U.S. citizens may petition to have their spouse live permanently in the United States. The spouse of a U.S. citizen is classified as an “immediate relative” in the Immigration and Nationality Act. Since Congress has not limited the number of visas available in this category, spouses of U.S. citizens are immediately eligible for an immigrant visa, unlike other family-based immigrants, such as brothers and sisters of U.S. citizens who must wait 12 to 14 years in order to have a current immigrant visa priority date that permits them to apply for an immigrant visa to immigrate to the United States. The spouse of a U.S. citizen may apply for permanent residence while living within the United States or apply for an immigrant visa abroad.
The U.S. citizen files a Form I-130 Petition for Alien Relative with the USCIS. Together with that form, the foreign national who is the spouse of the U.S. citizen files a Form I-485 Application to Register Permanent Residence or Adjust Status, as well as a several other forms and supporting documents, such as the Certificate of Marriage, the Decrees of Divorce for any prior marriages of either spouse, and the Birth Certificate of the foreign national. A medical examination is also required for the foreign national.
A foreign national who has overstayed his or her period of admission in the United States may still be considered eligible to adjust their status to U.S. Permanent Residency, as long as they entered the U.S. legally and have proof that they were inspected by a U.S. immigration officer at a U.S. Port-of-Entry before entering the U.S. Such proof usually consists of a dated admission stamp from U.S. Customs and Border Protection placed in the foreign national’s passport. There may also be a record, known as an I-94 record, of the foreign national’s date and place of entry into the United States. I-94 records are available through the I-94 website maintained by the U.S. Customs and Border Patrol.
At the same time that an I-130 Immigrant Petition and an I-485 Application for Permanent Residence are filed, the foreign national can file an I-765 Application for Employment Authorization. The USCIS will generally process this application in 90 days and issue an Employment Authorization Document Card (commonly referred to as an “EAD Card”) to the foreign national, that will be valid for one year. Applications for new EAD cards providing a renewal of employment authorization can be filed with the USCIS in the event that there are any lengthy delays in the USCIS processing of the Application for Permanent Residence. With an EAD card, the foreign national will be able to apply for a U.S. Social Security Number and will be eligible for lawful employment in the U.S.
With some exceptions (those who have valid H-1B, H-4, L-1A, L-1B, or L-2 visas), most foreign nationals who would like to travel abroad while awaiting approval of their I-485 Application for Permanent Residency will first need to file a Form I-131 Application for Advance Parole and have their application approved by the USCIS. This application can be filed together with the I-485 Application and the I-765 Application for Employment Authorization. The USCIS will process the I-765 and I-131 Applications together and issue one “combination card” that is valid for one year for both employment authorization and for re-entry into the United States after foreign travel. The Form I-131 allows the applicant to reenter the United States and establishes that, despite travelling abroad, the applicant does not intend to abandon the Form I-485 application for adjustment of status.
The U.S. citizen spouse is also required to submit a Form I-864 Affidavit of Support, which indicates that he or she has sufficient income or assets to support the foreign national spouse at a level that is at 125% of the Federal Poverty Guidelines (for U.S. citizen spouses who are on active duty in the U.S. Armed Forces the required level is 100% of the Federal Poverty Guidelines). By signing the Form I-864 Affidavit, the U.S. citizen spouse agrees to use his or her resources to support the applicant, if necessary. Once the signed Form I-864 has been submitted to the USCIS, if the immigrant spouse receives Federal, state, or local means-tested public benefits, such as welfare or food stamps, the agency providing the benefits may require the U.S. citizen sponsor to repay the costs of those benefits. If the benefits are not repaid, the agency can sue the U.S. citizen sponsor. The U.S. citizen spouse will continue to be subject to this requirement even if the couple gets divorced sometime after the foreign national becomes a U.S. Permanent Resident. The U.S. citizen is no longer subject to this requirement once the foreign national either becomes a U.S. citizen or has accumulated 40 quarters of employment with qualifying contributions to U.S. Social Security.
If the U.S. citizen lives in the United States and their spouse currently lives outside of the U.S., the U.S. citizen can become a permanent resident through consular processing. After the U.S. Citizenship and Immigration Services has processed and approved the I-130 Immigrant Petition it will transfer the petition to the U.S. Department of State’s National Visa Center (“NVC”), which will then notify the petitioner of the next steps that are required in order for the immigrant spouse to be scheduled for an immigrant visa interview at the U.S. Embassy or Consulate in their country of citizenship or current residence. The steps will include providing the NVC with several documents, including a birth certificate and certificate of marriage, and filling out and submitting an online Form DS-260 Immigrant Visa Application. After the required documents have been sent to the NVC and the Form DS-260 has been submitted, the visa applicant will notified of their interview date at the U.S. Embassy or a U.S. Consulate in their country of citizenship or current residence. In addition, the applicant will receive information on which medical clinics to contact to make an appointment for a medical examination.
Once the foreign national successfully completes their interview with a consular officer, an immigrant visa is issued in their passport. At that point, he or she may travel to the United States and, upon being admitted into the U.S. at a U.S. port of entry, they will receive an admission stamp in their passport fromthe U.S. Customs and Border Protection, valid for one year, which will serve as temporary legal proof that they are a permanent resident. Within a few weeks of entering the U.S., the foreign national should receive their Permanent Resident card in the mail.
If you are married to a U.S. citizen and are seeking to become a permanent resident of the United States, please contact us for additional information and to learn how an immigration attorney can help you with the process.
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