Individuals with a qualifying US citizen or Lawful Permanent Resident relative can apply to immigrate to the US through a US embassy or consulate abroad. The first step is for the US citizen spouse or relative to file Form I-130, Petition for Alien Relative with USCIS (in the United States). Once the relationship (familial or spousal) is confirmed, the petition will be approved and the case will be transferred to the State Department’s National Visa Center (NVC) for additional processing. Timing and availability of visas depends on the family relationship and visa preference category.
Once the NVC approves the case, the applicant will be scheduled for an interview at the US consulate or embassy in their country. During the interview, the consular officer will determine the applicant’s eligibility to receive immigrant benefits in the US. Once approved, the applicant will receive their passport containing the US visa within a few weeks. They will then be able to enter the US using the visa and immediately become a Lawful Permanent Resident of the US. The Permanent Resident Card (or “green card”) will then be issued automatically and sent to the applicant’s address in the US.
If you’re a United States citizen and you would like to bring your non-citizen partner to the United States from another country, marriage is ultimately going to have to be part of your plan. With the K-1 Visa process, you will be married after your partner enters the United States, whereas with the Spousal Visa process, you will already be married before you file anything. One of these processes is not objectively better than the other: it depends on the circumstances and preferences of you and your partner.
There are many considerations you should take into account when deciding what process is best for you. Below we outline some key factors to consider and overviews of both of the processes for you to review as a starting point in your decision process.
Key factors to consider when deciding between the two options:
Difference in government filing fees
The government filing and processing fees are different for each visa process and are paid at different times.
Currently, the fees for the K-1 process are $535 for Form I-129F (filed with USCIS), $265 to apply for the K-1 visa (generally paid to the U.S. consulate), and then once your partner is in the United States there is a fee $1,225 for Form I-485/adjustment of status packet filed with USCIS. The total government fees are therefore $2,025. (Note this does not include any derivative children).
For the spousal visa process, current filing fees are $535 to USCIS for Form I-130, $325 to the U.S. State Department to apply for the visa, and $120 to the State Department for affidavit of support processing. After everything is approved, there is an Immigrant Fee to USCIS of $220. The total government fees are $1,200. (Note this does not include any derivative children).
Ability to Work and Travel
With the K-1 visa, there will be a period of approximately 5-7 months from the time of filing the adjustment of status application in the United States until your partner receives the card that serves both his/her employment authorization and travel document. During this 5-7 month period, your partner cannot legally work or travel outside of the United States. You should not rely on expediting the processing of the work authorization/travel document applications because it is increasingly difficult to receive expedited processing with USCIS.
If your partner enters on a spousal visa, he/she would enter the United States with the ability to work and travel, because he/she would already hold legal permanent resident status.
Ability to enter the United States as soon as possible
Although the timing can vary greatly for both processes based on the exact circumstances of each case, generally the K-1 visa process allows your partner to enter the United States approximately 1-4 months earlier than through the spousal visa process. However, sometimes processing can be delayed at the US embassy or consulate, depending on how busy they are.
Difference in legal fees
The legal fees for obtaining the Legal Permanent Resident Card (“Green Card”) through the K-1 Visa process are usually higher than for obtaining legal permanent resident status through the Spousal Visa process. Because the K-1 visa involves consular processing before your partner enters the United States and a full adjustment of status application process after they enter the United States, the legal fees associated with the full K-1/adjustment of status processes are higher than with the Spousal Visa process.
The requirements can easily vary depending on every individual case, but some of the general requirements are:
- The petitioner must be a U.S. Citizen or legal permanent resident
- The petitioner must live in United States (though it is possible for a U.S. citizen who lives abroad to file a petition)
- U.S. Citizens can petition for the following relatives without immigration quotas:
- Unmarried children under 21 years of age
- Parents, if the U.S. citizen petitioner is at least 21 years old
- U.S. Citizens can petition for the following relatives but must wait for an available visa:
- Unmarried children over 21 years of age and their minor children
- Married children and their spouses and children
- Siblings, their spouses, and their minor child, if the U.S. citizen petitioner is at least 21 years old
- Legal permanent residents (green card holders) can petition for the following relatives but must wait for an available immigrant visa:
- Unmarried children under 21 years of age
- Unmarried children over 21 years of age
- Form I-130, Petition for Alien Relative
- Form I-130A, Supplemental Information for Spouse Beneficiary
- Form I-864, Affidavit of Support Under Section 213A of the INA
- Form DS-260, Immigrant Visa Electronic Application
- Submit your petition and evidence to USCIS
- Receive receipt notice from USCIS
- Receive I-130 approval notice from USCIS
- Receive notice that case has been transferred to the National Visa Center (NVC)
- Upload I-864 and supporting documents to the NVC and submit the online Form DS-260
- Receive interview notice from NVC
- Prepare for consular interview and complete medical examination
- Consular interview at the Embassy
- If visa is approved, you must travel to the United States before the immigrant visa in your passport expires, usually within 6 months
- Legal permanent resident card is mailed to your US residence
If you are a US citizen or legal permanent resident, you can submit petitions for your family members and loved ones to join you in the United States. One of the privileges of citizenship is the ability to petition for immediate relatives, like your spouse, unmarried children under 21 years of age, and parents without immigration quota limits. Legal permanent residents may also petition for their relatives, but they must wait for an immigrant visa to become available.
