Maggio+Kattar

United States citizens may petition for, or “sponsor,” their foreign national spouses to become permanent residents (“green card” holders) of the United States.  The immigration of a foreign national spouse of a United States citizen is initiated by the filing of an I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Services (“USCIS”).  These petitions must be accompanied by documentary evidence of the existence of a spousal relationship and evidence of the U.S. citizen sponsor’s citizenship.  Additionally, USCIS requires extensive evidence that the married couple’s relationship is genuine.  A marriage entered into solely for immigration purposes is a crime for both parties, and bars the foreign national forever from having a visa petition approved on his or her behalf.  While many family petitions involve long waiting lines for visa numbers to become available, there are no such waiting lines for spouses of United States citizens, who are considered “immediate relatives.”  Processing times for these petitions vary, but usually take several months.  When a petition is approved, the foreign national may then apply for an immigrant visa.  This permits the foreign national to become a permanent resident of the United States (“green card” holder) after admission to the United States with the immigrant visa.  Or, if eligible, he or she may concurrently apply to adjust status to permanent resident (“green card”) while present in the United States.  Importantly, the beneficiary of an immediate relative immigrant visa petition is required to submit a petition to “remove the conditions” on residence to the USCIS if he or she was admitted as a legal permanent resident within the first two years of marriage.  This supplemental petition must be filed within 90 days of the second-year anniversary of becoming a legal permanent resident.

Most family-based visa petitions are initiated when the sponsoring relative files an immigrant visa petition, also known as a Form I-130, with the appropriate Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Service Center or U.S. Consulate abroad. The date of receipt of this petition by USCIS establishes the “priority date,” or place in line for an immigrant visa. Processing times for these petitions vary from several months or much longer depending on visa availability.  When a petition is approved, and the “priority date” becomes current (i.e. after any applicable waiting line has passed), the sponsored individual may apply for an immigrant visa or, where eligible, apply for adjustment of status to obtain lawful permanent residence in the United States.   An immigrant visa permits the individual to become a legal permanent resident (“green card” holder) after admission to the United States with the immigrant visa. It is important to note that filing an immigrant visa petition for a relative can make it more difficult for the sponsored individual to obtain a tourist, student, or certain other types of temporary visas or it may bring an individual here in the United States without authorization to the attention of the immigration authorities. Additionally, an individual must otherwise be eligible to obtain lawful permanent resident status in the United States or be eligible for a waiver of inadmissibility.  An individual’s admissibility should also be thoroughly assessed before a visa petition is filed.  As such, we recommend that immigration counsel be consulted before a visa petition is filed.