Family Immigration

To be a U.S. citizen marrying a citizen of another country (a foreign national) it can be a very exciting, yet complicated time when trying to bring that person to the United States. If various family immigration procedures are not followed correctly, you may be separated from your spouse for months, and possibly years. In general, it can take approximately six to twelve months for a foreign national to receive United States permanent residence (green card). However, a new visa category (K-3) is now available to spouses of U.S. Citizens. This new visa option is a quicker way to bring your spouse to the United States. It is important to note, that while your spouse may enter the United States, he/she must then apply for “adjustment” of status.

Please contact the attorneys at The Fleischer Law Firm to see which family immigration procedure is right for you. We have experience years of experience with this process, and can anticipate what Immigration will ask for, thereby saving valuable time. We provide our clients with samples and other recourses that will help in the immigration and marriage process. Whether your spouse is currently living in the United States, or abroad, we can help.

To be a U.S. citizen marrying a citizen of another country (a foreign national) it can be a very exciting, yet complicated time when trying to bring that person to the United States. If the procedures are not followed correctly, you may be separated from your spouse for months, and possibly years. In general, it can take approximately six to twelve months for a foreign national to receive United States permanent residence (green card). This article will outline the procedure for a U.S. citizen filing for a green card for his or her spouse.

We will first begin with filing of a petition for a foreign national who is currently residing in the United States. Most importantly, this foreign national must have entered the country legally, with a valid visa (or visa exempt) and I-94 (little white entry card – or sometimes green entry card). If the foreign national has entered illegally, or without inspection, there is little that can be done without the foreign national leaving the country, and most likely being subject to the possible three or ten year bars to return to the United States.

If the foreign national entered legally, he or she will apply for a ‘one step’ adjustment of status. After marrying, the U.S. citizen spouse (Petitioner) will file Immigration Form I-130 along with the appropriate fee and accompanying documentation including evidence that will show that the couple has a bona fide marriage. This will be filed at the local office controlling the residence of the beneficiary. The United States Citizenship & Immigration Services (USCIS) prefers to see that the Petitioner and the Beneficiary (foreign national) show a co-mingling of assets, for example, a joint lease, mortgage, bank accounts, insurance policies, joint telephone or cable bills, etc. This evidence is not required, yet is highly preferred. If none of this evidence is attainable, the Petitioner can show photos of the couple together, as well as congratulation cards, affidavits from friends and family, and other secondary evidence. The more information you can provide Immigration in the beginning of the process, the easier the process will be.

The second part of this one-step adjustment of status is the foreign national’s application for permanent residence, which is filed on Form I-485. This part is filed simultaneously with the I-130. Before filing, the foreign national must complete a medical exam from a USCIS approved doctor, and also show that he or she entered the United States legally with inspection.

An Affidavit of Support on Form I-864 must be included in the application for adjustment of status. The Affidavit of Support is used to show that the foreign national will not become a ‘public charge’. Therefore, the U.S. citizen must show that he or she can ‘financially support his or her spouse’. In order to show ‘financial stability’, the Petitioner must provide USCIS with his or her tax records (IRS Form 1040) for the past three years, along with IRS forms, W-2 for all three years, and a letter from his or her employer showing present employment. If the U.S. citizen Petitioner does not meet the financial standards set by the U.S. government, a ‘co-sponsor’ must be found. The Affidavit of Support is a binding contract between the U.S. government and the U.S. citizen that states if the foreign national is ever to receive public benefits from the U.S. government, the U.S. citizen will agree to reimburse the government for these benefits. The contract is binding for ten years, or until the foreign national becomes a U.S. citizen.

One advantage of this ‘one step’ filing is that the foreign national may also apply for an EAD (employment authorization document) on Form I-765. This will allow the foreign national to work, pending the adjudication of the I-485. Additionally, in some circumstances, the foreign national may also apply for an advance parole travel document on Form I-131. This will allow the foreign national to travel in and out of the country pending adjudication of their case. It must be noted that some foreign nationals who have overstayed their visa may not be eligible for advance parole, and if they leave the country, their application may be deemed abandoned, and they may be subject to the three or ten year bar.

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If your foreign national spouse is located outside the United States, there are several options to bring your spouse to the United States. Unfortunately, none of these procedures are quick, and you can anticipate at least a six month wait to be reunited with your spouse. This article will outline the procedures for a U.S. citizen to bring his or her spouse to the United States, and hopefully avoid any undue delay.

Bringing a foreign national spouse to the United States is a two step process. Step I is filed in the United States, and Step II will be filed in the U.S. Consul in the foreign national’s home country. In some cases, if the U.S. citizen is living (not visiting) abroad, Step I and II can be filed at the U.S. Consulate where he or she is living with his or her spouse. However, in most cases, Step I will be filed by the U.S. citizen at a Regional USCIS Service Center. If the U.S. citizen is living in Cincinnati, Ohio, the Nebraska Service Center has jurisdiction over the case. Check the USCIS web site if you have questions where to file your application.

