If you are a U.S. permanent resident (green card holder) married to a citizen of another country, and want to petition for your spouse to receive a U.S. green card, the first step in the application process will be for you to send a visa petition—Form I-130, Petition for Alien Relative and attached documents—to an office of U.S. Citizenship and Immigration Services (USCIS). This petition asks USCIS to acknowledge your marriage and allow the immigrant to go forward with green card processing.
Approval of the visa petition does not mean the immigrant is guaranteed approval of a green card, however. Like every immigrant, your spouse will eventually have to file his or her own, extensive portion of the immigrant visa and green card application. At that time, the immigration authorities will take a hard look at your spouse's health, background, financial situation and other factors that might disqualify him or her from entering the United States.
If you have a criminal record, see an attorney. Under the Adam Walsh Child Protection and Safety Act of 2006, U.S. citizens and lawful permanent residents who have been convicted of any “specified offense against a minor” are prohibited from filing a family-based immigrant petition on behalf of any beneficiary (whether a child or not). USCIS will run security checks on all petitions and may call you in for fingerprinting. If the petitioner has a conviction for one of the specified offenses against a minor, then the petition will not be approved unless USCIS determines that the U.S. petitioner poses no risk to the beneficiary.
Filling Out Form I-130
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—we are assuming that’s you. The right column, Part C, asks for information about your foreign-born spouse, referred to as the relative. Now for the questions.
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 apply for an adopted child. We’re assuming you can answer this question “No.”
Question 3: If you gained permanent residence through adoption, 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—something not covered in this book.
Question 1: You must enter your last name (surname) in capital letters, but the first and middle name in small letters. For example, Samuel Lawrence Renfrew would write RENFREW, Samuel Lawrence. Use your current married name if it was changed at the time of your marriage.
Questions 2-5: Self-explanatory.
Question 6: This refers only to your most recent marital status. Check “Married,” even if there was a previous divorce.
Question 7-9: Self-explanatory.
Question 10: Enter the eight- or nine-digit A-number found on your U.S. permanent resident green card.
Question 11: Self-explanatory.
Question 12: There’s a reason for this question: If your prior marriage(s) ended after your present marriage began, yours is not a lawful marriage. If you have 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. (If there was fraud involved in your hasty marriage, consult a lawyer.)
Question 13: Leave blank, since you are not yet a citizen.
Question 14a: The information requested here is usually on the back of the older-style green cards. The date of admission is on the front of the newer-style ones. (See the illustration below.) The date on the older cards usually starts with the year, so that Dec. 3, 1998 would be 981203. The city is in code on the old type of card: for example, SFR is San Francisco, BUF is Buffalo, and LIN is the Service Center in Lincoln, Nebraska. It's not shown on the new style card; simply state where you were approved for permanent residence. Class of Admission asks for the type of visa or remedy through which you got permanent residence, such as a Fourth Preference visa or political asylum.
Question 14b: If you yourself immigrated through marriage, you cannot petition for a new spouse for five years, unless the first spouse died or you 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, you should enclose documentary evidence showing that you and your former spouse shared a life, such as shared rent receipts, club memberships, children’s birth certificates, utility bills, and insurance agreements. Will USCIS find this evidence to be “clear and convincing”? Unfortunately, this legal standard is easy to state but hard to pin down or apply. The bottom line is that you have a lot of proving to do to persuade a suspicious government official that the previous marriage was bona fide.
Part C: (Now referring to the immigrant beneficiary)
Question 1: The immigrant's current name, with last name (surname) in capital letters.
Question 2-5: Self-explanatory.
Question 6: Current marital status only.
Question 7-8: Self-explanatory.
Question 9: If the immigrant doesn’t have a Social Security number, just write “None.” He or she probably wouldn’t have a Social Security number without having lived in the United States with either a work permit, a visa allowing work, or U.S. residence.
Question 10: The Alien Registration Number is an eight- or nine-digit number following a letter A that USCIS will assign to many types of immigrant applicants. Your spouse won’t have one yet unless he or she previously applied for permanent or, in some cases, temporary residence; or has been in deportation/removal proceedings. (Of course, if the previous application was denied because your spouse was inadmissible or lied on that application, call a lawyer before going any further.) If your spouse has never been assigned an A number, write “None.”
Questions 11 and 12: See advice to Questions 11 and 12 in Part B, above.
