Applying for a Marriage-Based Immigrant Visa: Overview

If you have determined that you are eligible for an immigrant visa and green card based on marriage to a U.S. citizen, and you will be applying for it from overseas, this article will orient you to the application procedures, including:

• the initial I-130 visa petition filed by the U.S. sponsor
• additional follow-up application materials filed by the immigrant
• the interview at an overseas U.S. consulate, and
• entry to the United States.

Again, this article focuses on cases where the U.S. sponsor is a citizen, not a lawful permanent resident (green card holder).

Which Foreign Spouses of U.S. Citizens Will NOT Be Helped by This Article

When we say this article describes how to get a "marriage-based immigrant visa" through a U.S. citizen, we mean a visa that allows the foreigner to come from another country to the United States and immediately become a permanent resident (green card holder). This article does NOT discuss the procedure used by many would-be immigrants already living in the U.S. legally or after a legal entry, which is called "adjustment of status" (though the end result is the same, namely to receive a green card).

The information in this article might, however, apply to you if despite currently living in the United States, you are not eligible to use the adjustment of status procedure and will need to return home for an interview at the U.S. consulate in your country. (Just be careful about going this procedural route if you've been living in the United States illegally, and have therefore become inadmissible, as described in Consequences of Unlawful Presence in the U.S.—Three– and Ten-Year Time Bars.)

We're also assuming that you're already married, and not already in removal (deportation) proceedings in the United States. If you are in removal proceedings, and therefore will need to present your case before an immigration court judge, the process will be quite different, and you should hire an attorney to help.

Main Steps in Getting Visa to Come to the U.S. as Immigrant Based on Marriage

The application process involves four major steps:

1. The U.S. citizen spouse submits a petition on Form I-130 to U.S. Citizenship and Immigration Services (USCIS) in the United States, together with proof that the two of you are married and proof of status as a citizen. (Learn more about preparing the I-130 petition.)
2. After USCIS approves the I-130 (which usually takes at least several months), you pay fees, gather documents, and fill out forms based on instructions sent to you by the National Visa Center (NVC); then return the forms, most likely to the NVC.
3. The NVC transfers the case to a U.S. consulate in the immigrant's home country. The immigrant has a medical exam done by a local approved physician and attends an interview at the U.S. consulate. There, the immigrant receives a sealed envelope containing a visa to the United States (at the actual interview or soon after).
4. The immigrant presents the visa at a U.S. border or port of entry (such as an airport, upon arrival), where it is examined by a U.S. Customs and Border Protection (CBP) officer. Assuming the officer approves entry, the passport will be stamped for U.S. residency (in other words, the immigrant gets green card status). The actual green card will arrive by mail some weeks later.
5. If the marriage was less than two years old at the time the immigrant enters the United States, you will notice that the green card, when it arrives, shows a two-year expiration date. That literally means that the immigrant's status might disappear in two years. It is "conditional" residence, meaning that 90 days before your expiration date, the couple needs to take steps to remove these conditions, by preparing and submitting an I-751 petition to USCIS.

In rare instances, USCIS will ask the U.S. spouse to attend a "fraud interview" if it or the consulate has doubts about your marriage being the real thing. This could happen as part of Step One or after Step Three.

This entire process usually takes 12 months or more. Although this is a frustratingly long time, there is almost nothing you can do to speed it up or create shortcuts, other than carefully following the U.S. government's instructions and double checking everything you submit, so as not to cause extra delays.

A Tourist Visa or VWP Entry Is Not a Viable Shortcut

Don't make the mistake that some couples do and use a tourist visa or a visa waiver (VWP) to enter the United States in order to apply for the green card. First off, you might be denied entry at the border or airport if it's discovered that you real intention in entering is not merely to be a tourist, but to apply for permanent residence. Second, even if you succeed in entering and submitting your "adjustment of status" application to USCIS, the agency might ask questions and decide that you committed visa fraud, thus disqualifying you for the green card.

Getting Legal Help

For personalized assistance with applying for lawful permanent residence based on marriage to a U.S. citizen or green card holder, consult an experienced attorney. The attorney can evaluate your personal circumstances, spot any trouble areas, strategize the fastest application procedure, prepare the paperwork and make sure you've gathered all the appropriate documents, write cover letters that explain what you're submitting and make any necessary legal arguments, and monitor your case to a successful conclusion.