There are several routes for a US citizen to bring their foreign spouse to the United States. They are all expensive and time-consuming in comparison to the equivalent procedures in other countries, so it is important to understand the process and plan around it as early as possible.
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Basic Requirements
To sponsor a spouse for a green card, a U.S. citizen or green card holder must:
- Have a household income no less than 125% of the federal poverty line (100% if the sponsor is on active duty in the armed forces).
- Agree to support their alien spouse for a certain period of time after entering the United States. This is an important obligation to understand, as it may last for the immigrant’s entire life, even following a separation, divorce, or bankruptcy of the sponsor. Read more in this article.
- Have no history of specified offenses against minors (including kidnapping, possession of child pornography, and other sexual offenses), or obtain a waiver from DHS on the basis that they pose no risk to the beneficiary.
Fiancee (K-1) Visa
This is generally used when the couple is not yet married but intends to get married in the US. It requires a few months of waiting before the foreign fiancee can move to the US, followed by a few more months of waiting before the foreign fiancee can work or travel outside the US.
- File an I-129F fiancee petition. This takes 4 to 6 months to process (as of September 2019).
- File a DS-160 visa application with the embassy or consulate where the non-citizen spouse is located.
- The visa is issued shortly following the visa interview, and is valid for entry within 3 months.
- The couple must get married within 90 days of the non-citizen spouse’s entry.
- After marriage, file an I-485 application for Adjustment of Status (AOS). This can take one to two years to process (as of September 2019).
- Upon filing the I-485, file an I-765 Application for Employment Authorization Document (EAD) if the non-US spouse wishes to work or travel outside the US while waiting for their green card. This can be issued quickly but sometimes takes several months to process.
- A green card is issued upon completion of the AOS processing, which typically takes one to two years. The foreign spouse will have “conditional residency,” described further below.
Spouse (CR-1/IR-1) Visa
This is generally used when the couple is already married, or wishes to get married outside the US. This is the fastest way to bring a foreign spouse to the US if they are in a country that has a local USCIS office, or if they qualify for local processing in another country. Otherwise, it can require more than a year of waiting before the foreign spouse can move to the US. The good news is that they are immediately granted permanent resident status once they enter the US, which allows them to work.
If the Non-Citizen Spouse is in China, El Salvador, Guatemala, India, or Mexico
These countries are relatively quick because USCIS has offices in the local embassies/consulates that can process the documents.
- File an I-130 immigrant petition with the local embassy/consulate. This takes 1 to 3 months to process depending on the location (as of September 2019).
- Upon approval, file a visa application with the embassy/consulate.
- Upon approval, schedule an interview at the embassy/consulate.
- The visa is issued shortly following the interview, and is valid for entry within 3 months.
- The non-citizen spouse becomes a permanent resident upon entry with the visa. (Their endorsed visa serves as temporary proof of their status for up to one year, while a green card is mailed to their address on file weeks after entry.)
If the Non-Citizen Spouse is in Another Country
These countries usually take longer because most of the review is “outsourced” to relatively slow processing centers in the US.
- File an I-130 immigrant petition in the US. This can take up to 10.5 months to process (as of September 2019).
- Upon approval, the case will be referred to the National Visa Center, where the applicant will be asked to file a visa application.
- Following its review, the National Visa Center will forward the visa application to the embassy or consulate where the non-citizen spouse is located, where the non-citizen spouse will need to schedule an interview.
- The visa is issued shortly following the interview, and is valid for entry within 3 months.
- The non-citizen spouse becomes a permanent resident upon entry with the visa. (Their endorsed visa serves as temporary proof of their status for up to one year, while a green card is mailed to their address on file weeks after entry.)
It is sometimes possible to have the I-130 processed through the embassy or consulate where the non-citizen spouse is located, even though there is no USCIS office there. This can shave months off the processing schedule. This special treatment is available to spouses of active-duty military personnel at bases outside the US, and in certain “exceptional circumstances” such as short-notice job offers (see this USCIS memo for details).
US citizens living overseas with a foreign spouse can file an I-130 immigrant petition even if they have no current intention to move to the US. Once the I-130 is approved, it can be kept “on the shelf” so that if the couple later decides to move to the US, they can proceed directly to the visa application, which can save many months of waiting.
Adjustment of Status (AOS)
This is an option when the non-US spouse is already in the US on another type of visa. It involves the following steps:
- File an I-130 immigrant petition, I-485 application for Adjustment of Status (AOS), and I-765 Application for Employment Authorization Document (EAD), together with supporting documents.
- Around one month after filing, the spouse will be asked to make an appointment to take fingerprints and a photograph (biometrics) at a center designated by USCIS.
- As little as five months after filing, a marriage fraud interview will be scheduled. If the interview is successful, the green card will be issued shortly thereafter.
An EAD typically takes several months to issue, so if the AOS process is relatively quick, the EAD may not be issued until around the time the green card is issued. However, if the AOS process is significantly delayed, the EAD can allow the spouse to work and re-enter the US while the green card remains pending.
There are special concerns when adjusting status from a non-immigrant visa such as a B-1/B-2 visitor visa or F-1 student visa, or while in the US under the Visa Waiver Program with ESTA. If such a person marries a US citizen and takes up residence within 90 days of arrival, they are presumed to have willfully misrepresented their immigrant intent when they sought the visa and when they entered the US. There is, however, case law from the early 1980s stating that the intent is outweighed by the inequities of denying residency to the spouse of a citizen or permanent resident.
It is possible to resolve a current overstay by adjusting status based on marriage; this is discussed further in this article.
Conditional Residency
If a foreign spouse becomes a permanent resident within two years of their marriage (through AOS or entry to the US on a CR-1 visa), they will be granted “conditional residency” that is only valid for two years. Within 90 days before their conditional residency expires, the foreign spouse and US spouse must jointly file Form I-751 to “remove the conditions” and make the green card permanent. This is a measure to ensure that the marriage was legitimate. Failure to file Form I-751 may cause the removal of the foreign spouse from the US.
In cases of death, divorce, annulment, or domestic abuse, the foreign spouse can file on their own but may have a greater burden to prove the legitimacy of the marriage. For more on green cards and divorce, see this article.