The Visa Bulletin is issued monthly by the Department of State and it provides information about the current wait times for various visa types. If you are the spouse, parent, or unmarried child under the age of 21, you do not need to worry about the visa bulletin. There will be a visa immediately available to you after your I-130 is approved and you have a successful interview.
For other family relationships, such as older or married children, adult siblings of US citizens, and spouses or family members of Lawful Permanent Residents, there is a wait to obtain a visa. The visa bulletin tracks this waiting time and indicates where an applicant is in line based on the date they filed their I-130 (their “Priority Date”). Your priority date can be found on the top of your I-130 Receipt Notice.
Family-based visa petitions are separated into five main categories -- F1, F2A, F2B, F3, and F4. Employment-based petitions have a separate set of categories and quotas for specific countries. The categories for family-based petitions are:
First: (F1) Unmarried Sons and Daughters of U.S. Citizens
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:
- (F2A) Spouses and Children of Permanent Residents
- (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents
Third: (F3) Married Sons and Daughters of U.S. Citizens
Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens
If your visa is subject to the wait times on the Visa Bulletin, It is always a good idea to file your I-130 petition as soon as you can in order to get in line and begin the clock on your case. For some countries and family relationships, it can take years, or even decades, for your Priority Date to become “current” on the Visa Bulletin.
One of the most exciting things about the immigration process is its ability to move people closer to the ones they love. Family-based immigration enables people all over the globe to come closer together and spend more of their lives in the same place.
If you’re applying to citizenship based on three years of marriage to a US citizen, part of the process will be proving to the government that your relationship is still genuine. This is usually not an issue for couples who have been together for several years and who live together. However, it can be a big project to collect documentation of your relationship over several years and to know what types of things that the government is looking for.
Sometimes relationship evidence can seem very personal, but you must be able to show the government that your marriage or engagement is legitimate. Click here for some helpful tips.
The U.S. Government has outlined certain offenses that can make a person inadmissible to the United States. This means that some people are unable to apply to immigrate due to prior criminal activity, communicable diseases, immigration fraud and misrepresentation, membership in totalitarian groups, unlawful presence in the United States, and many other reasons. USCIS can allow people who would normally be inadmissible to immigrate by granting an inadmissibility waiver. This is a common part of the process for many Immigrant Visa applications.
The main purpose of an inadmissibility waiver is to prove that extreme hardship will be caused by your removal from the US or your inability to immigrate to the US. Waivers are often granted when the intending immigrant is the primary caretaker for someone in the US, has young children, or has a medical condition which requires them to stay in the US to receive treatment or care. Filing a waiver requires the applicant to write a detailed statement about the circumstances surrounding their inadmissibility (such as why they were unlawfully present in the US or why the misrepresented themselves on a government form) and then provide a strong argument as to why they should be allowed to enter the US lawfully despite their previous actions.
- Fraud or misrepresentation in previous immigration applications;
- Unlawfully presence in the United States for more than 180 day during a single trip;
- Unlawfully presence in the United State for a total of 1 year from a single stay or over a series of stays;
- Unauthorized entry into the United States;
- Removal or deportation from the United States
Requirements to Apply
- Must have a qualifying U.S. citizen relative;
- Form I-601, Application for Waiver of Grounds of Inadmissibility
- Form I-601A, Application for Provisional Unlawful Presence Waiver
- Evidence of extreme hardship suffered by the U.S. citizen relative, including:
- Medical records, letters from medical professionals, medical bills, etc.;
- Psychological records;
- Letters of support from family and friends.