Client: Nonimmigrant Temporary Visa Holder
Client’s Country of Origin: India
Case Type: I-130 Petition for Alien Relative; Marriage to US Citizen
Date of Application: July 2018
Date of Approval: February 2019
Our client, a citizen of India, was present within the US as an international student. During his study, he met a US citizen woman and fell in love. After some time, the couple united in marriage. The couple then was faced with adjusting our client’s nonimmigrant status, establishing their marital relationship, sponsoring our client for eligibility to become a lawful permanent resident—all before his student visa expires.
The couple consulted with Herman Legal Group counsel at the office located in Buffalo, New York. For timely purposes, they concurrently filed forms I-130 Petition for Alien Relative and I-485 Application to Adjust Status.
They provided a plethora of evidence in order to establish a bona fide marital relationship to avoid any hiccups in the process. Two months later, they were scheduled for their interview with USCIS officials. The couple proceeding to attend the interview and felt confident that all would go well and even brought many supporting documents to show the presiding officer.
Later that year, our clients received documents in the mail requesting more evidence in order to finalize the adjudication of their applications. The USCIS raised the issue that the couple did not supply valid documents regarding our client’s legal divorce in a prior marriage that occurred overseas in India.
The Service provided that, for specific religions, the US Department of State’s Visa Reciprocity Schedule for Indian states that certified copies of divorce decrees of Christian, Hindu, Parsi, and Sikh divorces must be obtained and supplied (for immigration purposes). Furthermore, a certificate from the Kazi, the Muslim religious leader, must be provided to document the divorce that occurred.
The Service basically concluded that because our client’s application did not include this very specific document, his previous marriage was not validly terminated, therefore he did not meet the requirements to show a legally terminated marriage to proceed with his current marital relationship that sponsors his visa application.
A great wave of turmoil engulfed our client: Why was my application denied when my previous marriage was in fact legally terminated? Why wasn’t I asked for this document at my interview? What happens now?
Attorney Richard Herman assisted with the matter—he addressed that our client and counsel were unaware of the specific information regarding the Visa Reciprocity Schedule was necessary to the original filing of the application, therefore it was inadvertently omitted. Attorney Herman also provided that our client had brought this certificate to the initial interview, but did not bring it to the attention of the officer as it was unrequested.
However, we then submitted to the Service a certificate from the Kazi establishing that the prior marriage was terminated under the laws of India. In addition, we also submitted supporting evidence, such as a notarized statement issued from the Kazi attesting to the validity of the certificate as well as an expert statement issued from a licensed attorney in India attesting to the validity of the divorce decree. Overall, our client’s application to adjust status was approved successfully and on time while remaining in legal status.
If your spouse resides outside the US, it could take 12 to 18 months before he or she is allowed to enter the US. If you are not married yet and you are planning to marry before filing your spouse’s permanent resident application, you might want to consider filing for a fiance visa instead (see below) so that your spouse can enter the US sooner. If you are already married, however, you cannot apply for a fiance visa. Permanent residence involves a two-step process.
Step 1: Your Sponsorship Application
I-130 Petition for Alien Relative
The procedure for filing the sponsorship application — Form I-130 and Form I-130A — is the same as for Pathway 1, except that you cannot send your sponsorship application and your spouse’s permanent residence application in a single package — you must receive approval of Form I-130 before your spouse can apply for permanent residence. Following are the steps in the process:
- Complete and sign Form I-130 (Petition for Alien Relative) and Form I-130A (Supplemental Information for Spouse Beneficiary). It is you who must sign and file these forms, not your spouse.
- Prepare all supporting documents required by the instructions for the forms you file, including proof of your US citizenship, your marriage certificate, proof of the non-fraudulent nature of your relationship, proof of divorce if either of you has been previously married, four passport-style photos (two of you and two of your spouse) and a cover letter (optional), etc.
- Prepare payment of the filing fee ($535) by check, money order or (by filing Form G-1450), credit/debit card.
- In about two weeks you should receive an official receipt notice for your I-130 and I-130A.
- Notify the USCIS if your mailing address changes.
- Respond to any USCIS Request for Evidence that you receive. Although not all applicant receives a Request for Evidence, there is nothing uncommon about it. If you receive one, you will be required to submit additional evidence to process your sponsorship application. If you receive one, it will probably arrive a few weeks after you submit your sponsorship application package.
- You should receive an Approval Notice within 7 to 10 months.
Step 2: Your Spouse’s Application for Permanent Residence
Interracial Couple
If your spouse resided in the US, then he/she would file Form I-485. Since your spouse resides abroad, however, there will be no need to file this form. Instead, your spouse should file an application for a U.S. immigration visa. Technically, your spouse will be considered a US permanent resident as soon as he or she has passed through US immigration screening, although the green card will not arrive immediately.
- Once The USCIS approves forms I-130 and I-130A, it will transfer your case to the National Visa Center (NVC).
- The NVC will assign your spouse an NVC Case Number and Invoice ID Number. It will notify your spouse of these numbers by sending a Welcome Letter.
- Once your spouse receives a case number, he or she must file Form DS-261, which simply tells the State Department how to communicate with you while your visa application is pending. There is no filing fee, and processing takes two or three weeks.
- Pay the State Department a $445 filing fee online at the Immigrant Visa Invoice Payment Center. You will need a bank routing number and a checking or savings account number from a U.S. bank. You will also need your spouse’s NVC Case Number and Invoice ID Number from the Welcome Letter.
