If you are a U.S. citizen wishing to sponsor your foreign-born husband or wife for a U.S. green card (lawful permanent residence), you will need to start the application process by filing a visa petition on Form I-130 (Petition for Alien Relative). You will mail this form (with accompanying documents and fee) to U.S. Citizenship and Immigration Services (USCIS).
If your spouse is currently overseas, then only after the I-130 is approved will your spouse be able to move forward with the green card application, using a procedure called "consular processing".
If your foreign-born spouse is already in the U.S. after a legal entry, he or she is likely eligible to "adjust status" (apply for the green card) at a USCIS office, without leaving the U.S. -- in which case you do not need to submit the I-130 and wait for its approval before submitting the adjustment of status application (I-485 and accompanying forms and documents). The two can be submitted to USCIS all at once, or "concurrently." However, physical presence in the U.S. is not enough, by itself, to make an immigrant eligible to adjust status. If, for example, your spouse entered the U.S. illegally, it is likely that he or she is NOT eligible to adjust status, but can only use the consular processing procedure and may need a waiver of past unlawful presence as well -- see a lawyer for assistance in such a case.
We’ll go through the details of how to prepare and assemble the visa petition here.
Line-by-Line Instructions for Form I-130 Visa Petition
Form I-130 is one of the most important ones in an immigrating spouse's immigration process. It will be the first opportunity to explain who each of you are, where you live, and why the immigrant qualifies for a U.S. visa and residence.
The first thing to notice about Form I-130 is that it runs in two columns (except for the tiny Part A near the top). The left column, or Part B, asks for information about the petitioner -- that is, you, the U.S. citizen spouse. The right column asks for information about the immigrant, referred to as "your relative."
Question 1: Check the first box, Husband/Wife.
Question 2: This question, about whether you’re related by adoption, is meant for people who use this form to petition for an adopted child. We’re assuming you can answer this question “No.”
Question 3: If you, the petitioning spouse gained permanent residence through adoption (that is, immigrated to the United States before becoming a citizen), check Yes. But no matter which box you check, it won’t affect the application, since this question is mainly directed at people immigrating through parent/child relationships.
(Now we're looking at the left column.)
Question 1: The petitioning spouse must enter his/her last name (surname) in capital letters, but the first and middle name in small letters. For example, Samuel L. Barnes would write BARNES, Samuel L. The spouse should use his/her current married name if it was changed at the time of your marriage.
Questions 2-5: Self-explanatory.
Question 6: This refers only to the petitioning spouse’s most recent marital status, so check married even if there was a previous divorce.
Question 7: There's no need to mention personal nicknames, but do include any first or last names by which you have been commonly known, and which therefore might have made it onto paperwork that you will, now or later, be submitting to the immigration decision-makers.
Questions 8-9: Self explanatory.
Question 11: Add the names of any prior husbands and wives, for example where the relationship ended in annulment, divorce, or death.
Question 12: This question of when the U.S. spouse’s prior marriage ended is intended to make sure the current marriage is valid. If your prior marriage(s) ended after your present marriage began, yours is not a lawful marriage. If you've just discovered that the divorce wasn’t final when your marriage took place, it may not be necessary to run to a lawyer. Assuming that the divorce has since become final, you can simply correct the problem by remarrying.
Question 13: If the petitioning spouse is a naturalized U.S. citizen (meaning not born a U.S. citizen or granted the status via parents, but became one after an application and exam), this number can be found at the top right-hand side of the naturalization certificate. The date and place issued are also shown on the certificate.
Question 14a: U.S. citizens can write N/A here.
