U.S. citizens and lawful permanent residents may petition for permanent resident status, or green cards, for alien spouses. This type of visa application is initiated by filing a Form I-130 Petition for Alien Relative and providing necessary supporting documentation and evidence required by CIS (click here for official form and instructions).
While many spouse visa applications are filed without the assistance of an attorney, fully and properly completing the application, navigating the application process, properly responding to information requests, and overcoming evidentiary hurdles that can arise in certain cases can be complex and require specialized legal knowledge. Often, hiring qualified legal counsel can be the difference between the grant of a visa and a denial as mistakes made in the initial filing or when responding to subsequent requests for information by CIS can be difficult to overcome.
Who is eligible to sponsor their spouse?
A U.S. citizen or lawful permanent resident may apply to bring a husband or wife to live and work permanently in the United States. If you are a lawful permanent resident your spouse must have an immigrant visa number available to become a permanent resident. There is no wait time for a visa number for a spouse of a U.S. citizen.
If you were married to your spouse before you became a permanent resident, your spouse may be eligible to receive following-to-join benefits. This means that you would not have to submit a separate Form I-130 (Petition for Alien Relative) for your spouse, and your spouse would not have to wait any extra time for an immigrant visa number to become available.
How do I bring my spouse to live in the United States?
First, CIS must approve the Form I-130 you filed for your spouse. Next, depending if your spouse is subject to the visa numerical limit, the State Department must give your spouse an immigrant visa number even if they are already in the United States. If your spouse is already in the United States, your spouse may apply to adjust to permanent resident status. If your spouse is outside the United States, your spouse will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.
If you are a U.S. citizen, your spouse is considered an “immediate relative” and will need to apply for an immigrant visa. In order to receive an immigrant visa your relationship with your spouse must be established and your spouse must be admissible to the United States under the immigration law. You must file a Form I-130 (Petition for Alien Relative) on your spouse’s behalf, and your spouse may file a Form I-485 (Application to Register Permanent Residence or Adjust Status) at the same time (official form and instructions available here).
If you have been married less than two years when your spouse is approved for permanent residence, your spouse will receive conditional permanent resident status. You and your spouse must apply together to remove the conditions on residence 90 days before the conditional residence expires.
How do I remove the conditions on permanent residence based on marriage?
A lawful permanent resident is given the privilege of living and working in the United States permanently. Your permanent residence status will be conditional if it is based on a marriage that was less than two years old on the day you were given permanent residence. You are given conditional resident status on the day you are lawfully admitted to the United States on an immigrant visa or receive adjustment of status. Your permanent resident status is conditional, because you must prove that you did not get married to evade the immigration laws of the United States.
You may apply to remove your conditions on permanent residence if:
i. You are still married to the same U.S. citizen or lawful permanent resident after two years (your children may be included in your application if they got their conditional resident status at the same time that you did or within 90 days);
ii. You are a child and cannot be included in the application of your parents for a valid reason;
iii. You are a widow or widower of a marriage that was entered into in good faith;
iv. You entered into a marriage in good faith, but the marriage was ended through divorce or annulment;
v. You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S. citizen or lawful permanent resident spouse; or
vi. The termination of your conditional resident status would cause extreme hardship to you.
You and your spouse must apply together to remove the conditions on your residence by filing a Form I-751 (Petition to Remove the Conditions of Residence) (official form and instructions available here). You should apply during the 90 days before your second anniversary as a conditional resident. The expiration date on your alien registration card, or green card, is also the date of your second anniversary as a conditional resident. If you do not apply to remove the conditions in time, you could lose your conditional resident status and be removed from the country. If you are no longer married to your spouse, or if you have been battered or abused by your spouse, you can apply to waive the joint filing requirement.
In such cases, you may apply to remove the conditions on your permanent residence any time after you become a conditional resident, but before you are removed from the country. If your child received conditional resident status within 90 days of when you did, then your child may be included in your application to remove the conditions on permanent residence. Your child must file a separate application if your child received conditional resident status more than 90 days after you did.
How can I get a waiver of the requirement to file a joint petition?
If you are unable to apply with your spouse to remove the conditions on your residence, you may request a waiver of the joint filing requirement. You may request consideration of more than one waiver provision at a time.
What if I am late in applying to remove the conditions on residence?
If you fail to properly file the Form I-751 (Petition to Remove the Conditions of Residence) within the 90-day period before your second anniversary as a conditional resident, your conditional resident status will automatically be terminated and the Service will order removal proceedings against you. You will receive a notice from the Service telling you that you have failed to remove the conditions, and you will also receive a Notice to Appear at a hearing. At the hearing you may review and rebut the evidence against you. You are responsible for proving that you complied with the requirements (the Service is not responsible for proving that you did not comply with the requirements).
You may request a waiver of the joint petitioning requirements if:
- Your removal or deportation would result in extreme hardship.
- You entered into your marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and you were not at fault in failing to file a timely petition.
- You entered into your marriage in good faith, and not to evade immigration laws, but during the marriage you were battered by, or subjected to extreme cruelty committed by your U.S. citizen of legal permanent resident spouse, and you were not at fault in failing to file a joint petition.
Will my spouse be eligible for a work permit?
Your spouse does not need to apply for a work permit after admission as an “immigrant” with an immigrant visa or after adjustment to permanent resident status. As a lawful permanent resident, your spouse should receive an alien registration card that will prove that your spouse has a right to live and work in the United States permanently. If your spouse is now outside the United States, your spouse will receive a passport stamp upon arrival in the United States. This stamp will prove that your spouse is allowed to work until an alien registration card is created.
If you have questions about sponsoring a spouse, adjusting status after sponsorship, or need legal advice or help with a spousal visa petition, contact the Atlanta, Georgia immigration attorneys at Brownstein & Nguyen LLC today for a free consultation. We have over 20 years of experience successfully representing clients in all aspects of immigration law. Click here to see what our clients say about our experience and dedication in handling their legal matters.
