Petitioning for the Foreign-Born Spouse
The first mandatory step to take to apply for your foreign-born spouse’s “green card” is for the United States (“U.S.”) citizen or lawful permanent resident (“LPR”) spouse to file the United States Citizenship and Immigration Services (USCIS) Form I-130, Petition for Alien Relative. This application (known as the “petition”) is what establishes the foundation for any qualifying relative to apply for a “green card” or lawful permanent residency status in the United States.
The Form I-130 is filed by the U.S. citizen or LPR spouse (“Petitioner”), together with the Form I-130A, Supplemental Information for Spouse Beneficiary, which is signed by the foreign-born spouse (“Beneficiary”). Together with these forms, you will need to submit supporting evidence that proves:
- That the petitioner is a U.S. citizen or lawful permanent resident;
- The citizenship/nationality of the beneficiary;
- That both the petitioner and beneficiary are legally able to marry (i.e. divorce or annulment decrees or death certificate of how previous marriage terminated);
- Proof of the “bona fides” of the couple’s marriage: children’s birth certificates, joint bank accounts, life and/or health insurance, rental or lease agreements, income tax returns, photographs of the wedding and other joint activities, etc.)
Note: Based on a U.S. Supreme Court decision, Obergefell v. Hodges, same-sex spouses of U.S. citizens and Lawful Permanent Residents (LPRs), along with their minor children, are now eligible for the same immigration benefits as opposite-sex spouses.
The current filing fee for the I-130 Petition is $535.00. There is no fee to file the Form I-130A as it is a required form to submit when filing for a spousal petition. It is always best to check the USCIS website to verify the current fee and to download the current Forms I-130/I-130A
Where the Forms I-130/I-130As packet will be sent depends on where the petitioner lives. If the petitioner lives in the United States, the Form I-130 packet should be filed at the Chicago or Phoenix Lockbox, depending where in the U.S. the petitioner lives and whether the beneficiary will be applying for his or her “green card” in the United States (“Adjustment of Status” process) or in his or her home country (“Consular” process). Visit the USCIS link for the filing address at https://www.uscis.gov/i-130-addresses
If the beneficiary is in the United States, is eligible to adjust their status to lawful permanent residency, and an immigrant visa is available, the I-130/I-130A packet can be concurrently filed with the USCIS Form I-485, Application to Register Permanent Residence or Adjust Status, to the designated address.
If the U.S. citizen petitioner and beneficiary reside overseas in a country where USCIS has an international office, the Form I-130 packet may be filed at the USCIS Chicago Lockbox facility. The address is located at the website link posted above. The petitioner also has the option of filing the Form I-130 packet at the USCIS international office in the country where the petitioner and beneficiary reside. Check the website link for the USCIS international offices overseas at https://www.uscis.gov/about-us/find-uscis-office/international-immigration-offices
For a U.S. citizen petitioner and the beneficiary who live overseas in a country where USCIS does not have an international office, you may file for your foreign-born spouse at the U.S. Embassy or consulate that has jurisdiction over the country where you live only there are “exceptional circumstances” and the USCIS Field Office Director approves the processing of your Form I-130 packet.
Some examples of “exceptional circumstances” are:
- Military emergencies
- Medical emergencies
- Threats to personal safety
- Petitioner has recently become a U.S. citizen
- Short notice of job relocation
Note: Maybe provide a link to the Memo re: “Exceptional Circumstances”? Exceptional circumstances (PDF, 61 KB) I can send you the USCIS Memo if you think we should have it posted.
Applying for Your “Green Card”
With the Form I-130/I-130A packet ready to file, the next steps that will follow will depend on whether the beneficiary can already apply for the “green card” and most importantly, the location of where the beneficiary can or will want to apply.
When a beneficiary can apply for the “green card” will depend on whether the petitioner is an LPR (a “green card” holder) or a U.S. citizen.
Petitioner is a Lawful Permanent Resident
A lawful permanent resident petitioning for their foreign-born spouse will first send their petitions to the USCIS for processing. Once approved the petitioner will receive a Form I-797, Notice of Action. On the Form I-797, a “Priority Date” will be noted and this is the date to track when an immigrant visa is available for the beneficiary. The beneficiary falls under the “Family Preference” category, F2A, that also includes minor children (20 years old and below) of the beneficiary. Under this category, the petitioner only files one Form I-130 and includes the minor child/ren in the form. The minor child/ren is considered a “derivative” of the beneficiary’s petition.
The waiting period for an F2A immigrant visa to be available depends on what country the beneficiary is from. Below is an example of the availability of immigrant visas for spouses and minor children of lawful permanent residents (F2A) for the month of May 2019. The dates signify the “priority dates” that is noted on the I-797 approval of the I-130 petition
Once you have your approval notice and you are a lawful permanent resident you can track the priority dates on a monthly basis at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
Once the immigrant visa is available, then the application for the “green card” will have to be through “consular processing.” If the beneficiary of a lawful permanent resident is in the United States, please consult a qualified immigration attorney because there will be “red flag” issues such as presence in the U.S. without a valid immigration status and the subsequent issue of unlawful presence once the beneficiary returns to their home country for “consular processing”.
If the petitioner applies for naturalization and becomes a U.S. citizen, then the petition for the beneficiary is upgraded to that of an “immediate relative” and an immigrant visa is available immediately. For the derivative child included in the beneficiary’s initial Form I-130, the naturalized U.S. citizen petitioner will have to file another I-130 petition for his or her minor child. Since the child is a minor when petitioning, the child will be categorized as an “immediate relative,” therefore, will have an immigrant visa available also.
For an “immediate relative” beneficiary who is in the United States, even if not in valid immigration status, the beneficiary may be able to adjust his or her status to that of a lawful permanent resident. However, it is important to consult with a qualified immigration attorney to discuss any other immigration issues you may be concerned or if the beneficiary has any inadmissibility issues discussed in the Adjustment of Status section.
A spouse of a U.S. citizen is processed differently than a spouse of a lawful permanent resident. As stated above, a spouse of a U.S. citizen is considered an “immediate relative” and, therefore, does not have to wait in line for an immigrant visa. There is an immigrant visa immediately available and depending on where the beneficiary spouse resides, he or she can either file an “adjustment of status” in the United States or “consular process” in his or her home country.