Marriage Based Visa Petitions: An Overview

If you are an immigrant looking to apply for a U.S. marriage-based visa, or have a partner who wishes to become a green card holder, you may be wondering about the petition process. This type of petition is only available to couples who are already legally married. Living together does not qualify as a marriage in terms of immigration proceedings; however, common-law spouses may qualify as spouses for immigration purposes based on the laws of the country in which the marriage took place. In cases of polygamy, only the first spouse qualifies as a valid spouse for the purposes of a marriage-based visa.

In simple terms, a marriage-based visa is a type of visa that allows an immigrant to come to the U.S. from another country and immediately become a permanent U.S. resident, or green card holder. Before this can happen, an application and certain documentation must be submitted to the proper agencies. In addition, interviews and medical exams may have to be completed before a marriage-based visa can be approved. The exact process can differ slightly from case to case.

How Marriage Based Visa Petitions Work

If you are a U.S. citizen married to a foreig-born spouse, you are able to file a marriage-based visa petition on behalf of your spouse. In some cases, you will also be permitted to file a petition for your spouse’s children, but only if the children are under 21 years of age, unmarried, and were under age 18 at the time of your marriage to your spouse. If you are interested in filing a petition for your spouse’s children, you will need to file a separate Form I-130 for each child.

an attorney working with an immigrant to apply for a marriage visaIt is important to understand that the marriage-based visa petition process is not quick by any means. In fact, it can take anywhere from six to eleven months, possibly longer, to get approved for a marriage-based visa. If an immigrant resides overseas and the spouse is a lawful and permanent resident of the U.S., it can take up to 14 months for visa approval. As of late 2018, there is a two-year waiting list for visas, which means applicants may have to wait even longer to receive a marriage-based visa. Of course, certain circumstances can change this timeline, such as if a current visa or waiver has expired.

Applying for a Marriage Based Visa

The marriage-based visa petition process involves four major steps that must be completed properly before approval can be granted. The first step involves completing Form I-130, Petition for Alien Relative. This form must be submitted by the spouse who is a U.S. citizen and sent to U.S. Citizenship and Immigration Services (USCIS). You will also need to provide proof that you are indeed married, such as a marriage certificate, as well as proof of your status as a U.S. citizen, such as a birth certificate or passport.

Once Form I-130 has been approved by USCIS, which can take several months, you and your spouse will be responsible for paying certain fees. You will then need to fill out and submit forms based on a set of instructions sent to you by the National Visa Center (NVC). You may also need to submit certain documents to back up your claims. Once these documents have been received by the NVC, they will transfer your case to the U.S. consulate in the immigrant spouse’s home country. The spouse who is looking to get a green card will then need to undergo a medical exam by a locally-approved physician. In most cases, an interview at the U.S. consulate will need to be attended.

Following the interview, an immigrant visa will be issued. Once the spouse has reached the U.S. border, he or she can present the visa and gain access into the U.S. A few weeks later, you will receive the actual green card in the mail. If your marriage was less than two years old when you applied for a visa, the green card will have a two-year expiration date. This means that the visa is “conditional” and you will need to take the proper steps to remove these conditions at least 90 days before the expiration date by submitting Form I-751 to USCIS.

Learn More About Marriage Based Visas

an attorney using a pen to sign a marriage based visa petitionThere are certain mistakes spouses will want to avoid when completing marriage-based visa petitions. First, you want to make sure that you have a valid marriage, meaning you are not still married to someone else, have a marriage with certain blood relatives, or are married to an underage person. You also want to avoid attempting to adjust your status soon after using a visa waiver or tourist visa for U.S. entry. Of course, you also want to ensure that you complete the application properly and do not leave any questions unanswered.

For more information about marriage-based visas or for assistance with your case, contact the immigration attorneys at Johnson & Masumi.

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