If you are marrying someone from India, and plan to sponsor your new husband or wife for a U.S. green card (lawful permanent residence), here is some important legal and practical information.
(Warning: This is a general overview of how the process works for most people. Your own situation may contain complicating factors or qualify for exceptions; see an attorney for a full analysis.)
Immigration Eligibility Based on Engagement or Marriage
First, a little background on U.S. immigration law. Marriage to a U.S. citizen or lawful permanent resident provides foreign-born persons a direct path to U.S. immigration. Contrary to popular rumor, however, they do not immediately or automatically receive green cards or U.S. citizenship.
If you are a U.S. citizen, your new spouse becomes your "immediate relative," and may receive a green card as soon as the two of you make it through the application process. This can take several months.
If you are not yet married and your fiancé is still in India, you can, if you are a U.S. citizen, petition for him or her to enter the U.S. as a fiancé in order to get married in the U.S. -- and then your new spouse can apply for a green card, if desired. You can also choose to get married first in India or another country, and then apply for an immigrant visa with which to enter the U.S.– the equivalent of a green card.
If you are a lawful permanent resident, your new spouse becomes a "preference relative," in category 2A, and can apply for a green card (and enter the U.S.) only after a visa number has become available. Annual limits on the number of visas given out in category 2A create years-long waits. The application process itself adds more months to the process. Permanent residents cannot petition for fiancés.
Overview of Obtaining a Green Card Based on Marriage
The application process for a green card based on marriage involves multiple steps, such as submitting forms and documents and attending an interview with U.S. immigration authorities. The purpose of all this is to prove:
- the status of the U.S. petitioner (as a citizen or permanent resident)
- that a valid marriage has occurred (or will occur, in the case of a fiancé visa)
- that the marriage is bona fide (not a sham to get a green card), and
- that the immigrant is not inadmissible to the U.S. for medical, criminal, financial, or other reasons. (See "Inadmissibility: When the U.S. Can Keep You Out" for details.)
Procedurally, you may have more than one option as to where and how you apply, as described below.
Procedures When Applying for a K-1 Fiancé Visa
If you and your intended (who lives outside the U.S.) have not yet married -- or have held an informal ceremony that does not count as an official marriage in the location where it was held -- you can apply for a temporary (90-day) visa with which your fiancé can enter the U.S. and hold the wedding.
The U.S. citizen starts this process by filing a visa petition on Form I-129F with U.S. Citizenship and Immigration Services (USCIS). After USCIS approves the I-129F, it will transfer the case to the U.S. consulate in either Mumbai or New Delhi, India, depending on where your fiance lives. Your fiancé will apply for a K-1 visa through the consulate. This involves submitting forms and documents and attending an interview with a consular official.
After your marriage in the U.S., your new spouse can apply to USCIS for a green card, through a process called adjustment of status. The two of you will attend a green card interview at a local USCIS office.
Procedures for Your Spouse to Come From India on an Immigrant Visa
If you and your husband or wife have already married, and your spouse is currently in India, you would start the green-card application process by filing Form I-130 with USCIS. After USCIS approves the I-130, spouses of U.S. citizens can continue on with visa processing. Spouses of permanent residents will hit a delay at this point, and have to wait approximately two years before a visa becomes available in their category.
Next, your spouse will go through consular processing for an immigrant visa. This means your spouse submits paperwork to, and attends an interview at, a U.S. consulate in either Mumbai or New Delhi, India, depending on where he or she lives. (The U.S. petitioner may attend, but is not required to.)
Upon approval, your spouse enters the U.S. on an immigrant visa, at which time he or she becomes a lawful permanent resident.
Procedures for Your Spouse to Come From India on a K-3 Visa
If you and your husband or wife (who lives outside the U.S.) have married, and you are a U.S. citizen, another option is to apply for a K-3 visa. This is sort of a hybrid of the fiancé visa and an immigrant visa, allowing the immigrant to enter the U.S. as a nonimmigrant (on a temporary visa) and then apply to adjust status within the United States.
