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How the spouse immigration process works

If you are an American citizen and you are legally married to a non-citizen, your spouse’s citizenship is not automatic.

There are steps you can take for your spouse to become a legal immigrant. With some modification, these steps also apply if you are a lawful permanent resident with a green card.

Fill out a variety of forms

The first thing to do is fill out Form I-130, an immigrant visa petition with the U.S. Citizenship and Immigration Service (USCIS). You also have to pay a filing fee of $535.

If the USCIS approves Form I-130, your spouse can apply for an immigrant visa. If you are a green card holder and the USCIS approves for I-130, your spouse can be placed on a waiting list for an immigrant visa number.

Once you file Form I-130, your spouse can apply for a K-3 visa that allows your spouse to enter the U.S. legally to live and work while the petition is pending. If you are a legal permanent resident, your spouse can’t come to the U.S. while awaiting form I-130.

If you have been married less than two years, your spouse could receive conditional permanent residence. You and your spouse must file Form I-751 to adjust the conditional status at least 90 days before the expiration of conditional permanent residence. If this isn’t done before the expiration date, your spouse could face deportation.

Spouse in country, out of country

If your spouse is legally within the U.S. when you file Form I-130, you can also file Form I-485 to adjust status to a permanent resident. However, USCIS will examine the marriage for “preconceived intent.” If your spouse entered the U.S. on a student or tourist visa, it was with the intent of returning to the home country. If the student or tourist visa was issued with the intent to marry, then it was invalid and your marriage visa could be denied.

If your spouse lives outside the U.S. when these things occur, the National Visa Center will tell your spouse to go to the nearest U.S. consulate for “consular processing” to continue the immigrant visa application.

Because of the potential for fraud, consular processing consists of not only checking for proper vaccinations and fees, it also includes making sure the marriage is valid. The burden is on the couple to show that the marriage is genuine and they intend to stay together. Some forms of admissible evidence of a genuine marriage include:

  • Comingling of bank accounts such as joint accounts, credit cards or mortgages
  • Joint ownership of property
  • A lease showing joint tenancy
  • Children born into the marriage
  • Affidavits of third parties who swear to the legitimacy of the marriage

This is an outline of the process for a married couple. If you are looking for entrance to the U.S. for your fiancé, the process is different.

In all immigration matters, advice from a qualified, experienced attorney can help you avoid many problems during the visa process.

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