Love American Style
US Immigration solutions for spouses and fiancé(e)s
So, you’ve met the man or woman of your dreams and you are ready to spend the rest of your lives together — in the USA. How do you do it?
First things first: are either of you US citizens? That makes it a whole lot easier. If you are married to a US citizen you are eligible for an Immediate Relative visa to enter the United States and become a Lawful Permanent Resident (Green Card holder). If you are not yet married, but your fiancé(e) is a US citizen, you may be eligible for a K visa, which would allow you to enter the United States to marry your US citizen partner, and then file to become a permanent resident.
What if my partner is not a US citizen, but has a Green Card? You can still benefit from an immediate relative petition; however, your visa category would be as a Family-based, Second Preference (2A), which means you will have to wait until your visa priority date becomes available (currently, there is about a three-year wait). And you have to be married—there are no fiancé(e) visas for would-be spouses of Lawful Permanent Residents.
What if my partner and I are the same gender? US immigration law DOES recognize same-sex unions for immigration purposes. Non-marital civil partnerships, however, are NOT recognized as a basis for a spouse-based visa (this includes UK civil partnerships). In England, same sex marriages have been legalized and are due to take effect by mid-2014. In the US, marriage laws vary state-to-state. To find a jurisdiction that permits same sex marriage, follow this link:
Neither of you have any connection to the United States? You will need to find another means of immigrating (employment visas and the Diversity Visa lottery, for those who qualify, come to mind as possible options).
Married 2 a US Citizen. Why 2? Two is the magic number for immigration based on marriage to a US citizen. If you have been married less than two years at the time you become a Lawful Permanent Resident, you may be eligible to become a Conditional Resident—conditioned on remaining married for another two years. If you have been married for two years at the time you become an LPR, it is issued without condition.
Filing the I-130 petition
Resident or Tourist
The American citizen spouse files the I-130 petition with the USCIS office having jurisdiction over his or her place of residence—either the California or Vermont Service Centers for US residents, or the USCIS office at the US Embassy in London for residents of the UK. Historically, the Embassy USCIS office has maintained a faster adjudication time over the US offices (1-3 months as opposed to 5 or more; although current US-based processing times are approaching 10 months); if eligible to do so, it makes sense to file here. USCIS recently revised its guidance on jurisdiction to require legal residence in the UK for the US spouse.
NOTE: With some exceptions, overseas I-130s are to be filed at a centralized lockbox location in the US. Residents in countries with a USCIS office (like the UK) may still file with their local USCIS office (USCIS has offices in the UK, Germany, Italy, and several other countries around the world--for a full list see the USCIS website: International Immigration Offices). For information about filing with USCIS in London, visit the USCIS-London website I-130 page. Residents in countries without a USCIS office may still be able to file with the consular section of their US embassy, if they can establish emergent circumstances. For additional information about the change in overseas filing in countries without a USCIS office, visit the USCIS website at USCIS Centralizes Filing of Form I-130. For guidance on establishing emergent circumstances, review the USCIS Guidance Memorandum
Once over the place-of-filing hurdle, the primary issue is whether the marriage is true—legally entered into, without any indicia of fraud (i.e. not a Green Card marriage). First-time marriages between individuals of similar demographic characteristics are less likely to be viewed with suspicion, as are long-term relationships and those that include children. Individuals with prior marriages must provide proof of termination of previous marriages (death certificate, divorce decree, or other official recognition of termination of marriage), and individuals from divergent demographic groups (e.g. a 60-year old and a 20-year old) are likely to be asked for additional evidence of the bona fides of their relationship (affidavits from witnesses, statements from the couple themselves, photos, joint financial documents such as tenancy agreements/mortgages, utilities, bank statements, etc.). If everything is in order, the petition is approved and sent on to the Immigrant Visa Unit in the Consular Section of the Embassy.
Required Documents for the I-130
- Proof of citizenship for the petitioner
- US passport
- Birth certificate
- Naturalization certificate
- Marriage certificate
- Proof of termination of any prior marriages
Generally, that's it; in some cases additional documentation may be required
Immigrant Visa Application
An approved I-130 only means that USCIS thinks you are really married; you still have to establish that the non-US Citizen is eligible for a visa. The Immigrant Visa Application stage in the process seeks to determine whether any would-be immigrants ought not be allowed to proceed to the US. Put another way, the USCIS petition stage is about the US Citizen anchor relative proving relationship, while the visa application stage is about the would-be immigrant proving admissibility.
Required Documents for the Immigrant Visa Application (for the immigrating spouse, unless otherwise noted). All civil documents must be the original or a certified copy
- Long form birth certificate (showing names of both parents)
- Police Certificate for each country in which you resided for 12 months or more since the age of 16
- Marriage certificate
- Proof of termination of any prior marriages (for both)
- Medical records, including vaccination history: the immigrant must submit to a full medical exam by an authorized physician (panel physician)
- Proof of financial support (in most cases)--See "Can You Afford This" below
- The US spouse must provide an Affidavit of Support, including information from the past 3 years of US tax returns and a complete copy of the most recent tax return (or an IRS tax transcript)
- If employed in the US, the US spouse must show proof of employment
- If relying on income of the the immigrating spouse, proof of his/her earnings
- If relying on assets, proof of assets
In some cases additional documentation may be required, such as military discharge
The US Immigration and Nationality Act enumerates several basis upon which a consular officer (or airport inspector) can deny and individual admission to the United States. These include: medical reasons (such as infection with a highly infectious disease or failure to be properly vaccinated for certain diseases); dangers to public safety; past criminal records; and past violations of US immigration laws. Additional information regarding inadmissibilities can be found in the Inadmissibility article in this website. To determine whether an applicant may be inadmissible, the visa application stage requires completion of Form DS-260; a medical examination, including proof of required vaccinations; and police clearances. The application process culminates with an in-person interview with a Consular Officer at the US Embassy.
Can you afford this?
Another fundamental part of the visa application stage is the review of your financial ability to start your life together in the US. A finding that one is likely to become a "public charge" (i.e. dependant upon government assistance) is also a ground of inadmissibility to the US. To prevent that, you need to submit an Affidavit of Support showing that your sponsor or you earn at least 125% of the Federal Poverty Guideline for a family of your size annually in the US or have assets in the US that are either 1. five times that figure-for non-spouse sponsors (if 125% for your family size is $20,300, your assets would have to equal $101,500); or 2. three times that figure for spouse sponsors ($20,300 would require $60,900 of assets). If you are not currently working in the US and/or you do not have sufficient assets, you can enlist a Joint Sponsor to vouch for you. The Joint Sponsor will also have to submit an Affidavit of Support showing that their income or assets satisfies the 125% level for their family size, including you (100% for military families). To find the 125% (or 100%) figure for your family size check out https://aspe.hhs.gov/poverty-guidelines.
Need further assistance?
If you require assistance at any stage of the petitioning or visa application process--or would like to discuss options before you start, please contact us to set up a consultation.
Steven D. Heller
US Immigration Lawyer in the UK
Heller Immigration Law, Ltd.
Lewes, East Sussex
+44 (0)1273 434609