Applying for a green card through marriage via the Immigrant Visa process is an option that is available to foreign spouses who do not want to or are unable to apply for their green card inside the U.S. via the adjustment of status route. The Immigrant Visa process is sometimes referred to as the marriage visa, green card visa, or consular processing.
Unlike the adjustment of status green card route within the US, an individual electing to process their green card application via the immigrant visa route will attend an interview for an immigrant visa at a U.S. Embassy or Consulate in their home country. Upon approval, the foreign spouse will use the immigrant visa to request entry to the U.S. and after being processed by a Customs and Border Patrol agent they will be admitted into the U.S. as a lawful permanent resident (green card holder).
The immigrant visa route of applying for a green card through marriage is most often selected when the couple or the foreign spouse is residing outside of the U.S. and the foreign spouse is not able to enter the U.S. in a status that allows for immigrant intent.
Why would someone choose the immigrant visa green card process?
The immigrant visa route of applying for a green card through marriage is sometimes selected in the following types of situations:
- The couple is living abroad and they wish to return together to the U.S. in the near future.
- The U.S. citizen spouse is living in the U.S. and the foreign spouse is living abroad.
- The foreign spouse does not have any way of entering the U.S. in a status that allows for immigrant intent.
- The foreign spouse is currently in the U.S. in a non-immigrant status that does not allow for immigrant intent, such as the visitor status or TN status, and the individual needs to have the ability to travel outside of the U.S. on a regular basis while the application is pending.
- The foreign spouse entered the U.S. illegally and will have to submit a waiver application as part of the green card application.
There may be other scenarios that make it prudent to navigate the green card process through the immigrant visa route. Before embarking on the process, you should discuss the matter with an experienced immigration lawyer.
How does the process work?
Note: The process will be explained from the perspective of marriage to a U.S. citizen spouse. Although, please note that spouses of U.S. lawful permanent resident can also take advantage of this route.
The immigrant visa process can be summarized in 4 steps:
- Filing the Immigrant Petition.
The first step is the submission of an immigrant petition to USCIS by the U.S. citizen spouse on behalf of the foreign spouse. The purpose of the petition is for the U.S. citizen spouse to indicate their desire to sponsor their foreign spouse for permanent residency and to establish the bona-fide marital relationship.
- National Visa Center Processing.
After the immigrant petition is approved, the case is transferred to the National Visa Center (NVC). The NVC will create a case online through which it will request payment of relevant fees and documents from the U.S. spouse and foreign spouse. The documents required at this point include the following: Form DS-260, affidavit of support, birth certificates, police certificates, the couple’s marriage certificate, divorce records (if relevant), and possibly court and military records. The NVC will review and if all documents are accepted, the foreign spouse will be placed in line for an interview at the relevant U.S. Embassy/Consulate.
- S. Embassy/Consulate Interview.
The U.S. Embassy/Consulate contacts all parties when an interview has been scheduled. The foreign spouse will need to conduct a medical exam prior to the interview and collect various civil documents and affidavit of support documentation to present at the interview. The focus of the interview will be the couple’s relationship and whether the foreign spouse is “admissible”, which is their eligibility to become a lawful permanent resident. If approved, the foreign spouse will have an immigrant visa placed in their passport.
- Entry into the U.S. as a lawful permanent resident.
The immigrant visa is valid for 6 months for one entry to the U.S. When the foreign spouse is ready to enter the U.S., they will present the immigrant visa when going through customs and will be admitted to the U.S as a lawful permanent resident, aka green card holder!
For an even more detailed overview of the process, please see the following blog post: Immigrant Visa Timeline.
What if my spouse is a permanent resident, not a U.S. citizen?
If your spouse is a permanent resident of the U.S. and not a U.S. citizen, then you will be subject to a wait based on the filing of the immigrant petition. You can take the first step, which is filing the immigrant petition, but to move on to the NVC stage you will have to wait for your “priority date” to become current.
Does the immigrant visa process cure certain immigration violations in the same manner that the adjustment of status does?
NO!
If you have overstayed in the US, especially by 6 months or more, or if you have accrued unlawful presence in the U.S. or you have entered the U.S. without inspection (illegally) or you have potential fraud/misrepresentation issues on your immigration record, you may be ineligible for a green card via consular processing.
If you have certain immigration violations and are already in the U.S., it may not be the best option to finish the process via consular processing. If you are found to be ineligible for a green card, depending on your immigration violations, you may not be able to get back into the U.S. in another status.