Question 14b: If you check “yes” here, indicating that you received U.S. permanent residence through marriage, calculate how long it has been since your approval for permanent residence. A petitioning spouse who immigrated through marriage cannot petition a new spouse for five years, unless the first spouse died or the petitioning spouse can prove by “clear and convincing evidence” that the previous marriage was bona fide (real). USCIS is concerned that the first marriage was just a sham, with the long-term goal of getting both of you into the United States by piggybacking on a sham marriage. To prove that the first marriage was bona fide, enclose documentary evidence showing that you and the former spouse shared a life, such as shared rent receipts or a mortgage, club memberships, children’s birth certificates, utility bills, and insurance agreements. As for what makes for “clear and convincing” evidence, this is one of those legal standards that is easy to state but hard to pin down. The bottom line is, a spouse in this situation may have a hard time persuading a suspicious government official that the previous marriage was bona fide.
Part C: (Now referring to the immigrant beneficiary)
Question 1: Current name, with last name (surname) in capital letters.
Questions 2-5: Self-explanatory.
Question 6: Current marital status only, that is, “married.”
Question 7-9: Self-explanatory.
Question 9: The immigrant won’t have a Social Security number until he or she has lived in the United States and had a work permit, a visa allowing work, or U.S. residence. If the immigrant doesn’t have a Social Security number, just write N/A.
Question 10: The Alien Registration Number is an eight- or nine-digit number following a letter A that USCIS (or the formerly named INS) would have assigned to the immigrant if he or she had previously applied for permanent (or, in some cases, temporary) residence or been in deportation/removal proceedings. Of course, if that previous application was denied because the immigrant was inadmissible or lied on that application, call a lawyer before going any further.
Question 11: Self-explanatory.
Question 12: See advice to Question 12 on Part B, above.
Question 13: It is important to state whether the intending immigrant has been in the U.S., because certain types of negative immigration history may affect eligibility for a green card (or indeed any type of admission to the U.S.).
Question 14: Enter N/A if the immigrant is living outside the United States. If living inside the U.S., state how the immigrant arrived, for example as a visitor, H-1B worker, or on the Visa Waiver Program (VWP). But if the arrival was "without inspection," consult an attorney immediately -- the immigrant's accrual of unlawful presence in the U.S. is likely to make him or her inadmissible (ineligible for a green card) unless the immigrant qualifies for a waiver.
Question 15: State the employer’s name and address.
Question 16: If the immigrant has been placed in Immigration Court proceedings, see a lawyer, particularly if the case was lost.
Question 17: This is the continuation of Part C, so all questions still refer to the immigrant beneficiary. List only the immigrant's children, if any. This means all children, including any by previous relationships.
Question 18: Self-explanatory. Hopefully, the immigrant intends to live at the U.S. spouse’s address, or USCIS will raise questions.
Question 19: If the immigrant is in the U.S. and no longer has an overseas address, write "N/A" here.
Question 20: If the immigrant's native language uses a non-Roman script (for example, Russian, Chinese, or Arabic), write the name and address in that script.
Question 21: If you have ever lived together, put the last address here. If not, write “N/A.”
Question 22: This question is only for immigrants who are already living in the U.S. and planning to apply for adjustment of status. See a lawyer if unsure whether the immigrant qualifies to use this application procedure. As a backup, you will also need to list the consulate in the immigrant's home country. USCIS will figure out which consulate your case will be sent to, based on where the immigrant lives and which of the State Department's consulates in that country actually handle immigrant visas. If the country listed doesn’t have diplomatic relations with the United States, USCIS will locate a consulate in a nearby country to handle the case. (Note: You’d handle this question differently if applying for a K-3 visa, instead; K-3 applicants need to apply through the consulate in the country where the wedding was held or, if it was held in the U.S., in the country of the immigrant's residence.)
Part D: Other Information
Now we’re back to questions to be answered by the petitioning spouse.
Question 1: This refers to other petitions being submitted simultaneously, (for example, for children from this or other marriages), so that USCIS can process the petitions together.
Question 2: This question is meant to uncover the U.S. spouse’s history (if any) of petitioning other immigrants to come to the United States. As you can probably imagine, a petitioning spouse who has a history of short marriages to people whom he or she then helped to obtain green cards can expect a major marriage fraud investigation. Consult a lawyer before proceeding.
