Written by: David A. Harston – Attorney licensed in Colorado
As the saying goes, “love knows no boundaries.” The law, however, is all about boundaries. Filing paperwork for your spouse to join you here in the United States can be a daunting task. Here is a step-by-step guide to follow if your spouse is already here in the U.S. and entered legally.
Get Married, If You Are Not Already
Until there is a “qualifying relationship”, you cannot file the appropriate residency paperwork for your spouse. Your marriage must be “bona fide” and not one simple to assist someone in becoming a resident of the United States. Marriage fraud is a federal crime and will result in significant jail time and penalities for BOTH parties.
Review and Confirm Eligibility
Before preparing and filing any paperwork with U.S. Immigration (U.S.Citizenship & Immigration Services), you must verify that you are eligible to file for your spouse and that your spouse is eligible for U.S. permanent residency. Determining eligibility and admissibility to the U.S. is critical PRIOR TO filing any paperwork with USCIS. Issues such as prior or current immigration violations, crimes, certain political activities, and health problems can affect eligibility and must be analyzed prior to filing. In addition, the U.S. citizen spouse must meet certain income requirements for sponsorship.
Gather the Required Paperwork
If eligibility is confirmed, gather the required paperwork and prepare copies for filing. USCIS will require proof of U.S. citizenship (U.S. passport; birth certificate; naturalization certificate), your spouse’s birth certificate, all immigration documents (including passports, visas, I-94 card and all other immigration documents), marriage certificate, documentation of all prior marriages (including divorce decrees and for women, prior marriage certificates), U.S. tax return for the most recent year, proof of employment for the U.S. citizen, medical examination, passport photographs of the U.S. citizen and spouse, proof of bona fide marriage to the extent available (birth certificates for children, joint accounts, joint lease/mortgage, joint insurance, photographs, affidavits, etc). See www.uscis.gov for current requirements.
Draft the Required Forms and Review Carefully for Accuracy
If your spouse is already here in the United States and entered legally, the forms include the I-130 Immigrant Petition, G-325 Biographic Data Forms, I-485 Application to Adjust Status, I-864 Affidavit of Support, I-765 Application for Work Authorization, and the I-131 Application for Advance Parole Travel Permission. If your spouse did not enter legally, is overseas or has other admissibility issues, this legal guide does not apply to your situation. Also note a designated civil surgeon will need to perform a medical exam for your foreign national spouse. See www.uscis.gov to download the forms. Review the forms several times for accuracy.
Sign Forms, Prepare Fees, Assemble Filing Package, Copy and File
Make sure all forms are signed in the appropriate places by the appropriate parties. Prepare the appropriate fees and payment for the filing at the correct USCIS office. Assemble the filing package, paying attention to the instructions on the USCIS website. Make a complete and legible copy of the filing package for your records. DO NOT send any original documents to USCIS. Confirm the fees and filing location using the USCIS website – note that filing locations and fees change frequently and the USICS website is not always kept up to date. At times, the USCIS website also contains contradicting or confusion information or instructions. If so, you should consult an experience immigration attorney to confirm procedures and requirements. File the package using a courier service such as FedEx or UPS or file using USPS Express Mail so you can track the package. Verify with the carrier that the package arrived.
Confirm Receipt and Complete Biometrics
USCIS will send receipt notices for the forms (I-130, I-485, I-765, and I-131) when the package arrives and the case is “feed-in.” Missing documentation, unsigned forms, improper fees, etc, will result in a rejection of the filing and the package will be returned to you. In some cases, USCIS will issue a Request for Initial Evidence or a Request for Evidence for missing information or documentation. Receipt notices from USCIS typically take anywhere from one to four weeks to arrive. In addition, USCIS will issue a biometric notice to complete the required fingerprints and to obtain a digital photograph. The biometics notice generally takes one to three months to arrive. Attend the biometics appointment.
Prepare for USCIS Interview and Attend Interview Together
While the paperwork is pending, continue to gather and copy evidence of your bona fide marriage (see Step 3). This paperwork will be critical at the interview. If you change your address while the paperwork is pending, you must notify USCIS within ten days of your move using form AR-11 and notifying USCIS with respect to each pending application (I-130, I-485, I-765, and I-131). When notified, attend USCIS interview together. Note that USCIS may separate you and your spouse at the interview.
If Approved, Confirm Receipt of Resident Card and Note Status
If the paperwork is in order and the USCIS officer finds there is a bona fide marriage and your foreign national spouse is eligible for U.S. permanent residency, the case may be approved at the interview. If not, the officer may issue a Request for Evidence or send the matter to Investigations for further review. If you have been married for less than two years at the time of the grant, your spouse will be issued “conditional” permanent resident status for a period of two years. You will be required to file additional paperwork prior to the expiration of the conditional residency to remove the conditions (note this process is NOT covered in this legal guide). When the card arrives, confirm all information is correct. If not, contact USCIS immediately to correct any errors. Note your foreign national spouse must carry the card at all times.
U.S. petitioners and their spouses should refer to the U.S. Citizenship & Immigration Services for further information. Also see the American Immigration Lawyers Association. See Web Links.