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Historically, family reunification has been the easiest and fastest way of bringing your loved ones to the United States. If you are a United States citizen married to a foreign national, and you want to sponsor your spouse’s immigration, you are probably wondering what the best and fastest way to do it is. This is not an easy question. In some cases, the fastest way to bring your spouse to the United States may not be the best one, and a mistake can lead to disastrous consequences for your family. This section will help answer some of the basic questions you may have. However, you should be careful and talk to an experienced lawyer about your specific case in order to avoid any potential problems and complications.
Immigration for Spouse Who Is In the United States
If your foreign spouse is in the United States, he or she may file for adjustment of status (green-card) at the same time when you file your Form I-130, Petition for Alien Relative for him or her. Note that you can do that even if your spouse does not currently have a valid immigration status, as long as he or she entered the United States legally. Your spouse can also apply for employment authorization (work permit) and travel authorization (travel document) at the same time.
Provided that you file everything correctly and your case does not encounter serious problems, your spouse may receive his or her green-card as soon as in four (4) to six (6) months. If the process lasts longer, the foreign spouse may be able to work in the United States and travel outside the United States while his or her immigration process is pending. Currently, adjustment of status provides a faster immigration process compared to consular processing. In addition, adjustment of status applicant does not have to obtain police clearance records from abroad, as applicants for consular processing do. However, in order to be eligible for adjustment of status an applicant must be physically present in the United States, which could present a difficulty for some couples. For more information, please see our website and the sections below.
If your spouse leaves the United States BEFORE you file for his or her immigration, he or she will not be able to adjust his or her status to permanent resident at the same time when you file your I-130 petition. Instead, he or she will need to wait, while living abroad, until your petition is approved, and then undergo consular processing and receive an immigrant visa at the United States Embassy or Consulate in his or her country. Please see next section, Immigration for Spouse Who Is Abroad, for more information.
If your spouse leaves the United States while his or her adjustment of status is pending, without first securing advance parole travel permission, his or her adjustment application will be considered abandoned (unless he or she is an H or L visa holder and maintains H or L status). In addition, foreign spouse who leaves the United States while his or her adjustment of status application is pending, may trigger 3- or 10-year bar, which prohibits him or her from entering the United States for 3 to 10 years, if he or she had accrued more than 180 days (approximately 6 months) of unlawful presence in the United States. While advance parole also does not guarantee that such immigrants will be able to enter the United States after an absence, recent legal precedent has been in favor of advance parole holders with pending adjustment of status applications.
Immigration for Spouse Who Is Abroad
If your spouse lives abroad, or if he or she left the United States before you filed for his or her immigration, your foreign spouse will need to go through consular processing.
You, the U.S. Citizen, need to file form I-130, petition for alien relative, for your spouse. If you file correctly, and your case doesn’t encounter serious problems, the I-130 petition takes approximately six (6) months to be decided on. After your I-130 petition is approved, you and your spouse will need to submit additional documents, including affidavit of support for your spouse, police clearance(s) and medical examination of your spouse, etc. Eventually your spouse will be invited to the United States consulate in his or her country for an immigrant visa interview. If granted a visa, he or she will be admitted to the United States as permanent resident and receive green-card in the mail after arrival in the United States. For more information, please see the Department of State website: Immigrant Visa for a Spouse of a U.S. Citizen.
Understandably, many people want to be able to live with their spouse in the United States while their foreign spouse’s immigration petition is pending. For that purpose, the United States Citizenship and Immigration Services (USCIS) created the K-3 visa. K-3 is the visa for spouses of U.S. citizens; it allows the foreign spouse to come to the United States while the I-130, petition filed by the U.S. citizen, is pending. K-4 is the visa for minor children of spouses; it allows children to come to the United States with their parent who is married to a U.S. citizen. K-3 and K-4 are considered non-immigrant visas, but they allow their holders to adjust their status to permanent residents in the United States and receive green-cards.
K-3 / K-4 Visa Process
If you want to obtain a K-3 visa for your foreign spouse, you first need to file Form I-130, petition for alien relative, with USCIS. You will then receive Form I-797, Notice of Action, indicating that USCIS has received your Form I-130 filed on behalf of your foreign spouse. Then you need to file Form I-129F, Petition for Alien Fiancé (even though you are already married to your spouse), and include copies of your I-130 receipt and marriage certificate. There is no fee to file Form I-129F when filed after I-130 for a non-citizen spouse’s K-3 visa.
Minor children of foreign spouses should be listed on Form I-129F so that they would receive K-4 visas. Although separate Form I-130 is not required for a child, USCIS recommends filing one concurrently with the I-130 for spouse, because without an approved I-130 the child cannot immigrate if I-130 for spouse is approved before the I-129F for both.
