Family-Based Petition via Marriage

Route

Immigrant Visas

Description

A U.S. citizen or lawful permanent resident may be eligible to file a petition on behalf of a Migrant spouse residing in the United States or abroad. A family-based petition is composed of a multi-step process and immigration paths vary depending on important factors related to the Petitioner’s legal status as well as the Migrant spouse’s visa availability, current residence, method of entry into the United States, prior immigration and criminal history. Regardless of the immigration path that Petitioner and Migrant spouse may follow, the filing of an initial petition is a necessary step to initiate an immigration case with U.S. Citizenship and Immigration Services (USCIS).

In the situation where the Migrant spouse is married to a U.S. citizen and remained in the United States after the expiration of a nonimmigrant visa, the Migrant spouse may be eligible to file for adjustment of status in the United States. This process allows the simultaneous filing of a family-base petition and adjustment of status with USCIS. The process is generally less complex and facilitates the Migrant spouse’s ability to obtain a work authorization document (EAD) while the processing of a green card is pending. If the Petitioner only holds U.S. lawful permanent status, the petition is part of the initial filing. However, the Migrant spouse may be required to wait for a visa to become available prior to meeting eligibility for adjustment of status.

In the situation where the Migrant spouse resides abroad and a visa becomes available, post-petition approval, the case may continue processing at the Department of State National Visa Center (NVC). Additional forms and documentation filings may be required in order for an interview to be scheduled at a U.S. embassy or consular office abroad. A straightforward process can be anticipated if the Migrant spouse does not have any unfavorable factors that may potentially impact a petition approval. The Migrant spouse will be required to obtain a medical examination and attend a consular processing interview to finalize this multi-step process. Upon case approval and return of a sealed passport containing a valid visa, the Migrant spouse will be able to travel to the United States under an immigrant visa. An inspection by a U.S. Customs and Border Protection (CBP) officer at a port of entry will establish a legal entry and lawful permanent status in the United States.

In the situation where the Migrant spouse remained in the United States post entries without legal inspection, consular processing at a U.S. embassy or consular office abroad may be the most viable option. Certain factors that may intervene with a straightforward consular processing and that may require additional filings include the Migrant spouse’s criminal history and/or previous immigration history related to illegal entries into the United States. If certain factors are compromised and additional services are required that include the filing of a Waiver(s) and/or motion(s) with an immigration court, it is recommended that the Migrant spouse be guided and/or supported by a licensed attorney and/or an accredited legal representative. With legal representation, the Migrant spouse will be able to secure departure from the United States and be able to attend an interview abroad for further processing. Upon approval of an immigrant visa, the Migrant spouse will be able to re-enter the United States under lawful permanent residence and obtain a green card.

Benefits

The filing or the approval of the petition does not grant the Migrant spouse legal status or an immediate immigration benefit in the United States. However, once the Migrant spouse successfully navigates through the multi-step process and obtains approval of an immigrant visa at U.S. embassy or consular office abroad, the Migrant is able to obtain lawful permanent and/or conditional status. Conditional status is generally granted on a conditional basis and the Migrant spouse’s green card is only validated for a period of 2 years. An additional process is required to remove the conditions and obtain permanent resident status.

Green cards are produced upon inspection at a port of entry and legal entry to the United States. Green cards are mailed to the address of preference detailed on Form, DS-260, Immigrant Visa Electronic Application. In the past, a social security number was also generated and automatically mailed to the client. In most recent cases, the Migrant spouse may be required to request a social security independently at a local Social Security Office.

Derivative Dependents

A U.S. citizen may file a family-based petition on behalf of a Migrant spouse and marriage legality must comply with immigration laws. However, there is no derivative status for biological, step and/or adopted children. A U.S. citizen is required to file separate petitions for Migrant spouse and Migrant children. On the contrary, a U.S. lawful permanent resident may file a petition and include a Migrant spouse and Migrant children under the same petition.

Process Description

A family-based petition is a multi-step process that involves agencies like the United States Citizenship and Immigration Services (USCIS), Department of State National Visa Center (NVC), U.S. embassy or consular office abroad as well as U.S. Customs and Border Protection (CBP). The initial part of a family-based petition is to submit an application along all supporting documentation. Based on the petitioner’s legal status, either a U.S. citizen or lawful permanent resident, the processing times may vary significantly as detailed above.

A petition filed by a U.S. citizen on behalf of a Migrant spouse, immediate family member, holds priority preference. Indeed, immigrant visas for immediate relatives of U.S. citizens are unlimited and are often available for faster processing. Generally, a petition filed with USCIS may be processed and approved within 12 months. (Please note that at this time, times may vary significantly due to the ongoing pandemic impact). On the contrary, petitions filed by U.S. lawful permanent residents on behalf of a Migrant spouse endure a significant longer processing time. Visas are not immediately available as the petition holds second preference. Generally, a petition filed with USCIS may be processed and approved under 24 months. (Please note that at this time, times may vary significantly due to the ongoing pandemic impact).

Unfavorable Circumstances

For some individuals, immigration is a complex process to navigate through due to the strict requirements and interpretation of the law. A Migrant spouse’s criminal history and/or previous immigration history related to illegal entries, prior deportations, and/or previous immigration benefit denials, may negatively impact a petition. Although, some factors may not necessarily cause the denial of a petition, it is best to consult with a licensed attorney and/or an accredited legal representative to confirm eligibility and to establish best course of action. A legal attorney may be able to assess the Migrant spouse’s circumstances accordingly to the law, immigration bars, and restrictions.

Relevant Links List

Name Description Website
DoS Visa Bulletin Board This website contains details regarding the U.S. Department of State (DoS) visa availability based on relief categories. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
USCIS Processing Times Website contains details regarding immigration cases processing times. https://egov.uscis.gov/processing-times/

Citations

Family-based petitions on behalf of a Migrant spouse are processed and adjudicated under strict eligibility. Certain relevant laws and regulations are specified under the Immigration and Nationality Act (INA), Code of Federal Regulations (CFR) and/or U.S. Code. Some of the applicable law and regulations include:

Citations List

Citations Description Section Title
8 CFR § 245.1 Code of Federal Regulations (CFR) establishes regulations imposed by the Federal Government of the United States. Eligibility
8 CFR § 204.1 Code of Federal Regulations (CFR) establishes regulations imposed by the Federal Government of the United States. General Information About Immediate Relative and Family-Sponsored Petitions
8 CFR § 204.2 Code of Federal Regulations (CFR) establishes regulations imposed by the Federal Government of the United States. Petitions for Relatives, Widows and Widowers, and Abused Spouses and Children
INA § 212 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. General Classes of Aliens Ineligible to Receive Visas and Ineligible for Admission; Waivers of Inadmissibility
INA § 201 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. Worldwide Level of Immigration
INA § 203 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. Allocation of Immigrant Visas
8 U.S.C. § 1153 The U.S. Code (USC) contain general and permanent laws of the United States. Allocation of Immigrant Visas

Forms

Related Forms List

Name Description No. Fee
Affidavit of Support Under Section 213A of the INA On a case-by-case scenario, an Affidavit of Support Under Section 213A of the INA may be required for filing with U.S. Citizenship and Immigration Services (USCIS) and/or the Department of State National Visa Center (NVC). I-864 $0
Application for Employment Authorization An Application for Employment Authorization form should be filed with U.S. Citizenship and Immigration Services (USCIS) for the purpose of the Migrant Spouse to obtain an employment authorization document. The filing fee may be waived if it's an initial request under adjustment of status). I-765 $410
Application to Register Permanent Residence or Adjust Status An Application to Register Permanent Residence or Adjust Status form should be filed with U.S. Citizenship and Immigration Services (USCIS) for the purpose of the Migrant Spouse to obtain a green card. I-485 $750 - $1,225
Contract Between Sponsor and Household Member On a case-by-case scenario, a Contract Between Sponsor and Household Member may be required if Sponsor does not meet the financial requirements on his own. A household member's financials may be considered if residing at the same domicile of the Sponsor and holds legal status for employment. I-864A $0
Immigrant Visa Electronic Application An Immigrant Visa Electronic Application is required for online submission by the Department of State National Visa Center (NVC). The form DS-260 is only accessible via the Consular Electronic Center - Immigrant/Diversity Visa portal. DS-260 $0
Petition for Alien Relative A Petition for Alien Relative form should be filed with U.S. Citizenship and Immigration Services (USCIS) for the purpose of petitioning on behalf of a qualifying immediate family member. I-130 $535
Report of Medical Examination and Vaccination Record A medical examination form is to be completed by the Migrant Spouse and the authorized civil surgeon to establish admissibility under health grounds. I-693 $0
Supplemental Information for a Spouse Beneficiary A Supplemental Information for a Spouse Beneficiary form should be filed jointly with a Petition for Alien Relative when filing with U.S. Citizenship and Immigration Services (USCIS) for the purpose of petition for a Migrant Spouse. I-130A $0

Supporting Documents

For an initial filing of a family-based petition on behalf of a Migrant spouse, supporting documentation will be required to establish relationship and identity. Some of the supporting documentation may include:

Supporting Documents List

Name Description
Passport-Style Photographs Passport-styles photographs must comply with USCIS' requirements related to sizing, position, and color.
Personal Documentation Personal documentation must be submitted to verify the Sponsor's and Migrant's identity. Personal documentation includes birth certificates, passport biographical pages, identification IDs. All documentation must be in compliance with the U.S. Department of State - Bureau of Consular Affairs which requirements vary by country.
Proof of Bona Fide Relationship
Proof of Previous Marriage(s) Termination
U.S. Legal Status Verification Proof of legal status is required to ensure Sponsor's eligibility. Sponsor may provide a valid U.S. passport, U.S. birth certificate and/or a U.S. naturalization certificate.
Verification of Current Marriage