Why shouldn’t I use this route?
As discussed above, individuals with certain issues, such as unlawful presence, overstays, entering without inspection, fraud/misrepresentation, and/or other immigration issues, should probably not use this route to apply for a green card if they are already in the U.S.
For some individuals, like those who entered without inspection, the immigrant visa route combined with a waiver may be their only option for applying for a green card. Please discuss your case with an experienced immigration lawyer before proceeding, as the negative consequences could include denial of your green card and a ban from the U.S. for anywhere from 3 years to a lifetime!
What organizations are involved?
The immigrant visa process involves several different organizations.
At the initial stage, U.S. Citizenship and Immigration Services (USCIS), which is overseen by the U.S. Department of Homeland Security, adjudicates the immigrant petition.
Once the immigrant petition is approved, the National Visa Center, overseen by the U.S. Department of State, takes on the responsibility of transferring the case to the U.S. Consulate abroad.
After approval by the U.S. Consulate abroad, the foreign national will then need to be admitted to the U.S. by U.S. Customs and Border Patrol, also overseen by the U.S. Department of Homeland Security.
Will my U.S. spouse have to submit an affidavit of support?
Yes. The affidavit of support is an essential aspect of the green card process even if it is carried out through the immigrant visa process. You will not be approved as lawful permanent resident without meeting the affidavit of support requirements.
Your U.S. citizen spouse must submit the affidavit of support on your behalf, and it will require that your U.S. spouse meet certain income requirements or use a combination of income and assets to meet requirements. For a comprehensive overview of the requirements and legal consequences of the affidavit of support, see: Green Card Affidavit of Support.
What is the medical exam?
A foreign spouse wishing to become a lawful permanent resident must undergo a medical examination as part of the green card process. For the immigrant visa process, there will usually only be 1-3 embassy-approved physicians per country that are able to conduct the medical examination. Generally, the examination will consist of a complete medical history, vaccination overview, blood tests, chest X-rays, and a syphilis and gonorrhea test.
The medical examination assesses whether the foreign spouse seeking a green card meets health and vaccination conditions imposed by the Immigration and Nationality Act (INA). Some of the INA health and vaccination conditions can be waived by the physician carrying out the exam or by submitting a waiver application to the U.S. Embassy/Consulate abroad.
What is immigrant intent and dual intent?
Every individual entering the U.S. is presumed to have immigrant intent. Immigrant intent means that you have the intent to remain in the U.S. permanently upon entry to the U.S. When entering the US, if you are not entering in a nonimmigrant status that allows for immigrant intent, then the burden is on you to rebut the presumption of immigrant intent when being evaluated by the Customs and Border Patrol (CBP) officer. Examples of nonimmigrant statuses that do not allow for dual intent are the TN, B-1/2, and the F-1.
The doctrine of dual intent applies to the H-1B and L-1 statuses. Dual intent means that an individual who is requesting entry to the U.S. in the H-1B or L-1 status may have an intention to immigrate at some time in the future.
Can I travel to the U.S. while my immigrant visa process is pending?
You may travel to the U.S., if you have some kind of U.S. visa that allows you to enter the U.S. The immigrant visa process itself does not give you any underlying benefit to travel or stay in the U.S. while the process is pending.
If you do have a valid visa, you may receive increased scrutiny when you try to enter the U.S. A U.S. Customs and Border Protection officer may be able to see that this process is pending while he or she processes you for entry and assume you have immigrant intent. While each situation is different and this situation should be discussed with your attorney, it is possible to clarify this situation by explaining that you are pursuing a green card via the immigrant visa process.
How long does it take?
It is very difficult to put an exact timeframe on the immigrant visa process since there are so many different agencies involved in navigating the process. Generally speaking, a fair timeframe is approximately 1.5 to 2 years from the filing of the immigrant petition to approval at the U.S. Consulate.
Timeframes can vary depending on backlogs of cases at both the USCIS and the U.S. Consulate abroad.
What are the fees?
The total filing fees for the green card application via the immigrant visa process are $1,340. This is comprised of $675 for the Immigrant Relative Petition, $325 for the Immigrant Visa Application Processing fees, $120 for the Affidavit of Support fee, and $220 for the Immigrant Fee (fee associated with the issuance of the physical green card). There may be other additional surcharges administered by the U.S. Consulate.
Contact an Immigrant Visa Process Lawyer
Contact Lightman Law Firm to schedule your initial consultation with our firm today. We are here to help you through each phase of the immigrant visa process going forward.