If Form I-129F is approved, USCIS will forward it to the U.S. Department of State for consular processing. For more information, please see the Department of State website: Nonimmigrant Visa for a Spouse (K-3).
Benefits of K-3 / K-4 Visa
Once admitted to the United States, K-3 visa holders may apply to adjust status to a permanent resident with the USCIS at any time. Upon admission to the United States, K-4 visa holders may file an application for adjustment of status concurrently with or at any time after a Form I-130 has been filed on his or her behalf by the U.S. citizen petitioner. For more information, please see the USCIS website: K-3/K-4 Nonimmigrant Visas.
Upon admission, K-3 and K-4 nonimmigrant visa holders may obtain employment authorization. Upon filing an application for adjustment of status, K-3 and K-4 nonimmigrant visa holders may also apply for employment authorization based on that pending application even if the K-3 or K-4 nonimmigrant status expires.
Limitations of K-3 / K-4 Visa
When both petitions, I-130 and I-129F, have been approved by USCIS and sent to the National Visa Center (NVC), or when USCIS approves the I-130 before the I-129F, the availability of, as well as the need for, a nonimmigrant K-3 visa ends. If the NVC receives both an approved I-130 petition and an approved I-129F petition, the following occurs:
The nonimmigrant K-3 visa case will be administratively closed.
The K-3 non-immigrant visa application process will not be available to the foreign-citizen spouse and cannot be used.
The NVC will contact the U.S. citizen sponsor and foreign-citizen spouse with instructions for processing the immigrant visa.
In theory, K-3 visa provides the opportunity for U.S. citizens and their foreign spouses to live together in the United States while the foreign spouse’s immigration process is pending. However, in reality, the processing of I-129F petitions necessary for K-3 visas usually takes nearly as long as the processing of the I-130 petitions needed for immigration. Therefore, at present, it usually makes sense to file for K-3/K-4 visa only as insurance, in case the processing of I-130 petition gets extremely delayed. In normal circumstances, when the I-130 petition is approved within a reasonable timeframe, the foreign spouse can immediately undergo the consular processing and enter the United States as permanent resident, thus eliminating the need for K-3 visa as well as the need to go through adjustment of status process in the United States.
Avoiding Potential Problems
The immigration process for a foreign spouse living abroad may seem long and complicated, and people often wonder if there is a way around it. Sometimes, couples think that it would be easier and faster if the foreign citizen comes to the United States on a visitor’s or tourist visa, marries the U.S. citizen, and adjusts his or her status in the United States. For couples who are already married, there is a temptation for the foreign spouse to come to the United States as a visitor or tourist and adjust her status in the United States. However, doing so can be dangerous and have very serious consequences for the foreign spouse’s immigration.
One potential problem with foreign spouses trying to obtain non-immigrant visas and/or enter the United States using such non-immigrant visa or on Visa Waiver Program is the so-called “immigrant intent”. A person who applies for a non-immigrant visa must prove that he or she does not have “immigrant intent”, meaning that he or she does not plan to stay in the United States and live in the United States permanently.
For that reason, your foreign-citizen spouse may not be able to receive a non-immigrant visa to visit the United States while his or her immigrant petition is pending. The fact that the applicant for a tourist or visitor visa is married to a U.S. citizen, especially if he or she already has a pending immigrant petition, creates a presumption of “immigrant intent”, which makes the applicant ineligible for non-immigrant visa.
Similarly, U.S. Customs and Border Protection (CBP) inspectors may deny entry to the United States to a non-immigrant visa holder for the same reason – presumed immigrant intent resulting from marriage or even engagement with a U.S. citizen or green-card holder.
A foreign spouse trying to enter the United States on a valid non-immigrant visa issued prior to the marriage can be still be denied admission, if it surfaces that he or she is married to a U.S. citizen, thus creating a presumption of “immigrant intent”.
Foreign spouse of a U.S. citizen may be able to obtain a non-immigrant visa to visit the U.S., if he or she is able to show that he or she does not currently plan to immigrate to the U.S. For example, if both spouses live and work abroad and plan to return to their country of residence after a temporary visit to the United States, the foreign spouse may be able to obtain a visitor’s visa.
Visa Waiver Program
If your foreign spouse does not need a visa to enter the United States – for example, he or she is from a country participating in the Visa Waiver Program – it may seem that he or she can enter the United States and adjust status based on his or her marriage to the U.S. citizen. However, a Customs and Border Patrol officer inspecting the foreign spouse at U.S. border can deny him or her admission to the U.S. on Visa Waiver Program, if the officer determines that the foreign spouse has immigrant intent.
Generally, when a person enters the United States on Visa Waiver Program, he or she is expressing intent to leave within 90 days. For that reason, a Visa Waiver entrant would generally not be able to file for adjustment of status, even within the permitted 90 days of stay. However, there is an exception for filing as an immediate relative, such as spouse, of a U.S. citizen.
If your foreign spouse enters the United States as a non-immigrant, or through Visa Waiver Program, and then seeks to adjust status, he or she may encounter problems because of the so-called “preconceived intent”.
“Preconceived intent” means that the applicant intended to immigrate to the United States, and misrepresented his or her intent to immigration authorities in order to get a non-immigrant visa or enter the U.S. as Visa Waiver entrant.
Under the Foreign Affairs Manual (FAM), Department of State has a narrow framework for determining when there is immigrant versus nonimmigrant intent. Under these rules, for example, if a foreign national files for adjustment of status within 30 days of entry on a B-2 visa, there would be a presumption of preconceived intent. If between 30 and 60 days, the presumption would become rebuttable, meaning that it can be overcome by evidence to the contrary. If after 60 days, there would be no presumption of preconceived intent. The 30/60-day rule is a Department of State rule, and there is no specific USCIS rule that is similar; however, USCIS often relies on this general guideline in making its own determinations, as a matter of discretion, in adjustment application adjudications.
However, there is favorable court precedent stating that immediate relatives (such as spouses or parents) of U.S. citizens are exempt from the “preconceived intent” consideration. For example, in Matter of Cavazos (BIA 1980), the Board of Immigration Appeals (BIA) reversed an immigration judge who denied adjustment to the spouse of a US Citizen solely on the basis of preconceived immigrant intent. There, the BIA held that in the case of immediate relatives seeking a grant of adjustment of status, the regulations essentially negated “preconceived intent as an adverse factor in meritorious case.” In other words, if the only adverse factor is preconceived intent, immediate relative adjustment applications should be granted.
It is important to note that there are some issues relating to the decisions in Matter of Cavazos and the case following it, Matter of Ibrahim (BIA 1981). In Matter of Ibrahim, the BIA held that in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the US as a nonimmigrant with a preconceived intention to remain. However, the BIA also held that the benefits of Matter of Cavazos are limited to immediate relatives, and an application for adjustment of status by a preference immigrant who entered the US as a nonimmigrant with a preconceived intention to remain was properly denied in the exercise of discretion. Nowadays, relying on Matter of Cavazos and Matter of Ibrahim can be tricky, because:
1) these cases are quite old, and often USCIS examiners are not aware of their existence; and
2) there have been a number of recent cases—involving Visa Waiver entrants and other non-immigrants—in which preconceived intent was one of several factors considered in denying adjustment, and the consequences were quite severe.
Even though the preconceived intent rule generally does not apply to the US Citizens’ immediate relatives, there still can be repercussions for misrepresenting their intentions to officials or admitting at the interview that they had preconceived intent. As mentioned above, the consequences could be quite severe. For example, a visa waiver entrant whose adjustment is denied based on preconceived intent in conjunction with other factors is unable to appeal or challenge that denial as a result of entering under the Visa Waiver Program, and if that person is subject to the re-entry bars under INA §212(a)(9)(B) as a result of a visa overstay, the person would not be eligible to consular process without a waiver.
In regard to the denials, there have been no recent cases in which preconceived intent was the sole basis for the denial of the adjustment application—the denial always found other culpable conduct. In one case for example, the denial was based on a combination of preconceived intent and alien smuggling, and so the BIA’s departure from its usual policy and case law was justified (Mamoka v. INS, 1995; Matter of Patel, 1988, citing Matter of Lasike, 1980). In Matter of Patel, the deportation was upheld where alien refused to depart after denial of adjustment of status to special immigrant minister because none of his documentary evidence established that he had been carrying on vocation of minister of a religious denomination for two years prior to denial of application; discretionary denial of adjustment based on preconceived intent was also upheld where alien applied for “ministerial recognition” only 11 days after entry with tourist visa and five months later obtained “Christian Worker’s Certificate” entitling him to conduct religious services, letter of recommendation for ministry overseas predated his entry, and he started employment immediately upon entry but falsely stated in his request for extension of tourist visa that his intent was only to continue in his visitor status.
Therefore, most USCIS field offices do not raise the preconceived intent issue when it comes to immediate relatives of U.S. citizens, and most adjustment applications filed by spouses of U.S. citizens are granted, provided that if their only adverse factor is preconceived intent, and not a combination of preconceived intent and other culpable conduct.
It is important to get in touch with a good immigration lawyer in the United States as early as possible to avoid potential problems and to plan the best immigration strategy for your family. Attorneys at I.S. Law Firm have provided immigration help to many immigrants and their families. To learn more about our services and for consultation, please contact us at (703) 527-1779 or via e-mail: firstname.lastname@example.org.