Immigrating to the United States through a Spousal Visa/Fiance' Visa

For alien citizens (which are classed as all non-US citizens and non green card holders) you must get a visa if you wish to live and work permanently in the US. One option to getting a green card and becoming a legal permanent resident (LPR) is through your spouse or fiancé(e) being a US citizen or LPR, via a spousal visa.

How do spousal visas work?

Depending on whether your spouse is a US citizen or a LPR, and whether they are your spouse or fiancé(e), different procedures need to be undertaken for each. However, for all, the form I-130 must be completed. This is the petition for alien relative form, and allows those on non-immigrant visas or people living outside of the US to get a green card as it establishes the familial relationship between the US citizen/LPR and the applicant.

If the petitioner is a US citizen- Green Card for Immediate Relatives of US Citizen

If the petitioner is a US citizen you may be eligible for a green card under the category of an ‘immediate relatives of US citizen’. If the applicant is already living in the US and a visa is available, after they must file form I-485- application to Register Permanent Residence or Adjust Status. This means you can apply for permanent resident status without having to return home for processing. This is known as adjustment of status.

However, if the applicant is currently living outside of the US, a process known as consular processing must be completed. This involves the applicant filing form I-130 and going to the US consular office in their country for an appointment with a consular officer, who will decide whether or not to grant an immigrant visa.

Immigrant visas for immediate relatives (of which a spouse classes as) of U.S. citizens are unlimited, so the visas are always available.

I

f the petitioner is a Lawful Permanent Resident (LPR)

If the petitioner is a LPR and not a US citizen, you may be eligible for a green card under the category ‘Family Preference Immigrants’. The process works the exact same as shown above (as if the petitioner was a US citizen) however there is one key difference: Immigrant visas for the family-sponsored immigrant preference category are numerically limited, so they are not always immediately available. In general, family-sponsored preference visas are limited to 226,000 visas per year.

If the petitioner is a fiancé(e):

US law allows the fiancé(e) of a US citizen to enter into the US, pending their marriage. LPR’s are not eligible to sponsor a fiancé. To do this, the petitioner must file a Petition for Alien Fiance'. Once this petition is approved, the applicant must apply for a K-1 nonimmigrant visa. The applicant then has to undergo consular processing at the US consulate where they live. Once the visa is granted by the consular officer, the applicant can enter the US. However, within 90 days after being admitted as a non-immigrant under this visa, the applicant must get married to the petitioner, who is the US citizen. After the marriage, the spouse must file additional petition which grants the applicant conditional permanent residence, and gives them a green card for two years.

Please note: If you have been married less than 2 years when your spouse is granted permanent resident status (even if you are already married before the applicant files any visa applications), your spouse will receive permanent resident status on a conditional basis. To remove the conditions on residence, you and your spouse must apply together. Please note that US immigration law changes from time to time. The information above is partial and provided for initial guidance only. It is highly recommended that you will retain legal counsel.

Amit Ben-Yehoshua is licensed to practice law in California and Israel and holds a Master of Law Degree in Chinese Law (Tsinghua University). For further consultation regarding immigration to the United States or international law, please feel free to contact attorney Amit Ben-Yehoshua at amit@amit-law.com or via one of the following numbers: Office: +972-3-9281267, Mobile:+ 972-054-632-9978, US Number: +1(818) 287-7939.

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