Strategies for Applying for Marriage-Based Visa If Couple Lives Abroad

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, including:

• how the U.S. spouse can file the I-130 visa petition from another country, and
• proving the U.S. spouse's ability to support the immigrant while living in the United States.

Filing the I-130 Petition While Living Abroad

To begin, you will need to file a family petition on Form I-130, along with supporting documents. The normal and expected way to do that is to either file online after creating an account with U.S. Citizenship and Immigration Services (USCIS) or to send it by international mail to USCIS's Dallas Lockbox.

(A lockbox is a U.S.-based centralized processing unit that makes sure that forms are filed properly before forwarding them to a USCIS service center for a decision. Its address is indicated in the instructions to the I-130 and on the USCIS website).

There is also the possibility of filing directly with a U.S. consulate in the country where you're living (in which case, consular officers would decide your petition under the oversight of a USCIS office in the U.S.). However, unless the petitioner is a military service member stationed abroad, this opportunity is limited to cases presenting time-sensitive or exigent circumstances. Such circumstances would usually include (though not be limited to):

• local humanitarian emergencies, such as natural disasters
• medical emergencies requiring immediate travel, such as an at-risk pregnancy of the petitioner or beneficiary
• other personal emergencies, such as imminent danger to the safety of the petitioner or beneficiary
• procedural emergencies, such as the U.S. petitioner having received a job offer in or reassignment to the United States and the required start date is imminent, or a beneficiary "aging out" of eligibility for a visa category. (However, emergencies of the latter type are not directly relevant to marriage-based green card applications), or
• the U.S. citizen's receipt of a job offer in or reassignment to the United States with little advance notice of an upcoming start date.

This procedure is specifically not available to U.S. citizens who hope to do an end run around USCIS by traveling abroad and approaching a U.S. consulate for help. It's also not allowed if you've already filed an I-130 with USCIS.

If your request for an exception is denied, you will have no right to appeal or to request a reconsideration of the decision.

See Chapter 3 of the USCIS Policy Manual for details.

Supporting an Immigrant Visa Applicant While Living Abroad

If your I-130 petition is approved, the next step will be for your immigrating spouse to complete the immigrant visa process via the State Department (not USCIS) and to attend an interview at the local U.S. consulate or embassy (see articles on consular processing).

To assist your foreign-born spouse in completing this last step, you will probably need to indicated your financial sponsorship by submitting a Form I-864, Affidavit of Support. This form is a contract in which I-130 petitioners promise to provide monetary support for I-130 beneficiaries so that the latter never become dependent on U.S. government support (often called "welfare" or "food stamps"). However, only petitioners "domiciled" in the U.S. who have complied with U.S. federal tax filing requirements can be I-864 sponsors.

Immigrant petitioners must be domiciled in the U.S.

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 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:

• U.S. citizens who are employed abroad by the U.S. government, U.S research institutions, U.S. firms involved in foreign trade, U.S.-related international organizations, or U.S.-related religious organizations
• U.S. green card holders who are employed by the same entities above and who already have filed for and obtained approval for a Form N-470, Application to Preserve Residence for Naturalization Purposes, and
• I-130 petitioners (citizens or permanent residents) who can demonstrate an intention to establish a domicile in the U.S. either before or at the time of their immigrating beneficiary's arrival in the United States.

The third exception above requires showing (with a written explanation and supporting evidence attached to the I-864) that the petitioner has taken a combination of concrete steps towards leaving the foreign country to live in the U.S.—steps such as signing a lease or purchasing a home, 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, registering to vote and so on.

Even if you are using a joint sponsor (another person who agrees to support your spouse and filled out an I-864), you still need to meet the domicile requirement in order to serve as the immigrant's financial sponsor.

Petitioners must have complied with U.S. federal tax filing requirements

Certain petitioners of immigrants (especially U.S. citizens who have never lived in the U.S.) might have been unaware of their U.S. federal tax-filing obligations. This can 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. However, petitioners would be wise to seek out both tax and immigration counsel before taking any step in that direction.

Getting Legal Help

Given that your situation is unusual, you could make your life easier by hiring an experienced immigration attorney to handle your family visa case. The attorney can analyze the facts of your case and spot any potential problems, prepare the paperwork, and monitor the progress toward approval.