Note: Information concerning the new K (advance admission for the spouse and children of a U.S. citizen) and new V (advance admission for the spouse and the minor children of a lawful permanent resident) nonimmigrant visa categories will be coming soon to the web site of immigration.nu. Updates on the Legal Immigration Family Equity (LIFE) Act may be found here.
Definition of a Spouse
Before filing a spousal petition, it is helpful to understand that “spouse” means lawful husband or wife. In order to successfully petition for an immigrant visa for your spouse, your relationship with your spouse must be established and your spouse must be admissible to the United States under the immigration law.
Overview of Immigration Process
A legal immigrant (or “lawful permanent resident”) is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a three-step process for your spouse to become a legal immigrant:
The BCIS must approve an immigrant visa petition that you file for your spouse. The State Department visa bulletin must show that a spouse immigrant visa is available to your spouse, based on the date you filed the immigrant visa application.
If your spouse is outside the United States when your visa petition is approved and when an immigrant visa number (if required) becomes available, your spouse will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.
If your spouse is legally inside the U.S. when your visa petition is approved and when an immigrant visa number (if required) becomes available, he or she may apply to adjust his or her status to that of a lawful permanent resident.
What Does the Law Say?
The Immigration and Nationality Act is a law that governs the admission of all immigrants to the United States. For the part of the law concerning immigrant visas for spouses, please see INA ? 201, INA ? 203, and INA ? 204. The specific eligibility requirements and procedures for applying for immigrant visas and permanent residence are included in the Code of Federal Regulations [CFR] at 8 CFR ? 204.1, 8 CFR ? 204.2, and 8 CFR ? 245.
Information for Citizens
If you are a U.S. citizen, your spouse is considered an immediate relative and is immediately eligible for an immigrant visa if your petition is approved. Generally, if your spouse is in the U.S. (through a lawful admission or parole) at the time you file the Petition for Alien Relative, your spouse may file an Application to Register Permanent Residence or to Adjust Status at the same time. If your spouse is outside the U.S., your he or she will need to go to the nearest U.S. consulate to apply for an immigrant visa.
Information for Lawful Permanent Residents
If you are a lawful permanent resident and your petition for your spouse is approved, your spouse will be notified by the Department of State when a visa number becomes available. If your spouse is outside of the United States at the time of notification, he or she must then go to the local U.S. consulate to complete visa processing. If your spouse is inside the U.S. through a lawful admission or parole and is maintaining that status at the time of notification, he or she may file for a change of status when a visa number becomes available. If you do not have the visa number issued by the Department of State, you must wait for a number to become current. Your spouse may need to depart the United States to avoid accruing unlawful presence.
If you were married to your spouse before you became a permanent resident, your spouse may be eligible to receive following-to-join benefits. This means that you would not have to submit a separate Petition for Alien Relative, for your spouse, and your spouse would not have to wait any extra time for an immigrant visa to become available.
If you have been married less than two years when your spouse is granted lawful permanent resident status, your spouse will receive permanent resident status on a conditional basis. You and your spouse must apply together to remove the conditions on residence. Please note – you must apply to remove conditional status within 90 days before the 2-year anniversary of the award date of your spouse’s conditional legal permanent resident status. If you fail to file during this time, your spouse will be considered out of status as of the 2-year anniversary, and may be subject to removal from the U.S.
How Can I Check the Status of My Visa Petition?
To check the status of your visa petition, click on the “Check Case Status” button on the menu to the left and enter your filing number.
Can My Spouse Come to the U.S. to Live While the Visa Petition Is Pending?
If you are a U.S. Citizen, once you file a Petition for Alien Relative, your spouse is eligible to apply for a nonimmigrant K-3 Visa. This will entitle him or her to come to the U.S. to live and work while the visa petition is pending. It is not necessary for your spouse to obtain a K-3 visa in order to come to the U.S. to live and work. Your spouse may wait abroad for immigrant visa processing. However, seeking a K-3 visa can be a method for him or her to come the U.S. more quickly.
If you are a Legal Permanent Resident (LPR) and you have filed for a Petition for Alien Relative for your spouse and/or minor children prior to 12/22/00, your spouse and/or children may be eligible for the V visa classification if more than three years have passed since the Petition was filed. For more information about V visa eligibility, see the information concerning the BCIS’ Nonimmigrant Provision of the LIFE Act” available on this web site.