U.S. Citizens and Lawful Permanent Residents (LPR) can petition for their spouse to obtain permanent residency, i.e. a green card. However, the process will take longer if the spouse petitioning is a LPR due to wait times on the visa availability (see “immigration through a relative”).
Three distinct processes can be used depending on the circumstances. The K-3 non immigrant visa is temporary and allows the foreign national to enter the U.S, to then subsequently allow him or her to apply for a green card once present in the United States. The IR-1/CR-1 Immigrant Visa is the equivalent of a green card and is given by the U.S. Consulate abroad to the foreign national. Finally, the foreign spouse can apply for the green card in the United States through adjustment of status.
1. Nonimmigrant K-3 visa
The K-3 visa process starts with the Immigration Services (United States Citizenship and Immigration Services) in the United States by filing the appropriate petitions. Once the I-129F petition is approved some months later, the file is transferred to the National Visa Center for processing and then to the U.S. Embassy of the country of the foreign spouse’s residence.
One must meet the following requirements to qualify for a K-3 visa:
- Existence of the marriage to the U.S Citizen or Lawful Permanent Resident
- Marriage in good faith and not for the purpose of obtaining a green card
- The foreign spouse resides abroad
- The foreign spouse has no prior criminal records (which would make him or her ineligible for an immigrant visa), or has no prior records of fraud, misrepresentation, and other bad acts. Note that in that instance, the person may require a waiver of grounds of inadmissibility before obtaining the immigrant visa.
When granted, the K-3 visa allows the spouse to enter the U.S and further apply for his/her green card while on American soil, that is to say file to adjust his/her status to become a Legal
Permanent Resident within a reasonable time after he/she enters the U.S. on a K-3 visa.
The child of a K-3 visa can be granted a K-4 visa if he/she is under 21 years of age (and under the age of 18 at the time of marriage for a future step-child petition), otherwise a separate petition will have to be filed for the child: see immigration through a relative.
Work authorizations can be issued to the K-3 and K-4 visa holders prior to the application for adjustment of status to permanent resident.
2. IR-1 or CR-1 Immigrant visa
With this process, the foreign spouse will have to apply for permanent residence from abroad, through the U.S. Embassy of his/her country of residence.
Unlike the adjustment of status, the immigrant visa process requires that the foreign national follows two distinct steps. The first step consists of filing a Petition for Alien Relative with United States Citizenship and Immigration Services (USCIS), which takes several months to get approved. Once approved, the file is transferred to the National Visa Center (NVC) for further processing. The second step consists of providing all necessary documentation and fees to the NVC which then forwards the file to the appropriate U.S. Consulate for an immigrant visa interview.
The spouse will obtain an Immigrant visa upon showing the following:
- The foreign spouse resides abroad
- Marriage in good faith and not for the purpose of obtaining a green card. For this you will need to show evidence of an ongoing relationship.
- The foreign spouse has no prior criminal records that would make him or her ineligible for an immigrant visa, or has no prior records of fraud, misrepresentation, and other bad acts. Note that in that instance, the person may require a waiver of grounds of inadmissibility before obtaining the immigrant visa.
When granted, the IR-1 and CR-1 Immigrant visas holder is admitted in the U.S. as a green card holder, or Legal Permanent Resident. When the spouses have been married for less than 2 years on the date of the foreign spouse’s admission into the United States, the green card will be issued on a conditional basis (CR-1 Visa). When the spouses have been married longer than 2 years on that date, the permanent residence is granted on a permanent basis (IR-1).
The U.S Citizen cannot include the spouse’s unmarried children under 21 years old in the same petition (and under the age of 18 at the time of marriage for a future step-child petition), a separate petition must be filed for this child: see immigration through a relative.
Such is different for a LPR who, to the contrary, can include the foreign spouse’s unmarried children under 21 years old (and under the age of 18 at the time of marriage for a future step-child petition).
3. Adjustment of Status
One can also apply for a green card through marriage to a United States citizen while present in the United States, whether in lawful status or not. While the Immigration Service will forgive the unlawful presence of the foreign spouse, they will not allow the adjustment of status of a foreign spouse who entered without inspection (EWI) to adjust his or her status. Several provisions have been put in place to allow the reunification of families who may be separated by the foreign spouse’s ineligibility to adjust status, through EWI for example. (See Provisional Waivers).
Unlike the Immigrant visa process, the adjustment of status consists of one step only, which is the filing of the petition for alien relative by the U.S. citizen spouse along with the adjustment of status. Once all documentations has been sent out, the couple will be scheduled for an interview at the closest immigration office from the petitioner’s residence.
When the spouses have been married for less than 2 years on the date of the grant of adjustment of status, the Green Card is conditional (CR-1 Visa). When the spouses have been married for more than 2 years on that date, the permanent residence is granted without condition (IR-1).
Similar rules apply for the sponsorship of the foreign spouse’s children as in the Immigrant Visa option.