $120
- Adjustment of Status (Form I-485) Fee: $1,140
- Immigration medical examination fee (costs vary among authorized physicians)
How Our Immigration Attorneys Can Help
No one wants to be separated from their fiancé(e) or spouse, even for a short time during the immigration process. That’s why hiring an immigration attorney is essential for a successful and smooth immigration process. To ensure that you save both time and money, turn to experts you can trust.
Here at SGM Law Group, we handle everything concerning your marriage visa process. From filing the required petitions to preparing you for the consular interview, our dedicated team of experienced attorneys is always ready to help you and your spouse live happy lives in the U.S.
To get in touch with one of our attorneys, you can fill out this contact form and schedule your consultation today.
Marriage Visa Topics
- K-1 Visa
- K-1 Visa Sponsor
- K-1 Processing Time
- Children of U.S. Citizen K-2 Visa
- Fiance Visa vs Spouse Visa