If you are a United States citizen married to a foreign national, and you want to sponsor your spouse’s immigration, you are probably wondering what the best and fastest way to do it is. This is not an easy question.
In some cases, the fastest way to bring your spouse to the United States may not be the best one, and a mistake can lead to unfavorable consequences for your family.
This section will help answer some of the basic questions you may have. However, you should be careful and talk to an experienced immigration lawyer about your specific case in order to avoid any potential problems and complications.
Immigration for Spouse Who Is In the United States / Adjustment of Status (AOS)
If your foreign spouse is in the United States, he or she may file for adjustment of status (green-card) at the same time when you file your Petition for Alien Relative for him or her.
Note that you can do that even if your spouse does not currently have a valid immigration status or violated their status, as long as he or she entered the United States legally. Your spouse can also apply for employment authorization (work permit) and travel authorization (travel document) at the same time.
Provided that you file everything correctly and your case does not encounter problems, your spouse may receive his or her green-card as soon as in four (4) to six (6) months. If the process lasts longer, the foreign spouse may be able to work in the United States and travel outside the United States while his or her immigration process is pending.
Currently, adjustment of status provides a faster immigration process compared to consular processing. In addition, adjustment of status applicant does not have to obtain police clearance records from abroad, as applicants for consular processing do.
However, in order to be eligible for adjustment of status an applicant must be physically present in the United States, which could present a difficulty for some couples.
If your spouse leaves the United States while his or her adjustment of status is pending, without first securing advance parole travel permission, his or her adjustment application will be considered abandoned (unless he or she is an H or L visa holder and maintains H or L status).
In addition, foreign spouse who leaves the United States while his or her adjustment of status application is pending, may trigger 3- or 10-year bar, which prohibits him or her from entering the United States for 3 to 10 years, if he or she had accrued more than 180 days (approximately 6 months) of unlawful presence in the United States. While advance parole also does not guarantee that such immigrants will be able to enter the United States after an absence, recent legal precedent has been in favor of advance parole holders with pending adjustment of status applications.
Benefits of K-3 / K-4 Visa
Once admitted to the United States, K-3 visa holders may apply to adjust status to a permanent resident with the USCIS at any time. Upon admission to the United States, K-4 visa holders may file an application for adjustment of status concurrently with or at any time after a Form I-130 has been filed on his or her behalf by the U.S. citizen petitioner. For more information, please see the USCIS website: K-3/K-4 Nonimmigrant Visas.
Upon admission, K-3 and K-4 nonimmigrant visa holders may obtain employment authorization. Upon filing an application for adjustment of status, K-3 and K-4 nonimmigrant visa holders may also apply for employment authorization based on that pending application even if the K-3 or K-4 nonimmigrant status expires.
Limitations of K-3 / K-4 Visa
When both petitions, I-130 and I-129F, have been approved by USCIS and sent to the National Visa Center (NVC), or when USCIS approves the I-130 before the I-129F, the availability of, as well as the need for, a nonimmigrant K-3 visa ends.
- The nonimmigrant K-3 visa case will be administratively closed.
- The K-3 non-immigrant visa application process will not be available to the foreign-citizen spouse and cannot be used.
- The NVC will contact the U.S. citizen sponsor and foreign-citizen spouse with instructions for processing the immigrant visa.
However, in reality, the processing of I-129F petitions necessary for K-3 visas usually takes nearly as long as the processing of the I-130 petitions needed for immigration. Therefore, at present, it usually makes sense to file for K-3/K-4 visa only as insurance, in case the processing of I-130 petition gets extremely delayed.
In normal circumstances, when the I-130 petition is approved within a reasonable timeframe, the foreign spouse can immediately undergo the consular processing and enter the United States as a permanent resident, thus eliminating the need for K-3 visa as well as the need to go through adjustment of status process in the United States.
Avoiding Potential Problems while bringing the spouse to the US
The immigration process for a foreign spouse living abroad may seem long and complicated, and people often wonder if there is a way around it. Sometimes, couples think that it would be easier and faster if the foreign citizen comes to the United States on a visitor’s or tourist visa, marries the U.S. citizen, and adjusts his or her status in the United States. For couples who are already married, there is a temptation for the foreign spouse to come to the United States as a visitor or tourist and adjust her status in the United States. However, doing so can be dangerous and have very serious consequences for the foreign spouse’s immigration.
If you want to avoid anxiety and uncertainty of handling your own case, you have come to the right place. We try to expand and update the information and content on our website, by frequently adding new resources, tips, guides, and Q&As.
Thank you for reading this Blog! Happy Weekend!