Signature Line: The U.S. citizen, petitioning spouse signs here.
Signature of person preparing form if other than the petitioner. If the immigrant or spouse is filling this application unassisted, write N/A here. A little typing assistance or advice from a friend doesn’t count; the only people who need to complete this line are lawyers or agencies who fill out these forms on others’ behalf.
Documents to Prepare for Visa Petition
The I-130 visa petition requires the U.S. citizen petitioner to submit supporting documents and payment along with the form. You are not finished with the visa petition until you have gathered:
- Proof of U.S. citizen status of petitioning spouse. Depending on how the petitioning spouse became a citizen, make a copy of a birth certificate, passport, certificate of naturalization, or Form FS-20 (Report of Birth Abroad of a United States Citizen).
- Proof that you are legally married. This should include at a minimum a copy of your marriage certificate, most likely from a government source. In addition, if either you or your spouse have been previously married, you must include proof that these marriages were terminated, such as a copy of a death, divorce, or annulment certificate.
- Forms G-325A, Biographic Information. One needs to be filled out by the U.S. citizen petitioner, and one by the immigrant. See "Filling Out Form G-325A" for tips on this.
- Photos. Attach one passport-style photo of each of you to your respective Forms G-325A. The photos should be in color, 2 × 2 inches in size, taken within the past six months, showing your current appearance. “Passport style” means that the photo shows your full face from the front, with a plain white or off-white background; and your face must measure between one inch and 1 3/8 inches from the bottom of your chin to the top of your head. However, USCIS regulations permit you to submit a photo that doesn’t completely follow the instructions if you live in a country where such photographs are unavailable or are cost prohibitive.
- Fees. The fee for an I-130 visa petition is, as of early 2013, $420. However, these fees go up fairly regularly, so double-check this on the USCIS website at www.uscis.gov or by calling USCIS at 800-375-5283.
Where to Send Form I-130 Visa Petition
After the U.S. citizen spouse has prepared and assembled all the forms and other items listed above, make a photocopy for your personal records. Then send the whole visa petition to the USCIS “lockbox” indicated on the website instructions for Form I-130 -- or for Form I-485, if the immigrant is in the U.S. and eligible to adjust status. The lockbox will process the fee payment then forward the petition to a USCIS Service Center.
If mailing via the U.S. Postal Service, certified mail with a return receipt is the safest way to send it. The return receipt will prove that USCIS received the petition and help convince it to track the petition down if it’s misplaced. Courier service, such as UPS or FedEx, is another good way of sending these; just make sure to choose the USCIS address specially meant for courier services, since they cannot deliver to a P.O. Box.
What Happens After Sending in the Form I-130 Visa Petition
A few weeks after sending in the visa petition, the petitioner should get a receipt notice from a USCIS processing center. The receipt notice will tell you to check the USCIS website for information on how long the application is likely to remain in processing. Look for the receipt number in the upper left-hand corner, which you will need in order to check the status of the case online at www.uscis.gov. There, you can also sign up for automatic email updates about the case.
If USCIS needs additional documentation to complete the application, it will send the U.S. citizen spouse a letter asking for it. Eventually USCIS will send an approval or a denial of the visa petition.
If USCIS Denies the Visa Petition
If the visa petition is denied, USCIS will tell the petitioner the reason for the denial. The fastest thing to do is to fix the problem and try again. For example, if the denial came because the petitioning spouse did not appear to be actually divorced from a previous spouse, you would need to see a lawyer and obtain new and better documentation showing that there was a final divorce. Then file a new visa petition.
If USCIS Approves the Visa Petition
When the visa petition is approved, the petitioning spouse will receive a notice from the USCIS processing center. At the same time, it will forward the case to the National Visa Center (NVC) in New Hampshire. This office will take over and transfer the case to the appropriate U.S. consulate.
Or, if the I-130 was filed concurrently with an adjustment of status application, USCIS will schedule the immigrant for fingerprinting, and later for an interview at a local USCIS office.