A Guide to US Spousal Visa To The US
Spousal Visa (Forms I-130)
1. Who is eligible to apply for a spousal visa or a I-130 Petition?
A US Citizen is eligible to petition for his/her non-US Citizen Spouse under a spousal visa to the US or an I-130 Petition if the marriage is a bona fide marriage.
2. What is a bona fide marriage?
A bona fide marriage is a marriage that occurred not for immigration purposes but because the husband and wife are committed to each other and would like to spend the rest of their lives with each other.
Although there are no specific ways stated in the law to prove that a marriage is a bona fide marriage, the best are by commingling monies together (e.g. joint bank account) or having a child together.
3. What is the process?
The US Citizen Spouse files forms I-130 and G-325A, along with necessary supporting evidence with the USCIS. Evidence of the bona fide marriage must be shown. Once the application is approved, it will be transferred to the Embassy, which will issue the spousal visa based on the I-130 petition.
The US Citizen Spouse must demonstrate that he or she can support the spouse and any other dependants without recourse to public benefits. The non-US Citizen's spouse income and assets will be taken into account. If the US Citizen does not earn enough, he or she can obtain a co-sponsor. The co-sponsor will be responsible for supporting the non-US Citizen Spouse.
For the interview at the Embassy, the visa applicant must have a medical examination performed by a doctor pre-approved by the US Embassy. The visa applicant must also provide an ACPO. This report details a person's criminal record, if any.
4. How long does the process take?
It can take up to one year from the date the application is filed and the visa is actually issued if the petitioner and the beneficiary live in two different countries. If the married couple were living in England as husband and wife for at least six months at the time the I-130 Petition is ready to be filed then the time can be reduced by nearly half.
5. Is the visa issued with any conditions?
A Conditional Green Card is issued for two years if the marriage is less than three years. An application to remove the conditional status on the Permanent Resident status should be lodged within ninety days of the expiration. Even after the conditional status has been removed, the green card is only valid for ten years. Shortly before the end of the tenth year, the green card holder needs to apply to renew the green card unless the person has obtained US Citizenship.
6. Can the foreign born child of the non-US Citizen obtain a derivative visa to the US?
Yes, providing the child is single and has not reached adulthood.
7. What if my marriage dissolves before the end of the second year?
In most instances, the non-US Citizen will have to leave the US. However, in very rare circumstances, the non-US Citizen will be allowed to remain in the US. The most common reason is where the non-US Citizen was a victim of domestic violence and had to leave the marriage for his/her safety.
8. What pitfalls do Spousal Visa applicants face?
They face two primary pitfalls. The first pitfall is getting the application approved and the second pitfall comes when the spousal visa beneficiary goes to the Embassy for the interview.
The US citizen sponsoring the spouse must demonstrate that this relationship is a bona fide marriage. To get the application approved, the proper supporting evidence must be submitted. The application lacking this evidence will cause undue delay, if not a denial.
The second pitfall arises when the beneficiary goes to the Embassy for the interview. The visa will be issued only after the interview at the Embassy. The beneficiary must demonstrate to the Embassy official that he or she is not using the spousal visa as a means to immigrate to the US. Therefore, the person must be prepared for the interview. The preparation is not just for the interview itself but also in having the necessary supporting evidence for your interview.
9. Why use an US attorney based in England rather than an attorney in the US?
Although there are numerous benefits to using a US attorney based in England, the main advantage is the ease of communication between you and the attorney. There is no time difference between you and the attorney. Also, you can meet with the attorney in person rather than communicating by emails and phone.
10. Why use a lawyer instead of doing it yourself?
Successful visa applications are not just about submitting applications provided by the USCIS. Applications get approved on the supporting documents and evidence that are provided for each petition or application. Submissions that lack the appropriate documents will cause undue delay and possibly even result in denials. Appeals will not only become more expensive but result in undue delay of months. Visa denials mean that the applicant will no longer be able to travel under the Visa Waiver Scheme.
11. Why use Irwin Mitchell?
Experienced lawyers at Irwin Mitchell will assist you in preparing the application and for the interview at the Embassy. As part of the service Irwin Mitchell will provide a Letter of Support that explains in detail why the application should be approved and the visa issued. The team at Irwin Mitchell will also prepare you for the interview by giving you mock interviews.
Please contact our offices at 0121 214 5453 to discuss your matter with a member of the US Immigration team.