If you are a U.S. citizen living abroad (or you are a U.S. green card holder traveling abroad for an extended period of time), and you are married to a foreign citizen who wishes to receive a U.S. green card based on your marriage, you and your spouse should be able to initiate the green card application process from outside the United States. This article describes the steps you will need to take and some of the considerations you will need to make in that process.
To begin, you will need to file a family visa petition on Form I-130.
If you live in a country where U.S. Citizenship and Immigration Services (USCIS) has established an office (see the list of international immigration offices on the agency’s website), then you have the choice of filing your petition directly with that office or sending it by international mail to USCIS’ Chicago Lockbox. (The Lockbox is a U.S.-based centralized processing unit that makes sure that I-130 forms are filed properly before forwarding them to a service center for a decision. Its address is indicated in the instructions to the I-130 form or on USCIS’ website).
Unsurprisingly, I-130 petitions filed directly with local USCIS offices are likely to be processed more quickly. However, this is not always the case. Therefore, before choosing your filing route, you should try sending an inquiry about I-130 processing times to your local USCIS office, and compare it with processing times at USCIS service centers in the U.S. (as indicated on USCIS’s website).
If you live in a country where USCIS does not have a presence, you have no choice but to file the I-130 with the Chicago Lockbox, unless your case presents an exception that would allow you to file directly with your local U.S. embassy or consulate (in which case, consular officers would decide your petition under the oversight of a USCIS office in the U.S.). USCIS has a lot of freedom (“discretion”) to decide what should count as an acceptable exception, but such circumstances would usually include (though they would not be limited to):
(Exceptional circumstances may also include certain procedural emergencies, such as a beneficiary “aging out” of eligibility for a visa category. However, emergencies of this type are not directly relevant to marriage-based green card applications.)
Note that if your request for an exception is denied, you will have no right to appeal or to request a reconsideration of the decision.
If your I-130 petition is approved, the next step will be for your spouse to apply for an immigrant visa via the State Department (not USCIS) and to attend an interview at his or her local U.S. consulate or embassy (see Nolo’s Web pages on consular processing for more information).
To assist your spouse in completing this last step, you will probably need to sponsor him or her by submitting aForm I-864, Affidavit of Support. (This form is a contract in which I-130 petitioners promise to take financial responsibility for I-130 beneficiaries so that the latter never become dependent on U.S. government support.) However, only petitioners “domiciled” in the U.S. who have complied with U.S. federal tax filing requirements can be I-864 sponsors.
If you live mainly outside the U.S. (as opposed to having left the U.S. only temporarily – for a definite period of time, with the intent to return, and while maintaining ties to the country) then, as a general rule, you cannot file an I-864 and your spouse’s immigrant visa application cannot be approved.
There are three exceptions to this general domicile rule, for:
The third exception above requires showing (with a written explanation and supporting evidence attached to the I-864) that the petitioner has taken concrete steps towards leaving the foreign country to live in the U.S. – steps such as changing his or her foreign address to establish a physical mailing address in the U.S. (by signing a lease, purchasing a home, or even making arrangements for housing accommodations with a friend or relative), leaving his or her foreign job and applying for jobs in the U.S., registering children at U.S. schools, opening U.S. bank or investment accounts, applying for a U.S. Social Security number, and so on.
Certain petitioners (especially U.S. citizens who have never lived in the U.S.) may have been unaware of their U.S. federal tax-filing obligations. This could be a problem, especially since I-864 sponsors are required to submit a copy or transcript of their most recent U.S. federal income tax return (unless they can prove that they were not required to file such a return). One solution might be to file a late return and pay back taxes. However, petitioners would be wise to seek out both tax and immigration counsel before taking any step in that direction.