The U.S. citizen must file USCIS Form I-130 along with the appropriate fee and accompanying documents including evidence that will show that the couple has a bona fide marriage. The United States Citizenship & Immigration Services (USCIS) prefers to see that the Petitioner and the Beneficiary (foreign national) show a co-mingling of assets, for example, a joint lease, mortgage, bank accounts, insurance policies, joint telephone or cable bills, etc. This evidence is not required, yet is highly preferred. If none of this evidence is attainable, the Petitioner can show photos of the couple together, as well as congratulation cards, affidavits from friends and family, and other secondary evidence. Since the foreign national is abroad, it is important to show that the U.S. citizen and his or her spouse are still in contact with one another. Therefore, any correspondence such as letters, emails, or telephone records should be submitted. Also, if the U.S. citizen has sent money via Western Union or another company, these receipts should be submitted as well. Last, if the U.S. citizen has taken a trip to visit his or her spouse, plane tickets, itineraries or receipts should be included in the application. The more information you can provide Immigration in the beginning of the process, the easier the process will be.

Once these documents are filed with Immigration, a receipt will be issued, and you will be able to check the case status on line. Unfortunately, the four Service Centers could take over a year to adjudicate the I-130 petition. To avoid any undue delays, it is important to submit a complete application to USCIS to avoid receiving a request for additional evidence.

When the I-130 is finally approved, the U.S. citizen must begin Step II. Step II involves ‘Consular processing’ and more forms will be filed with the U.S. Department of State’s National Visa Center located in New Hampshire. The National Visa Center will contact the U.S. citizen to continue processing of the case. Usually the National Visa Center will ask the U.S. citizen or national to complete Form DS-230 Part I and II.

An Affidavit of Support on Form I-864 must be submitted for Consular processing. The Affidavit of Support is used to show that the foreign national will not become a ‘public charge’. Therefore, the U.S. citizen must show that he or she can ‘financially support his or her spouse’. In order to show ‘financial stability’, the Petitioner must provide the National Visa Center with his or her tax records (IRS Form 1040) for the past three years, including IRS Forms W-2 for all three years, and a letter from his or her employer showing present employment. If the U.S. citizen Petitioner does not meet the financial standards set by the U.S. government, a ‘co-sponsor’ must be found to help alleviate the financial burden. The Affidavit of Support is a binding contract between the U.S. government and the U.S. citizen that states if the foreign national is ever to receive public benefits from the U.S. government, the U.S. citizen will agree to reimburse the government for these benefits. The contract is binding for ten years, or until the foreign national becomes a U.S. citizen.

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An immigrant visa is a visa that allows the alien to come to the United States with the intent of living in the United States permanently. A non-immigrant visa allows an alien to come to the United States for a “temporary” period of time.

To be a U.S. citizen marrying a citizen of another country (a foreign national) it can be a very exciting, yet complicated time when trying to bring that person to the United States. If the procedures are not followed correctly, you may be separated from your spouse for months, and possibly years. In general, it can take approximately six to twelve months for a foreign national to receive United States permanent residence (green card).

The United States Citizenship and Immigration Service (USCIS) has admitted to an enormous backlog of I-130 Petitions for Alien Relatives. Therefore, if a U.S. citizen filed a petition for his spouse who is living outside the United States, the couple and their family can be separated for almost two years while waiting for the I-130 to be adjudicated. Thus, the “LIFE Act” was passed by Congress and created a K-3 Visa for spouses of U.S. citizens who are waiting adjudication of an I-130. A K-3 Visa was designed to reunite families who have been separated because of the backlog of cases within the USCIS.

Bringing a foreign national spouse on a K-3 Visa to the United States is a three step process. Step I and II are filed in the United States, and Step III will be filed in the U.S. Consul in the foreign national’s home country. Step I will be filed by the U.S. citizen at a Regional USCIS Service Center. If the U.S. citizen is living in Cincinnati, Ohio, the Nebraska Service Center has jurisdiction over the case. Check the USCIS web site if you have questions where to file your application.

In Step I the U.S. citizen must file USCIS Form I-130 along with the appropriate fee and accompanying documents including evidence that will show that the couple has a bona fide marriage. The United States Citizenship & Immigration Services prefers to see that the Petitioner and the Beneficiary (foreign national) show a co-mingling of assets, for example, a joint lease, mortgage, bank accounts, insurance policies, joint telephone or cable bills, etc. This evidence is not required, yet is highly preferred. If none of this evidence is attainable, the Petitioner can show photos of the couple together, as well as congratulation cards, affidavits from friends and family, and other secondary evidence. Since the foreign national is abroad, it is important to show that the U.S. citizen and his or her spouse are still in contact with one another. Therefore, any correspondence such as letters, emails, or telephone records should be submitted. Also, if the U.S. citizen has sent money via Western Union or another company, these receipts should be submitted as well. Last, if the U.S. citizen has taken a trip to visit his or her spouse, plane tickets, itineraries or receipts should be included in the application. The more information you can provide Immigration in the beginning of the process, the easier the process will be.

