Can a permanent resident get a visa for his or her spouse? The answer is yes, foreign spouses of U.S. green card holders (people with lawful permanent residence) are eligible for immigration under the family second preference category (2A).
Unfortunately, their eligibility will not lead to a green card right away. The process can take several years, as described below. But the green card holder may be able to speed things up by becoming a U.S. citizen, as also described below.
Annual Numerical Cap on Family Second Preference Category
The number of visas issued each year under the family second preference is limited to approximately 114,200, plus some unused visas from other categories. This allotment is not for spouses alone: Category 2A also covers unmarried children of lawful permanent residents.
As a result, there are never enough visas to give to the number of people who apply for them each year, and a long waiting list has developed. A spouse’s place on the waiting list depends on his or her “priority date,” which is set by the date that you file the initial visa petition on your spouse’s behalf (on Form I-130, issued by U.S. Citizenship and Immigration Services or USCIS).
To see the priority dates of people who are currently receiving visas, and ultimately track your own spouse’s place on that list, view the “Visa Bulletin” on the U.S. State Department’s website. Typical waits are four or five years long.
Basic Eligibility Requirements
In order for your spouse to be eligible for a green card based on your marriage, the marriage must, first off, be a legally valid marriage, and not one entered into merely for the purpose of evading immigration laws. You’ll be asked to prove that the marriage is bona fide at various points to the application process.
In addition, your spouse must not be “inadmissible” to the United States. The grounds of inadmissibility are long and complicated, but the most troublesome ones for married couples tend to be those concerning past crimes or immigration violations and the likelihood that the immigrant will become a “public charge” because the couple’s household finances are not sufficient to avoid receiving need-based government assistance.
A particularly difficult ground of inadmissibility arises if your spouse is living illegally in the United States, whether that's due to having entered without inspection or having overstayed a visa. First, understand that starting a green card application process on someone's behalf (that is, filing Form 1-130 and placing the spouse on the waiting list) will not give him or her any right to come to or remain in the United States. Unless a spouse already has a valid visa (and hasn't stayed past the required departure date) or some other right to be in the United States, the spouse is expected to wait in his or her home country until the priority date is current before moving forward to claim any immigration rights.
What If the Immigrant Spouse Waits in the U.S. Illegally?
Waiting in the United States illegally until the spouse’s priority date is current can lead to disastrous results. That’s because accruing unlawful presence in the United States can lead to an inadmissibility bar of several years long. With 180 days of unlawful presence, the spouse can be barred from returning to the U.S. for three years; and with one year’s unlawful presence, the time bar becomes ten years.
These penalty bars will be placed by the U.S. consulate when your spouse goes to apply for the immigrant visa/green card. (Someone who has been living illegally in the United States is unlikely to be able to “adjust status,” that is apply for a green card without leaving the United States.) See an experienced immigration attorney if you are attempting to obtain a green card for someone already living illegally in the United States.
Forms and Documents
To start off the process, the green card holder must complete USCIS Form I-130 and submit it along with evidence of the marriage and proof of status as a green card holder to USCIS. See the Form I-130 page of the USCIS website for full instructions and to download the form.
After the I-130 has been approved and the spouse’s priority date has become current, you’ll receive further forms and instructions from the National Visa Center and then the appropriate U.S. consulate in the immigrant’s home country. Or, in the rare case that your spouse is in the United States and eligible to adjust status here, you will need to prepare a packet of forms (starting with Form I-485) and documents and submit these by mail to USCIS.
The final step in this process is for your spouse to attend an interview at a U.S. consulate, where the paperwork will be reviewed and a decision made on the immigrant visa. Upon entry to the U.S. with the immigrant visa, your spouse becomes a lawful permanent resident. Or, if your spouse will be adjusting status, the two of you will attend an interview at a local USCIS office.
The Benefits of the Green Card Holder Becoming a U.S. Citizen
Once the green card holder naturalizes to U.S. citizenship (which he or she can probably apply for after five years of permanent residence), the spouse becomes what's known as an "immediate relative." That means the person is not subject to the waiting list, but can move forward with a green card application right away. As a further benefit of being an immediate relative, if the spouse in in the United States after a legal entry (such as with a visa), he or she can go ahead and apply to adjust status, regardless of any visa overstay. (But people who entered without inspection or illegally receive no such benefit.)
If the spouse is overseas, then you'll need to advise the National Visa Center, which is holding the file waiting for the old priority date to become current, of the petitioner's change in status to U.S. citizen. The easiest way to do so is by sending a letter with a copy of the naturalization certificate. The NVC will then forward the file to the appropriate consulate for immigrant visa processing.
Getting Legal Help
The above is a very brief summary of a complicated process and set of laws. For a detailed personal analysis of your spouse’s eligibility for a green card, and help with the application process, talk to an experienced U.S. immigration attorney.
