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Immigration Petitions for Your Spouse
Immigration can be very difficult for families. This is especially true when spouses are separated and face the challenges of the often lengthy immigration process. The idea behind spousal petitions is to solve this problem and allow families to reunite and live together in the U.S.
Application for a spousal petition requires the citizen or legal permanent resident spouse to complete and submit Form I-30 (also known as a Petition for Alien Relative) to the United States Citizenship and Immigration Services (USCIS) to bring a spouse to the U.S.A.
Form I-30 aims to establish a relationship between the US citizen or permanent resident and the alien spouse. If the spousal immigration visa is approved, the alien spouse may apply for a green card, which, if successful, allows the spouse to live and work in the U.S.
Eligibility for Spousal Petitions
General Eligibility Requirements
Form I-30 is structured to garner information from the applicant to establish whether there is a legitimate and bona fide relationship between the US citizen or legal permanent resident spouse and the alien spouse.
Petitioner Requirements
The petitioner filing Form I-30 must be a U.S. citizen or legal permanent resident.
Requirements for the Beneficiary
The foreign-born spouse (the beneficiary) must be legally married to the petitioner and should not have any criminal or immigration violations that will prevent them from being eligible to immigrate.
Proving the Relationship Between the Petitioner and Beneficiary
The petitioner must prove that the marriage is genuine and was not a sham aimed at evading immigration laws. Proof that can be submitted includes:
- Joint bank accounts,
- Leases or mortgages in both spouses’ names,
- Photographs of the couple together, and
- Affidavits from friends and family members.
Both spouses will undergo background checks to ensure they are not security risks.
Types of Spousal Petitions
There are different types of spousal petitions.
Marriage-Based Petitions
Marriage-based petitions are the most common and are filed by U.S. citizens or permanent resident spouses on behalf of their alien spouse beneficiary. Eligibility requires a genuine marriage and the ability to sponsor the spouse.
K-3 Visa Petitions
These visas are only available to U.S. citizens and not permanent residents. A K-3 visa petition allows the foreign-born spouse to enter the United States while their immigrant visa petition is pending.
Conditional Residence Petitions
A conditional resident permit is granted if the marriage between the U.S. citizen spouse or permanent resident spouse is less than two years old at the time of the application.
This requires an additional process at the end of two years. The married couple must fulfill specific requirements to remove the condition so that lawful permanent residence can be granted.
Widowed Spouse Petitions
Suppose an alien spouse was married to a U.S. citizen, and then subsequently, the citizen passed away. In that case, the widowed spouse could apply for residence in the U.S. via the widowed spouse petition, provided the petitioner establishes that they were married at the time of death. The surviving spouse should fulfill all other immigration law requirements.
Spousal Petition Process
Form I-130
Filing a spousal petition involves the completion of Form I-130 and compiling the necessary accompanying documents.
Filing Fee
Form I-130 and supporting documentation are submitted to USCIS, along with the filing fee of $535. The USCIS decides the outcome based on the application submitted.
If Form I-130 is approved, the foreign national spouse may be eligible to apply for an immigrant visa or green card, depending on their immigration status and the availability of visas.
If the foreign national spouse is already in the U.S. at the time of Form I-130 approval, they may be able to adjust their status to permanent resident status if they meet specific requirements.
Issues That Can Arise During the Process
Non-compliance with any of the eligibility requirements can result in the denial of the application. For example, petitioners need to prove that the marriage was bona fide and not a sham. Non-compliance will result in denial. Other potential issues could include the following:
- Financial resources required to prove the ability to support
- Criminal history or immigration violations
For any issues that may arise or if you are struggling to get convincing evidence to prove your compliance, we are here to help and can provide advice and a strategy to move forward with your petition.
Can a Spousal Petition be Denied?
Yes, a spousal petition can be denied. There are several common reasons for this. One of the most frequent is insufficient evidence of a bona fide marriage. The U.S. Citizenship and Immigration Services (USCIS) requires substantial proof that the marriage is genuine and not just for obtaining immigration benefits.
Another common reason is the inability of the U.S. citizen or permanent resident spouse to meet the income requirements needed to sponsor their foreign spouse. USCIS requires proof that the sponsoring spouse can financially support the immigrant spouse at 125% above the mandated poverty line.
Incomplete applications or incorrectly filled-out forms can also lead to denials. This includes missing supporting documents or fees.
Criminal history, prior immigration violations, or health-related issues of the foreign spouse could also result in a denial.
In case of denial, USCIS provides a denial notice explaining the reasons and possible options to appeal or reapply.
Strategies for Avoiding Delays or Denials
To avoid unnecessary delays or denials, pay attention to detail while completing your I-130. Provide full disclosure and make sure that you present clear and convincing evidence in your supporting documentation.
Most importantly, do not make fraudulent representations in your submission. Serious legal and immigration consequences can result from engaging in fraud or misrepresentation in connection with a spousal petition. Criminal prosecution may ensue with fines and even imprisonment in certain instances.
Additionally, you can seek the assistance of a skilled immigration lawyer to help you avoid these delays by ensuring that your application meets all the relevant requirements.
By working with a skilled attorney who has the knowledge about getting a green card for immediate relatives (as the spouses of lawful permanent residents are not in the category of immediate relatives), how to replace the permanent resident card, and how the process of immigration status works, you can minimize the chances of mistakes and delay in the process.
Alternatives to Spousal Petitions
There are alternatives to spousal petitions, such as fiancé(e) visas or family-based petitions. Let’s compare them and see what factors should be considered when opting for one.
Fiancé Visas
Fiancé visas can be quicker to obtain than spousal petitions, which is an advantage. However, the couples are required to get married within 90 days of entering the U.S., which may only suit some.
Family-Based Petitions
Applications for a more comprehensive set of people can be applied under the family-based petitions, but generally, they take longer to process.
Factors to Consider When Deciding Between Spousal Petitions and Alternative Options
Consider the following factors when comparing which petition is the right one for your circumstances:
- The length of the relationship.
- The immigration history of the intending immigrant.
- Their current location.
- Practical factors include considering each option’s processing time and the financial costs involved.
How Andrew T. Thomas, Attorneys at Law Can Assist
The spousal petition process can be complex. Still, with proper guidance and preparation, a U.S. citizen or lawful permanent resident can sponsor their spouse for immigration to the United States successfully.
It is essential to work with a knowledgeable immigration attorney to ensure the process goes smoothly and avoid any potential roadblocks or delays. Whether you are considering an application to register permanent residence, applying for an O-1 Visa, or need assistance with a VAWA petition, our experienced and sympathetic immigration attorneys are at your service. So please book a consultation today, and let us help you achieve your immigration dreams.