After filing and getting a USCIS receipt notice for Form I-130, you would submit a separate fiancé visa petition to USCIS, on Form I-129F. Then your spouse will attend an interview at a U.S. consulate in either Mumbai or New Delhi, India, where the K-3 visa is granted.
After entering the U.S. on the K-3 visa, your spouse can apply to USCIS to adjust status. The two of you will attend a green card interview at a local USCIS office.
At Which U.S. Consulate in India the Interview Will Be Held
Although the U.S. has consulates in several cities in India, most of them do not process immigrant visas based on marriage. As of 2012, only the consulates in New Delhi and Mumbai were handling immigrant visas, which for this purpose includes fiancé visas. Specifically, the consulate in Mumbai was handling visa cases for applicants who lived in the states of Maharashtra, Gujarat, Goa, Daman and Diu (Union Territory), Madhya Pradesh, Arunachal Pradesh, Assam, Bihar, Dadra and Nagar Haveli (Union Territory), Manipur, Meghalaya, Mizoram (Union Territory), Nagaland, Orissa, Sikkim, Tripura, and West Bengal, Tamil Nadu, Karnataka, Kerala, and the Union Territories of Lakshadweep Islands and Pondicherry; while the consulate in New Delhi handled the rest.
You will be given instructions when you apply, or can check the websites of individual U.S. consulates by using the State Department’s page for “Websites of U.S. Embassies, Consulates, and Diplomatic Missions.”
If your spouse happens to be living in another country than India, the consulate there would likely be the one to handle the case.
Procedures If Your Spouse Is Already in the U.S.
If your spouse initially came to the U.S. as a nonimmigrant (such as on a fiancé or student visa or as a tourist), and either you are a U.S. citizen or your spouse is still in valid status, he or she can apply to adjust status in the United States. The main form for this is an I-485. The two of you will attend an interview at one of USCIS’s field offices.
Information about USCIS locations or service centers can be found at its website, www.uscis.gov. (Just make sure your spouse didn’t commit visa fraud by using the nonimmigrant visa specifically to enter the U.S. and apply for a green card – see “Risks of Entering the U.S. as a Tourist, Then Applying for Marriage- Based Green Card” for details.)
If, however, your spouse entered the U.S. without inspection or by using a fake visa, or you are a permanent resident rather than a citizen, your situation is more complicated than this article can address. You may have difficulty obtaining a green card for your spouse, though it is not impossible. See an immigration attorney for details or if you have any questions about whether you qualify to adjust status.
Entering Into a Legally Valid Marriage
No matter where you marry, you will need to obtain a certificate that convinces the U.S. immigration authorities that it was legally recognized in the state or country where it took place. Below are some tips on doing that.
Obtaining Documentation of a Valid Marriage in India
If you have married, or plan to get married in your fiancé or spouse’s home country, you will first need to look into India’s requirements for legal marriage.
According to information provided by the U.S. consulate, Indian marriages can take the form of either a religious or a civil ceremony. Some, but not all religious ceremonies will lead to a certificate that is considered sufficient for U.S. immigration and other legal purposes. You may be asked to provide a “no objection letter,” which is basically an affidavit in which you state that you are not currently married, and are eligible to marry. The U.S. consulate can help you prepare this letter.
If you and your intended spouse are of different religions, you may also be asked to register your marriage under a law called the Special Marriage Act. Plan ahead, because this involves a marriage officer publishing a newspaper ad allowing people to object to the marriage within 30 days from the date of your initial application.
After the marriage ceremony, you will need to obtain a certificate of that marriage for purposes of U.S. immigration. The U.S. government keeps track of what documents are considered legally valid from each country, India included, and will reject your marriage certificate if it doesn't come from the proper source. Check the State Department’s "Country Reciprocity Schedule" to get further details on what documents from India it considers valid. (Choose India from the menu, then scroll down the page to read about “Marriage Certificates.”)
Obtaining Documentation of a Valid Marriage in the United States
If you will hold your wedding in the U.S., you need to follow the laws of the state where you marry. For a summary, see Nolo's summary of “Marriage Laws in Your State.” You will need to obtain a marriage certificate from a local government office. A church certificate, for example, is not enough.