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Marriage and Fiancée Petitions - Immigration Law in Oakland and BerkeleyU.S. Immigration law provides three different methods for U.S. citizens to bring significant others to the United States from abroad for purposes of living together as husband and wife. They are the Alien Spouse Immigrant Visa, the K-1 Fiancée Visa, and the K-3 Visa for Spouse.If the spouse of a U.S. citizen is already within the U.S., the U.S. Citizen may be able to Petition for their spouse and process towards permanent residence while in the U.S. This is called Adjustment of Status. Because each of the different processes described below can be subject to different timing, cost and strategic considerations, you should speak with your immigration attorney to determine the most appropriate and advantageous manner in which to proceed. Alien Spouse Immigrant Visa U.S. Citizens married to a foreign national may petition for their spouse to immigrate to the United States, meaning get their “Green Card” or “Permanent Residence”. The U.S. Citizen begins the process by filing a petition (Form I-130, Petition for Alien Spouse) with the U.S. Citizenship and Immigration Services (USCIS) Service Center designated for the place the U.S. Citizen resides. Petitioners permanently residing abroad in the same country as their spouse (for at least the past 6 months) may under certain circumstances file the petition with the Department of Homeland Security/Immigration office in that country. The U.S. citizen petitioner must complete the Petition for Alien Relative (I-130) and related forms, and submit them with proof of his or her U.S. citizenship (U.S. passport or birth certificate), proof of termination of previous marriages for both the petitioner (U.S. citizen) and beneficiary (alien spouse), the marriage certificate, and one photograph of each. The prevailing fee for filing the petition must also be remitted. Because of circumstances relevant to each case, your immigration attorney will assist in determining which additional forms and documents may be required. Upon approval of the Petition, the USCIS Service Center that rendered the adjudication will forward it to the National Visa Center (NVC) for further processing. The NVC then issues fee bills for the Immigrant Visa (Form DS-230) and Affidavit of Support (Form I-864) fees. Once those fees are paid, the NVC will initiate processing of the immigrant visa by providing a packet of instructions (packet 3) to the beneficiary and the beneficiary’s representative (immigration lawyer). It ordinarily includes the form DS-230 Part I (Application for Immigrant Visa and Alien Registration), which must be completed and returned immediately, the form DS-2002 (Instructions for Immigrant Visa Applicants), the instructions for the Affidavit of Support (I-864), the photo instructions, and the information sheet on vaccination requirements. Since December 1997, U.S. immigration law requires all applications for family-based immigrant visas (including spouses) to be accompanied by a contractually binding Affidavit of Support (Form I-864), which has been signed by the petitioner. Upon receipt of the notification that the beneficiary is in possession of all required documents and completion of all required administrative steps, appointments for the medical examination and the interview at the U.S. consulate or embassy abroad will be set. If all of the documentation submitted is complete and the consular officer determines that the applicant is eligible, the immigrant visa is usually issued within several days after the interview and is ordinarily valid for six months from the date of issuance. Minor unmarried children (under 21) of the alien spouse ordinarily may accompany their parent and immigrate to the United States, but frequently the U.S. citizen spouse must file a separate petition for their foreign step-child. Your immigration attorney will advise you of the process for including your alien spouse’s minor children. K-1 Fiancé/e Visa U.S. Immigration law provides for K-1 Fiancé visas for foreign nationals to come to the United States to marry a U.S. citizen and then apply for permanent residence (Adjustment of Status). To obtain a K-1 visa for his or her fiancée, an U.S. citizen must file a petition (Form I-129F, Petition for Relative or Fiancé/e) with the United State Citizenship and Immigration Service (USCIS) Service Center having jurisdiction over the place of the petitioner's residence in the United States. Unlike the Form I-130, Petition for Alien Spouse, a K-1 Fiancé/e petition may not be submitted (under certain circumstances) directly to a U.S. embassy or consulate abroad. At the time the Petition is submitted, the U.S. citizen petitioner must ordinarily be able to prove he or she has previously met the foreign fiancée in person within the past two years. Certain limited exceptions can be made for this requirement. The U.S. citizen and foreign fiancée must also demonstrate that they have a real relationship and are free to and intend to marry within 90 days of the foreign fiancé’s entry into the U.S. Your immigration attorney will advise you what information and documentation is necessary to meet these requirements. Once approved by USCIS, the petition is forwarded to the U.S. embassy or consular office where the alien fiancé/e will apply for his or her visa (ordinarily in the country of nationality of the foreign fiancé/e). An approved petition is valid for a period of four months from the date of USCIS action, though it may be revalidated by the consular officer upon the U.S. citizen petitioner providing evidence that he or she still wishes to proceed under the conditions of the visa. Upon receipt of an approved petition, the U.S. embassy or consulate abroad