Question 13: Self-explanatory.
Question 14: Enter N/A here if the immigrant is living outside the United States. If the immigrant is living in the U.S., you will need to state what type of visa he or she entered on. Don't attempt to lie here if your spouse entered illegally -- he or she will ultimately need to prove legal entry, with a copy of the Form I-94 given at entry. Unfortunately, an unlawful entry to the U.S. will make it difficult if not impossible for him or her to obtain a green card. See an immigration lawyer for a full personal analysis.
Question 15: State your spouse's employer’s name and address, even if it is in the United States. (To date, the immigration authorities have not used this as a reason to go after the employer. But see a lawyer for a full analysis of the impact on your spouse's case.)
Question 16: If your spouse has ever 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 all his or her children, including any by previous relationships.
Question 18: Self-explanatory. Hopefully, the address will be the same as yours if the immigrant is in the United States, or USCIS may raise questions.
Question 19: Enter N/A if the immigrant is living in the United States. This is self-explanatory if the immigrant is living overseas.
Question 20: If your spouse's native language uses a non-Roman script (for example, Russian, Chinese, or Arabic), you’ll need to write the name and address in that script here (or find someone else to do it).
Question 21: Self-explanatory.
Question 22: You need not fill out Question 22 if your spouse is overseas. If already in the U.S., you will need to both name the closest USCIS field office (which information you can find on the USCIS website) and, as a backup in case your spouse is not allowed to use the U.S.-based "adjustment of status" procedure to obtain a green card, the name of the U.S. embassy or consulate providing immigrant visas in his or her home country.
Part D: Other Information.
Now we’re back to questions to be answered by you, 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. Enter the children’s names here.
Question 2: This refers to previously filed petitions -- which may include petitions for other spouses. As you might imagine, if you have a history of short marriages to people whom you helped get green cards, USCIS may initiate a marriage fraud investigation, and you should see a lawyer.
Signature Line: You, the petitioning spouse, sign here.
Signature of person preparing this form if other than above. If you are preparing your own application, you can leave this blank. A little typing assistance or advice from a friend does not count -- the only people who need to complete this line are lawyers or agencies that fill out these forms on other peoples’ behalf.Documents to Accompany Visa Petition
The I-130 visa petition asks you to submit supporting documents along with the form, including:
- Proof of your U.S. permanent resident status. To prove permanent residency, make a copy of your green card (front and back). If your green card hasn’t yet been issued, make a copy of the stamp placed in your passport indicating permanent residence.
- Form G-325A; one for each of you. The information you and your spouse supply on this form will allow the U.S. government to check your backgrounds. Most of the form is self-explanatory. If you really can’t remember or are unable to find out an exact date, enter whatever you can remember, such as the year. Alternately, you can simply say “unknown,” but if you overuse the “unknowns” USCIS may return your entire application for another try.
- Photos. You and your spouse must each submit a color passport-style photo, 2 × 2 inches in size, taken within the past six months, showing your current appearances. However, USCIS regulations permit your spouse to submit a photo that doesn’t completely follow the instructions if he or she lives in a country where such photographs are unavailable or are cost prohibitive.
- Fees. The fee for an I-130 visa petition as of early 2013 was $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.
After preparing and assembling all the forms and other items, you must send the packet to the USCIS “lockbox” office for the region where you live. The address can be found on the USCIS website. If you use the U.S. Postal Service, certified mail with a return receipt is the safest way to send your petition
If you live outside the United States or its territories, contact the nearest U.S. consulate about where to send the visa petition. (And be aware that making your home outside the U.S. can cause you to lose your U.S. permanent residency.)
What Happens After Sending in Form I-130 Visa Petition
A few weeks after you send in the visa petition, you should get a receipt notice from a USCIS Service Center (a different office from the lockbox you sent the I-130 to—the lockbox will have forwarded the file to a USCIS Service 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.
In a way, how long your I-130 petition spends in processing doesn’t matter. As soon as the petition is received by USCIS, you have established your spouse's place in line (known as his or her Priority Date).And no matter when the petition is approved, your spouse will have to wait an average of from three to five years from that Priority Date until a visa becomes available in the category of spouses of U.S. permanent residents (F2A). Only when that Priority Date is current can he or she take the next step in the process, and apply for a U.S. green card.
See below for a sample approval notice, showing the immigrant's Priority Date: