U.S. citizens and Green Card holders can petition their spouses for permanent residency in the United States. The process starts with a Form I-130 Petition for Alien Relative where the petitioner bears the burden of proving that the marriage is real and that the foreign national spouse qualifies for the classification sought. https://www.uscis.gov/i-130
The U.S. citizen or the Green Card holder is known as the petitioner. Their foreign-born spouse is known as the beneficiary of the petition. The petitioner and the beneficiary must qualify for the benefit sought at the time of filing.
Spouses of U.S. citizens are considered “Immediate Relatives.” This may prove very beneficial for many cases, especially when the beneficiary has worked in the U.S. without authorization or overstayed a non-immigrant visa.
Spouses of Green Card holders, on the other hand, fall under a preference category. They do not get all the same benefits as the spouses of U.S. citizens described above.
Family Based Immigration
The Green Card Process for the Beneficiary
In some cases, a beneficiary that is present in the United States may file for their green card (Form I-485) at the same time the petitioner files the Form I-130 Petition. This is known as “concurrent filing.” The process generally concludes with an interview at the local USCIS office. The petitioner and the beneficiary must appear for this interview with an Immigration Officer who will make the final decision on the case.
If the beneficiary is not in the United States, the beneficiary will go through “Consular Process” to obtain an immigrant visa at the U.S. Embassy/Consulate abroad. This process can only happen after the approval of the petition. In this scenario, the beneficiary will appear for an interview at the U.S. Embassy/Consulate. If all goes well, the beneficiary will receive an immigrant visa on his/her passport. He or she can then travel to the United States to live and work as a lawful permanent resident.
Affidavit of Support
In both scenarios, the petitioner must submit an Affidavit of Support (Form I-864). The Affidavit of Support ensures that the foreign national will not become a public charge. If the petitioner cannot meet the minimum income requirements, then the petitioner can add a Joint Sponsor to the case.
Immigration Red Flags
Immigration officers are trained to identify “red flags” that can complicate the case. Divorces, arrests, convictions, and immigration violations can complicate the case. It is important to speak to a licensed immigration attorney before filing any benefit request with USCIS. USCIS investigates all claims and can deny petitions if there are reasons for denial.
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