- Complete and sign Form I-864 (Affidavit of Support) and send it to your spouse along with financial documentation that will include your most recent tax return..
- Your spouse must file the immigration visa application (Form DS-260) online and send Form I-864 and all supporting documents to the NVC.
- The NVC might send a Request for Evidence within one to two months of your filing date if it needs more documentation to process your application.
- The NVC will schedule an interview at the nearest US embassy or consulate within three to five months after the immigration visa application is filed. Your spouse will receive a visa appointment letter that will probably include a list of documents or other materials to take to the interview.
- Before the interview: Your spouse must complete a medical examination with a local doctor approved by the USCIS. The cost should be around $200, and your spouse will be given a sealed envelope to take to the visa interview. The seal must remain unbroken.
- Before the interview: Your spouse must access the website of the embassy or consulate that will conduct the interview, and provide an address where his/her passport can be mailed once an immigration visa is stamped onto it. The website will contain instructions on how to do this.
- Before the interview: Your spouse must make a fingerprinting appointment and submit to fingerprinting at the local visa application support center (in most countries, it is located at a different address than the embassy or consulate).
- Your spouse must attend the green card interview (you will not be invited to attend), where he/she will be asked questions to determine whether the marriage is legitimate. Your spouse should bring the documentation and materials requested in the visa appointment letter, including his/her passport and the sealed results of the medical exam.
- If the interview is successful, a US immigration visa will be stamped onto your spouse’s passport. If there is a delay in making the decision (which is not uncommon), your spouse’s passport will be mailed to him/her.
- You must pay a $220 Immigrant Fee online. This fee covers the production and delivery of your spouse’s green card. It will be mailed to your spouse’s US address within two to three weeks after he/she arrives in the U.S.
- If you have been married for less than two years as of the date that your spouse enters the US, your spouse will be granted conditional permanent residence (“CR1”), which will require an additional interview two years later to remove the condition.
If your spouse already resides in the United States, he or she will need to adjust his or her immigration status to permanent residence. It is important that your spouse is in legal immigration status when the application package is submitted and during the entire time the application is pending. The entire process should take about a year or perhaps a bit longer.
Following is a step-by-step guide, written from the point of view of the sponsor:
- You must complete and sign Form I-130 (Petition for Alien Relative) and Form I-130A (Supplemental Information for Spouse Beneficiary). It is you who must sign and file these forms, not your spouse.I-130 Petition for Alien Relative
- Your spouse completes and signs Form I-485 (Application to Register Permanent Residence or Adjust Status).
- You complete and sign Form I-864 (the Affidavit of Support, proving you have access to sufficient financial resources to support your spouse in the US without public assistance).
- Your spouse completes and signs Form I-765 (work permit) if he/she intends to work in the United States while the permanent residence application is pending.
- Your spouse completes and signs for I-131 (travel permit) if he/she plans to travel outside the United States while the permanent residence application is pending.
- Your spouse submits to a medical exam from a “civil surgeon” (a USCIS-approved doctor). The cost will be about $200, paid to the doctor, and the doctor will issue Form I-693 in a sealed envelope. The seal must remain unbroken.
- Prepare all supporting documents required by the instructions for the forms you file, including proof of your US citizenship, proof of your spouse’s nationality, your marriage certificate, proof of the non-fraudulent nature of your relationship, a divorce document if either of you was previously married, your tax returns and other financial documents, your spouse’s most recent Form I-94 (proof of legal entry to the US), a copy of your spouse’s US visa, four passport-style photos (two of you and two of your spouse) and a cover letter (optional), etc.
- Prepare the filing fees ($535 for Form I-130; $1,140 for Form I-485 and $85 for biometrics, for a total of $1,760). You can pay by check, money order or (by filing Form G-1450), credit/debit card.
- Mail the complete application package to the appropriate USCIS address based on your state of residence.
- Wait about two weeks to receive receipt numbers from the USCIS for each of forms I-130, I-130A, and I-485 (and for I-765/I-131 if these forms were submitted).
- Wait about a month after you submit your applications to receive a date and location for your spouse’s biometrics appointment. It will probably take place at a USCIS office near you.
- Your spouse must attend the biometrics appointment. He or she will be fingerprinted and photographed, and certain security and background checks will be undertaken based on this information. Your presence will not be required.
- Respond to a USCIS Request for Evidence, if you receive one. This document requests missing or additional evidence that is necessary to process the applications. You may not receive one at all, but if you do, it will probably arrive two or three months after the application package is submitted.
- Wait about five months after the applications are submitted to receive approval (or denial) of the work permit and travel permit applications if these were submitted in the first place.
- Wait for the USCIS to send you the date and time for the green card interview at the nearest USCIS office. You must attend this interview together with your spouse, although you may be interviewed separately. The USCIS will inform you of what documentation you need to bring with you to the interview. If your interview is successful, your spouse’s application might be approved immediately. It is also possible that some time will elapse between the interview and the approval.
- Wait two or three weeks for your spouse’s green card to arrive in the mail.
- If you have been married for two years, your spouse’s green card will be marked “IR1”, which means that it is unconditional. If you have been married for less than two years, the green card will be marked “CR1”, which means that it is conditional and it will expire in two years.
- Notify the USCIS if your mailing address changes.
- If your spouse’s green card is marked CR1, the USCIS will notify you of another interview that you must attend together with your spouse, to remove the condition on your spouse’s green card. The interview will probably be held not long before your spouse’s green card expires.