How Does My Spouse (Husband or Wife) Get an Immigrant Visa?
The first step is to file an I-130 Immigrant Petition for the foreign citizen spouse to immigrate to the United States. The I-130 petition is filed with the U.S. Citizenship and Immigration Services (USCIS) Service Center in the United States that serves the area where the U.S. petitioner resides. Sometimes, a U.S. citizen living abroad may file an I-130 immigrant Petition with the U.S. Embassy or U.S. Consulate in the foreign country.
What is a “Spouse”?
A spouse is a legally wedded husband or wife. Merely living together does not qualify a marriage for immigration. Common law spouses may qualify as spouses for immigration, but only if the laws of the country where the common law marriage occurs recognizes common law marriages and grants them all the same rights and obligations as a traditional marriage. In cases of polygamy, only the first spouse may qualify as a spouse for immigration.
Minimum Age Requirement for the US Citizen Petitioner
There is no minimum age to file an I-130 Immigrant Petition for a spouse for immigration. However, the US citizen petitioner must be at least 18 years old and reside in the U.S. before he or she may sign the Form I-864 Affidavit of Financial Support. The I-864 form is required for an immigrant visa for spouses and other relatives of U.S. petitioners.
U.S. Domicile (Residence) is Required
The U.S. citizen petitioner must have a domicile (residence) in the United States before an immigrant visa may be issued to his or her foreign national spouse. This is because a U.S. domicile is required to file an I-864 Affidavit of Support and this form is required for all spousal immigration cases.
Applying for an Immigrant Visa
After the USCIS Service Center approves the I-130 immigrant petition, it sends the petition to the National Visa Center (NVC) of the U.S. Department of State. The NVC conducts preliminary case processing and then forwards the approved petition to the U.S. Embassy or U.S. Consulate in the country where the foreign citizen spouse resides. An appointment package is sent to the visa applicant. The appointment package gives the applicant an interview date and includes instructions on where to go to have the required medical examination.
Vaccination Requirements
In general, applicants for immigrant visas are required to have all of the following vaccinations:
- -Mumps
- -Measles
- -Rubella
- -Polio
- -Tetanus and diptheria toxoids
- -Pertussis
- -Influenza type B
- -Hepatitis B
- -Varicella
- -Pneumococcal
Does a Child Have Derivative Status?
No. A child does not have derivative status in an I-130 Immediate Relative (IR) petition. This is different from the family second preference (F2) petition. A child is included in his or her parent’s F2 petition. A child is not included in his or her parent’s IR petition. A U.S. citizen must file separate I-130 immigrant petitions for each of his or her children. If you upgrade a family second preference (F2) petition for your spouse to an IR petition, because you became a naturalized U.S. citizen, and you did not file separate I-130 petitions for your children when you were a lawful permanent resident (green card holder), then you must do so. Remember that children born abroad after a person became a U.S. citizen may potentially qualify for derivative U.S. citizenship.
Termination of All Previous Marriages
U.S. law does not allow polygamy. If either spouse was married before, he or she must show that all previous marriages were terminated before the current marriage. The death and divorce certificates that show termination of marriages must be legal and verifiable in the country that issued them. Divorces must be final.
What Is Conditional Residence?
If the couple has been married for less than 2 years when the foreign citizen spouse enters the United States on an immigrant visa, the permanent resident status is considered “conditional”. The immigrant visa is a Conditional Resident (CR) visa, not an IR (Immediate Relative) visa. The couple must apply together with the U.S. Citizenship and Immigration Services (USCIS) to remove the “condition” within the 90 day period BEFORE the foreign citizen spouse’s 2 year conditional residency expires.
What If the Applicant is Ineligible for a Visa?
Certain conditions and activities may disqualify the applicant for a visa. Examples of these ineligibilities are:
- -Drug trafficking
- -Having HIV/AIDS
- -Overstaying a previous visa
- -Practicing polygamy
- -Advocating the overthrow of the government
- -Submitting fraudulent documents
If a person is ineligible for an immigrant visa due to one of the above grounds of inadmissibility, a waiver may be available. He or she should seek the advice of an immigration attorney to determine if he or she qualifies for a waiver of inadmissibility.
For consultation with an Immigration Lawyer, please CALL US at (626) 642-8066 or Complete the our Contact Form. An attorney in our office would be happy to assist you.
The information on this website is not to be considered legal advice. Such information is intended to educate members of the public generally and is not intended to provide solutions to individual problems. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek advice from an experienced immigration attorney regarding specific case situations.