After the I-130 petition is filed at the local Service Center, the USCIS will issue a receipt on Form I-797. Once the U.S. citizen receives this receipt from USCIS, he or she may then file Step II at the Missouri Service Center via the Chicago Lock Box. The petition for the K-3 visa is filed on Form I-129F. Please note, that the requirements of the International Marriage Broker Regulation Act must be followed when the I-129 is filed. CLick here for more information on the International Marriage Broker Regulation Act. This petition must be accompanied by proof that an I-130 has been received by the USCIS along with other documentation. The USCIS was supposed to adjudicate these petitions swiftly in order to realize the goal of reuniting families, however, it could take approximately six months for the I-129F petition to be approved.
When the I-129 if finally approved, the U.S. citizen must begin Step III. Step III involves ‘Consular processing’ and more forms will be filed with the U.S. Department of State’s National Visa Center located in New Hampshire. The National Visa Center will contact the U.S. citizen to continue processing of the case. Usually the National Visa Center will ask the U.S. citizen or national to complete Form DS-230 Part I and II.

Also, an Affidavit of Support on Form I-864 must be submitted for Consular processing. The Affidavit of Support is used to show that the foreign national will not become a ‘public charge’. Therefore, the U.S. citizen must show that he or she can ‘financially support his or her spouse’. In order to show ‘financial stability’, the Petitioner must provide USCIS with his or her tax records (IRS Form 1040) for the past three years, including IRS Forms W-2 for all three years, and a letter from his or her employer showing present employment. If the U.S. citizen Petitioner does not meet the financial standards set by the U.S. government, a ‘co-sponsor’ must be found to help alleviate the financial burden. The Affidavit of Support is a binding contract between the U.S. government and the U.S. citizen that states if the foreign national is ever to receive public benefits from the U.S. government, the U.S. citizen will agree to reimburse the government for these benefits. The contract is binding for ten years, or until the foreign national becomes a U.S. citizen.

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In order to bring your fiancé to the United States, you must follow strict U.S. Citizenship and Immigration Services (USCIS) guidelines. Only U.S. citizens can petition for their fiancé. In order to file a fiancé petition, you must prove that you have met your fiancé in person, or demonstrate a valid reason why you are unable to arrange a meeting. A valid reason usually involves a disability or religious or cultural custom, not financial reasons. Additionally, once the K-1 fiancé visa is issued and your fiancé is admitted to the United States, you MUST marry your fiancé within 90 days, or your fiancé will be required to leave the country and have no chance to adjust or change his or her status.

In order to bring your fiancé to the United States, it is a two step process. The first step is filing the I-129F petition at the Service Center which has jurisdiction over the petitioning U.S. citizen. For example if you are living in Cincinnati, Ohio, the Nebraska Service Center has jurisdiction. Check the USCIS web site if you have questions where to file your application. Step II will be filed in the U.S. Consul in the foreign national’s home country.

Step I is filed on Form I-129F and must include color photographs of both parties. The petition must be supported by proof that the parties:

  • have met in person within two years before filing such as plane tickets and passport stamps showing visits
  • intend to marry
  • are legally able to marry, including proof of the legal termination of any prior marriages of either
  • letters of parties with personal knowledge of the relationship
  • photographs showing the parties together
  • correspondence between the parties by letter or email
  • telephone bills
  • receipt for engagement ring
  • documentation of wedding plans

It is O.K. if the petitioner does not have all of these items. However, you must prove that you have personally met your fiancé and you are both legally able to marry. Once USCIS receives the I-129F petition and accompanying documentation, USCIS will issue a receipt on Form I-797, and the petitioner can use this receipt number to check the case status on line. If USCIS has no questions about the case, it will eventually approve the petition and send the petition to the appropriate Consul or post. This is the beginning of Step II.

Importantly, On January 5, 2006, President Bush signed International Marriage Broker Regulation Act” (IMBRA). The International Marriage Broker Regulation Act provides that a petitioner for a K nonimmigrant visa for an alien fiancé(e) (K-1) or alien spouse (K-3) must submit with his or her Form I-129F information on any criminal convictions of the petitioner for any of the following “specified crimes such as Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking, Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment OR Crimes relating to a controlled substance or alcohol where the petitioner has been convicted on at least three occasions and where such crimes did not arise from a single act. This can include Driving Under the Influence (DUI) and public intoxication.

