US Spouse Visa Requirements
Spouse visa options
Under US law, foreign spouses of US citizens and of US lawful permanent residents do not automatically gain immigration rights in the USA. To secure the right to enter or remain in the United States, they must make an appropriate application to the US immigration authorities.
This means evidencing that they meet the US spouse visa requirements and following the relevant – complex and protracted – petitioning process. A number of routes are available to non-US spouses. Options will be determined by your circumstances.
US spouse visa requirements
To meet the US spouse visa requirements, the couple must be in a relationship that is legally recognized as a marriage in the jurisdiction where the ceremony took place. This applies to same sex as well as opposite sex marriages.
The US citizen spouse must also have stable US employment over the minimum threshold required for visa processing. For Green Cards for example, applicants must demonstrate income of at least 125 percent of the federal poverty guidelines. For the 48 contiguous states and DC, this is:
|Persons in family / household||Poverty guideline|
Non-US spouse living outside the US
1. Green card for spouse outside the US
To bring your spouse to live with you in the United States as a permanent resident, you must either be a US citizen or a Green Card holder (‘Lawful Permanent Resident’).
Under the Green Card route, the US citizen spouse would sponsor their spouse’s visa for entry into the United States using form I-130, immigrant Petition for Alien Relative.
After the petition is approved, the immigrant has to await their priority date to become current before they can proceed with their immigrant petition. The priority date waiting list is over two years, and there will be further processing of around 10 months for the immigrant visa.
The foreign spouse completes the visa process from outside the US, with the application subject to administrative processing by USCIS, the National Visa Center and the US Embassy in the spouse’s country of residence.
Successful applicants will be granted an immigrant visa to enter and remain in the US under either:
- IR1 (immediate relative) visa – if married for longer than 2 years, or
- CR1 (conditional residency) visa if married for less then 2 years.
Once in the US, the non-US spouse attains permanent residency status immediately.
The conditional residency Green Card will expire after a two-year period. This status must be renewed within 90 days of the visa’s expriy date. This requires both spouses to submit a joint petition (form I-751) to remove the two-year condition.
Failure to file during this time will result in status being lost and the non-US spouse may be subject to removal from the United States.
2. Temporary US K-3 visa for spouse outside the US
The K-3 is a temporary visa allowing non-US spouses to enter the US while their Green Card application is being processed. It is applied for from outside the US once the US citizen spouse has filed Form I-130. With a K-3 visa, spouses are permitted to live and work in the US as they await their immigrant visa petition being processed.
K-3 applications have to be filed in the same country as where the marriage took place.
The petitioner will be assessed against standard entry criteria under US immigration rules, for example ensuring the applicant has no previous US immigration breaches, such as overstaying a visa.
During the visa interview, applicants will need to show they will not need to reply on public funds once in the US. This could mean proving that they are financially self-sufficient or that their US spouse’s income is 100 percent of the federal poverty guideline, which is to be evidenced using form I-134.
Processing times will vary depending on the Consular post where you have filed your petition and the quality of your application – errors or omissions in your documentation will result in a delayed decision. In general, you could expect processing to take up to 4 months.
Note that dependant children would apply under the K-4 visa.
Fiance visa from outside the US
The fiancé visa permits a non-US national to enter the US for the purpose or getting married and applying for the Green Card. The visa holder has 90 days in which to get married and file form I-485 to adjust their status.
It can take around ten months for the fiancé visa to be processed and a further one to two years to attain permanent residence.
Processing takes approximately four to six months, and includes an interview with the fiancé or fiancée who is abroad.
If you are a U.S. citizen, you may bring your fiancé(e) to the United States to marry and live here under the K-1 visa.
Can you enter the US on a visitor visa and then apply for a spouse visa?
If you are outside the US, the correct channel for a non-US spouse to come to the US would be to apply for the K-3 visa from within the country where they were married while the Green Card application is processed. Once approved, they can enter the US to live and work. The problem with this is that processing times for the K-3 visa may feel too long for couples to be apart.
In reality, many couples ask whether the non-US spouse can enter the US under a visitor visa, and once in the US apply for the Green Card. This can be problematic for a number of reasons. US border officials reserve the right to refuse entry at the border if they are not satisfied of your intention to leave the US ahead of your visa expiry (intending immigrant).
Once the petition is filed within the US, while USCIS may take issue with this approach, they are not likely to refuse the application on this basis alone.
Do you have a question about the US Spouse Visa Requirements?
Your options to join your spouse in the US will depend on your particular circumstances, including whether you are married to a US citizen or lawful permanent resident, or whether you are outside or already in the US. Taking advice will ensure you follow the correct route and file the appropriate petitions.
NNU Immigration are London-based US immigration attorneys, working with individuals from across the globe to make the move and jpin their loved one in the US.
Contact us for advice with your spouse visa application.
This article does not constitute direct legal advice and is for informational purposes only.