notifies the foreign national fiancé, and their representative (immigration lawyer) and provides instructions as to how the embassy or consulate coordinates the K-1 visa application process. In addition to the appropriate K-1 visa application forms and fee, documents that are ordinarily required include: the foreign fiancé’s birth certificate and valid passport, proof of dissolution of any previous marriages for both the U.S. citizen petitioner and foreign beneficiary, police certificates for the foreign fiancée for all countries in which they have resided since they were 16 years old, a medical examination, evidence the U.S. citizen petitioner can support the foreign beneficiary, photographs, and evidence that the couple has a genuine relationship and anticipate marrying in the U.S within 90 days of the foreign fiancé’s entering the country. Your immigration attorney will assist you in determining what other documentation may be necessary, given the circumstances in your case. Once the processing of the K-1 visa is completed and the applicant has all necessary documents, a consular officer will interview the fiancée. Upon confirmation that the foreign fiancée is eligible, a visa is issued, and is normally valid for one entry during a period of six months. Minor unmarried children (under 21) of a K-1 beneficiary are eligible for a K-2 visa. Ordinarily a separate petition is not required provided the appropriate petition and visa application forms are correctly prepared to provide for such accompanying children. A separate petition is not required if the children accompany or follow the alien fiancé within one year from the date of issuance of the K-1 visa. K-3 Spouse Visa The K-3 visa begins like the Alien Spouse Immigrant Visa process (filing Form I-130 at a USCIS Service Center in the U.S.) but ends up more like the K-1 Fiancée visa in terms of visa processing and timing. The K-3 process is therefore a hybrid process that permits U.S. citizens already married to foreign nationals to bring their spouses to the U.S. and complete permanent residence processing once there. This usually results in the foreign spouse being permitted to enter the U.S. appreciably sooner than with traditional Alien Spouse Immigrant Visa processing, whereby the foreign spouse enters the U.S. as a permanent resident. Shortly after the U.S. citizen spouse files Form I-130, Petition for Alien Relative, USCIS will issue a receipt notice. Once the receipt notice is received, the K-3 visa petition (Form I-129F – the same form as is used with a K-1 visa petition) may be submitted to USCIS on behalf of the foreign spouse by their U.S. citizen husband or wife. The primary reason the K-3 visa process usually moves significantly sooner than Alien Spouse Immigrant Visa processing is that whereas in Alien Spouse Immigrant Visa processing, the approved Form I-130, Petition for Alien Relative must first go through the National Visa Center, an approved K-3 Petition (Form I-129F) goes directly from USCIS to the U.S. embassy or consulate abroad. Embassies and consulates also sometimes schedule interviews for K-3 visa applicants sooner than Alien Spouse Immigrant Visa interviews. The foreign spouse's minor unmarried children (under 21 years of age) may also be accompany or follow their parents on a K-4 visa. Once in the United States, the K-3 spouse and any accompanying K-4 children must file a Form I-485 (Application for Adjustment of Status) to complete their immigration to the U.S. Individuals entering with K-3 and K-4 visas will become permanent residents in the U.S. and receive their “Green Card” when both the Form I-130 petition and their Form I-485 application have been approved. Adjustment of Status (Based on Marriage to U.S. Citizen) This section addresses the process of obtaining permanent residence, or a “Green Card” for spouses of U.S. citizens, who are already in the United States. Permanent residents and their spouses should refer to the Family Petitions section of this site to learn about the relevant process and timing considerations. Spouses of U.S. citizens, along with minor unmarried children and parents of U.S. citizens over 21, are considered "immediate relatives" under U.S. Immigration law. This means that they are not subject to the often lengthy backlogs that result from the numerical quota limitations placed upon other degrees of relations to U.S. citizens and spouses and other family members of permanent residents. The result of being an “immediate relative” essentially means that such an eligible individual can apply for adjustment of status to permanent residence right away, without waiting for an immigrant visa number to become available. For a spouse of a U.S. citizen to be eligible to adjust status to permanent residence, they must be able to establish that the marriage is bonafide, meaning genuine and not for the sole purpose of obtaining immigration benefits. They must also be able to demonstrate that they are non inadmissible (in this case meaning ineligible to adjust status). Circumstances that can render an individual inadmissible include certain criminal conduct or convictions, certain prior immigration violations such as fraud and having contracted certain highly-contagious diseases such as HIV or tuberculosis. A common issue is whether an individual who is not lawfully residing in the U.S. (undocumented or “out of status”) is eligible to adjust status to permanent residence within the U.S. upon marriage to a U.S. citizen. Generally, U.S. Immigration law makes a distinction between 1) Individuals who are unlawfully present as a result of being lawfully admitted into the U.S. and inspected by an immigration officer upon entry but later overstayed their lawful status (such as visa status), and 2) Those who snuck into the country, or