Further, The International Marriage Broker Regulation Act imposes limitations on the number of petitions a petitioner for a K nonimmigrant visa for an alien fiancé (K-1) may file If the petitioner has filed two or more K-1 fiancé visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver. These limitations do not apply to petitioners for a K nonimmigrant visa for an alien spouse (K-3).

The International Marriage Broker Act can complicate the K-1 fiancé visa and K-3 visa petition process if you have been convicted of the listed crimes or have filed previous K-1 fiancé petitions in the past.

Step II involves ‘Consular processing’ when more forms will be filed with the U.S. Department of State’s National Visa Center located in New Hampshire. The National Visa Center will contact the U.S. citizen to continue processing of the case. Usually the National Visa Center will require the beneficiary to complete Form DS-156 and obtain the medical examination.

An Affidavit of Support on Form I-864, or I-134, must be submitted for Consular processing. The Affidavit of Support is used to show that the foreign national will not become a ‘public charge’. Therefore, the U.S. citizen must show that he or she can ‘financially support his or her fiancé’. In order to show ‘financial stability’, the Petitioner must provide USCIS with his or her tax records (IRS Form 1040) for the past three years, including IRS Forms W-2 for all three years, and a letter from his or her employer showing present employment. If the U.S. citizen Petitioner does not meet the financial standards set by the U.S. government, a ‘co-sponsor’ must be found to help alleviate the financial burden. The Affidavit of Support is a binding contract between the U.S. government and the U.S. citizen that states if the foreign national is ever to receive public benefits from the U.S. government, the U.S. citizen will agree to reimburse the government for these benefits. The contract is binding for ten years, or until the foreign national becomes a U.S. citizen.

The U.S. citizen will be responsible for submitting this documentation in the United States. In the meantime, the foreign national in his or her home country will be required to obtain a valid passport that is good for at least six months from his or her country. Additionally, he or she will be required to undergo a medical exam at a doctor designated by the U.S. Consul. Further, he or she will need to obtain a police certificate from the authorities in every country he or she has lived for one year or more since reaching 16 years of age.

Once these tasks are completed, the U.S. Consul will notify the foreign national to appear at the Consul for an ‘fiancé visa’ interview. The U.S. citizen fiancé does not need to attend this interview, but can if he or she wants. At the interview, the Consular Officer will closely scrutinize the visa application. The Immigration examiner tends to look for several things:

  • To confirm the information on the forms, or make changes, if necessary, for example, change of address or phone number
  • That the foreign national has violated U.S. Immigration laws
  • That the foreign national is not a criminal or terrorist
  • That there is a bona fide relationship
  • That the U.S. citizen Petitioner can ‘financially support’ the foreign national

The Consul is not looking for ‘golden answers’, he or she is looking for the truth and consistency. The Consul is just looking to see if there is a bona fide relationship and the couple intends to spend a life together. It is a crime to marry a foreign national in order to help him procure an Immigration benefit like a ‘green card’.

At the end of the interview, the Consular Officer will render a decision on the case. If approved, the foreign national will receive a visa in his or her passport. Sometimes it can take a few weeks to obtain the actual visa, therefore no travel arrangements should be made until the foreign national actually receives her passport and visa back from the U.S. Consul. Upon receiving the fiancé visa, the foreign national may travel to the United States, and upon landing on U.S. soil, he or she will be admitted to the United States as a fiancé on the K-1 Visa.

Once the alien fiancé is admitted to the United States, the U.S. citizen must marry his or her fiancé within 90 days or your fiancé will be required to leave the country and have no chance to adjust or change his or her status. Employment may be authorized during this period by filing an additional forms with USCIS.

If the U.S. citizen marries his or her fiancé within 90 days, the U.S. citizen spouse may now file for their adjustment of status (green card). He or she will apply for adjustment of status to legal permanent residence in the United States.

He or she must accompany this form with proof that he or she married the U.S. citizen fiancé within the required 90 days. It is advisable that the U.S. citizen and his new husband or wife show proof of a bona fide relationship such as a co-mingling of assets, or other evidence of a valid relationship.

An Affidavit of Support on Form I-864 must be included in the application for adjustment of status. The Affidavit of Support is used to show that the foreign national will not become a ‘public charge’. Therefore, the U.S. citizen must show that he or she can ‘financially support his or her spouse’. In order to show ‘financial stability’, the Petitioner must provide USCIS with his or her tax records (IRS Form 1040) for the past three years, along with IRS forms, W-2 for all three years, and a letter from his or her employer showing present employment. If the U.S. citizen Petitioner does not meet the financial standards set by the U.S. government, a ‘co-sponsor’ must be found. The Affidavit of Support is a binding contract between the U.S. government and the U.S. citizen that states if the foreign national is ever to receive public benefits from the U.S. government, the U.S. citizen will agree to reimburse the government for these benefits. The contract is binding for ten years, or until the foreign national becomes a U.S. citizen.

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