Petitioning for a Spouse
The process for petitioning for a spouse's "green card" or permanent residence varies depending on
- Whether the spouse in physically present in the U.S. or is outside the U.S.; and,
- The Petitioner's status as a U.S. citizen or permanent resident.
A U.S. citizen's "immediate relative", including a spouse, is exempt from the preference category system.
There are a limited number of immigrant visas available in a given U.S. government fiscal year (October 1 - September 30). The number of immigrant visas available annually is allocated among several preference categories. When a preference category is fully subscribed a "waiting line" is established that prioritizes "who is where in line".
There is an "exception" to the preference system for "immediate relatives" of U.S. citizens, which includes parents, spouses and unmarried children under the age of 21. "Immediate relatives" of U.S. citizens do not have to wait for an immigrant visa number to become available. Once DHS/USCIS approved the Petition the immigrant visa is immediately available without a "wait in line".
The advantage of qualifying as an "immediate relative" of a U.S. citizen is that there is no numerical limitation or backlog for sponsorship. The United States Citizenship and Immigration Services (USCIS) and the Department of State (DOS) refer to this as the "visa number is immediately available".
Immigrant visas are not immediately available for a U.S. citizen's relatives who are not "immediate relatives", and spouses and children of permanent residents. These relatives generally are in the "waiting line" once DHS/USCIS approves the Petition.
The "wait" is administered through what is known as "preference categories". The immigrant visa number availability are based on the preference category and published in the Visa Bulletin.
If the beneficiary-spouse is legally present in the U.S. when the petition is approved and when an immigrant visa number (if required) becomes available, s/he may apply to the USCIS to adjust his/her status to lawful permanent resident in the U.S.
Spouse of a U.S. Citizen
If the petitioner is a U.S. citizen, USCIS has approved the petition, and the if the beneficiary-spouse is legally present in the U.S. when the petition is approved and when an immigrant visa number (if required) becomes available, s/he may apply to the USCIS to adjust his/her status to lawful permanent resident in the U.S.
If the petitioner is a U.S. citizen, but the beneficiary-spouse is not lawfully present in the U.S. at the time USCIS approves the petition, the approved petition is forwarded to the appropriate U.S. consulate and the beneficiary-spouse is scheduled for an immigrant visa interview.
The U.S. consulate makes a separate decision whether to issue the immigrant visa. If the consular officer approves the visa the spouse is issued a K-3 visa and is authorized to apply for admission to the U.S. at a port of entry.
Spouse of a Permanent Resident
If the petitioner is a permanent resident and DHS/USCIS has approved the petition, the approved petition is forwarded to the National Visa Center (NVC) where the petition (actually the case file) stays until an immigrant visa number becomes available.
Immigrant visa numbers become available based on the Department of State's Visa Bulletin which is issued monthly by the State Department.
When the immigrant visa number becomes available the petitioner-spouse and the beneficiary-spouse are notified to submit certain documents to the NVC, including an Affidavit of Support. If the Affidavit of Support is adequate the NVC forwards the approved petition to the appropriate U.S. consulate and the spouse is scheduled for an immigrant visa interview. The U.S. consulate makes a separate decision whether to issue the immigrant visa. If the consular officer approves the visa the spouse is issued a K-3 visa and is authorized to apply for admission to the U.S. at a port of entry.
Permanent resident status is granted after an immigrant visa interview which in the vast majority of cases takes place in the U.S. with a DHS/USCIS immigration officer. If permanent residence is granted is may be either ten-year permanent residence or two-year permanent residence.
When the spouses have been married less than two years at the time the beneficiary-spouse is granted permanent residence s/he is granted permanent resident status on a conditional basis; referred to as "conditional residence" or two-year residence.
The date on the Permanent Resident Card ("green card") determines when a conditional permanent resident must subsequently petition to remove the conditions of residence. A conditional resident may apply to remove the conditions of residence during the 90 days prior to its expiration, and must apply before the expiration date. Otherwise, s/he is out of status and subject to removal.
Both spouses, generally, apply at the same time to remove conditions of residence. A conditional resident who is not longer married to his/her petitioner-spouse, or is the victim of spousal abuse, can apply to waive the requirement for filing jointly.
A child who received conditional resident status within 90 days of his/her parent may be included in the parent's petition. Otherwise, the child must file a separate petition to remove conditions of residence.
Failure to timely file the petition to remove the conditions of residence results in the beneficiary-spouse being out of status and s/he may be subject to removal. Often the USCIS will automatically terminate conditional resident status when one fails to timely file to remove conditions of residence, and commence removal proceedings.