entered without inspection (also called “EWI”). Individuals who are unlawfully present in the U.S. as a result of being lawfully admitted after being inspected by an immigration officer upon entry, but later overstayed their lawful status are generally permitted to adjust status while in the U.S., and are not required to leave to process their green card application, irrespective of how long they have overstayed their authorized period of stay. However, those who entered without inspection (EWI) are generally not permitted to adjust status and must leave the United States and apply for an Alien Spouse Immigrant Visa [this should link to the section above] (Please see the paragraph below about an exception to this rule). This can be a problematic distinction because if an individual had overstayed their authorized period of time by 180 days, they can be subject to a three-year bar to entering the U.S, and those who overstayed by 365 days or longer can be subject to a 10-year bar. To learn about how these bars can be waived, please see the section about Waivers of Inadmissibility & Excludability [this should link to that page]. An exception to the general rule that those who entered without inspection (EWI) are generally not permitted to adjust status is provided for under section 245i of the Immigration and Nationality Act. For an individual who is EWI to be eligible, they must be the beneficiary of an Immigrant Petition or Labor Certification Application initiated prior to January 14, 1998, or initiated before April 30, 2001, where the individual can prove they were present in the U.S. on December 20, 2000. The application of this exception is complex and you should discuss it with your immigration attorney. When this exception does apply, however, the applicant must pay an additional $1000.00 to the USCIS in government filing fees, in addition to the usual filing fees for an adjustment of status application. The process of an eligible spouse applying for adjustment of status to lawful residence consists of the U.S. citizen submitting a visa petition (Form I-130, Petition for Alien Relative) concurrently with the alien spouse beneficiary’s Form I-485, Application to Register Permanent Residence or Adjust Status. Other forms that are submitted with the application are the Biographical Data forms (Forms G-325A) for both the husband and the wife, Form I-864, Affidavit of Support, from the petitioning U.S. spouse, Form I-765, Application for Employment Authorization (which permits the applicant to work in the U.S. during the time the adjustment application is pending) and Form I-131, Application for Advance Parole Travel Document (which permits the applicant to travel outside of the U.S. during the time the adjustment application is pending). It is important to note that those applying for adjustment to permanent resident status must receive advance permission to return to the United States for travel outside of the country. Otherwise, they will have been considered to have abandoned their application with USCIS and may not be permitted to return to the United States. This advance permission is called Advance Parole. It is also important to note that not all applicants for adjustment of status should apply for and/or utilize advance parole, as they may be barred from re-entry as a result of unlawful presence or other grounds of inadmissibility and may not be permitted to re-enter the U.S., or adjust status upon return, even if they are admitted with the Advance Parole. Required documents for a marriage-based adjustment of status application (and related forms) generally consist of passport photos of both the U.S. citizen and foreign spouse, proof of the citizenship status of the U.S. citizen petitioner, a copy of the marriage certificate, copies of documents evidencing termination of any previous marriages of either the U.S. citizen or foreign spouse, and the appropriate filing fees. What other documents are required must be determined on a case-by-case basis, dependant on the circumstances in each matter. Your immigration attorney will advise you what other documentation is necessary. After properly submitting the application to adjust status, with related forms and documentation, the USCIS will issue receipt notices for all applications submitted and soon issue a biometrics (fingerprint) notice, for the applicant to appear at a USCIS application support center and be fingerprinted. Several months later (usually) the U.S. citizen Petitioning spouse and his or her foreign spouse must attend an interview with an immigration officer, who will determine if the marriage is genuine and whether the foreign spouse in ineligible for any reason to adjust status to permanent residence. If the couple has been married for less than two years at the time the foreign spouse becomes a permanent resident, the period of permanent residence (green card) will expire after two years. This is an additional check against marriage fraud for the purpose of obtaining immigration benefits. If still married and residing together, both spouses must submit a joint petition (Form I-751, Petition to Remove Conditions on Residence) to remove the conditions on residence. This petition must be submitted within the 90-day period immediately preceding the end of the two years of approved conditional residence (ending with the date indicated on the green card that the card is valid through). If the couple is no longer married when it is time to file Form I-751, the foreign spouse may still be permitted to continue to reside permanently in the U.S. and keep their green card. An individual in this circumstance should speak to their immigration attorney about the proper manner to proceed as soon as possible. |
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