Getting Your U.S. Marriage or Spousal Visa
You’ve been visiting the one you love in the United States via the Visa Waiver Program known as ESTA, which stands for Electronic System for Travel Authorization. This program permits you to visit the U.S. for up to ninety days without first obtaining a Visa.
Under ESTA, you’re generally allowed to be a tourist, stop in the U.S. en route to another country, or engage in certain business activities on U.S. shores. Except now things have changed. You’ve married an American citizen (or you’ve become engaged to one), so you want to relocate to America for the long haul, maybe even become a U.S. citizen.
This means it is time to apply for a Marriage Visa, which is also called a Spousal Visa, which will bring you into that portion of the Visa process known commonly as the “family-based" Visa system.
If I want to hire you, does it matter where I live or where my fiancé lives?
No, it does not. The beauty of modern technology is that our law firm can be retained from anywhere. You can live in any of the fifty U.S. states or territories, or you can live overseas in any foreign county. We can help you no matter where you are, communicating through any platform that works best for you: land line, mobile phone, Skype, WhatsApp, Zoom, you name it. All the information we need can be exchanged via email, and much of the application process is online anyway. So, if you have any questions after reading this post, please, give us a call or email us right away. We are here to serve your immigration needs.
What Exactly is a Marriage or Spousal Visa, anyway?
A Marriage Visa or Spousal Visa is the kind of Visa that permits a married person such as yourself – a foreign citizen married to an American citizen – to legally immigrate to the United States of America, then live and work here on a long-term basis, potentially leading to American citizenship. To secure this Visa, there are two primary routes that you can take: (1) by applying for what is known as the “CR-1 Marriage Visa,” or (2) by applying for what is known as the “IR-1 Marriage Visa.” Let’s let more closely to the two options, to see which one fits your situation.
The CR-1 and IR-1 Marriage or Spousal Visa Options
The difference in the two types of Marriage Visa processes depends on only one thing: how long you have been married. If you have been married for more than two years, you as the foreign citizen will proceed via the IR-1 Visa application process. If you have been married for less than two years, then you as the foreign citizen will proceed along the CR-1 Visa application route. There used to be a more common third route, but it is largely moot today, so stay focused on these two.
The CR-1 Visa application is short for Conditional Resident Visa. Upon issuance, it will provide you with a conditional residency that is permanent. Usually this means you can start working in the United States after only several months upon receipt of your green card. To remove the conditional status, you and your spouse must apply jointly to remove the condition, by proving you got married authentically, not just to get around the immigration laws. The two of you must jointly file this application within two years of being issued your Visa, and it is never wise not to wait until the last minute. Err on the side of caution by applying at least ninety days for your Visa is set to expire, and seeking any immigration assistance you might need even before that.
IR-1 translates into Immediate Review Visa. For spouses who have been married more than two years, this is the only way to go. The process is basically the same at that for the CR-1 Visa process, the principal difference being you can work immediately upon arriving in the United States. So let’s discuss the boxes that you as the applying Visa applicant will need to tick off when making your application, regardless of which way you proceed.
Qualifications for the Applying Spouse
The first and most fundamental requirement for a Marriage or Spousal Visa is that you have entered into a legally valid marriage with an American citizen. A marriage that is “legally valid” is most often one which started with a marriage license and concluded with a certificate of marriage from a legally-recognized government entity from the country in question. The country of the marriage is generally not an issue. It can be in a place like Los Angeles, or in any other city or state in America; or it can be in any other city and country.
The USCIS – aka the United States Citizenship and Immigration Services - will sometimes recognize common law marriages, as long as they are recognized in the jurisdiction where the marriage took place, but these are closer calls. In this vein, simply living together is generally not enough. And while it used to be an issue, because the U.S. Supreme Court has held the Defense of Marriage Act unconstitutional, same-sex marriages are now legally sufficient if otherwise valid for Marriage or Spousal Visa purposes.
Financial Wherewithal, Age, and Residency
Financial wherewithal and age intertwine in the Marriage and Spousal Visa process. As part of your application, you must prove either (1) that you have the financial resources to support yourself when you immigrate to the United States, or (2) if you personally do not, that your American spouse has the ability to support you. Though the American sponsor need not be of a certain age to file his (or her) sponsor petition, he (or she) must be eighteen years of age to file an Affidavit of Support. Either way, the American citizen half of the marriage must maintain his or her primary residence in America, whether filing a Form 1-130 or an Affidavit of Support, which is Form I-864 or I-864EZ.
The Petition for Alien Relatives
The process begins with the American spouse filing a document known as the “Petition for Alien Relatives.” You as the foreign citizen are the alien relative, i.e., the alien spouse. Casually called the Form I-130, this document proves that there is an authentic, legal family relation between you as the foreign resident and your spouse as an American citizen or person holding a valid green card. Since this document is filed with the USCIS, you thereby enter the domain of the U.S. Department of Homeland Security, which is the beginning of your family-based Visa journey.
The Documentation You Will Need
Here are the primary documents you will need as part of your Marriage or Spousal Visa process:
(1) the completed and signed Petition for Alien Relatives,
(2) a certified copy of the American citizen’s birth certificate or all pages to his or her passport,
(3) the original or a certified copy of your Marriage Certificate,
(4) the original or certified copy of the Divorce decree of any prior marriage, establishing you were legally authorized to re-marry,
(5) proof above and beyond the marriage certificate that the marriage is authentic and represents a true marital relationship (more on that below), and, of course,
(6) Your filing fee.
Proof of Marital Relationship
You might think that the Marriage Certificate is enough to prove your marriage, but it is not. In many countries throughout the world, it would be too easy to obtain a fraudulent Marital Certificate, or you could simply marry with no intention of being truly husband and wife.
What matters most to the USCIS is that the marriage is not a fake, a relationship contrived to obtain a Visa and thereby the benefits of permanent residency. While a Marriage Certificate is an essential start, proof of an ongoing relationship must be proven. This can be shown in any variety of ways, but these are the more common:
- A joint bank account with activity over time,
(2) Bills to the same address, preferably over time,
(3) Commonly-owned real or personal property, such as a house or car,
(4) Legal documents such as a lease showing you and your spouse as “husband and wife,”
(5) Ongoing phone records showing regular communication, and
(6) Emails, money transfers, and airplane tickets showing visitation between each other.
Once the USCIS gives the stamp of approval to your Petition, it is transmitted to the NVC, which stands for the National Visa Center. This is a central place that receives all the Petitions and Visa application fees on behalf of the United States Embassies and Consulates.
The NVC begins the process by sending you a packet of information listing everything that you will need to file in order to be interviewed for your Marriage Visa (forms, proofs, etc.). Generally, all of the following must be included in your filing package:
- A current, original passport,
- The aforesaid Affidavit of Support, where it is necessary,
- The Application for your Visa,
- The Petition for Alien Relatives registration,
- Properly-sized passport photos (precisely two inches by two inches),
- Medical forms properly completed by an approved doctor,
- The original or a certified copy of your Birth Certificate,
- Certain legal records where applicable (judgments, convictions, incarceration records, if any),
- Military records, and
- Miscellaneous police certificates when applicable.
Your Visa Interview
The interview is the place where you and your spouse must bring your person and any of the documentation that you may previously have left out. This could be your original birth certificate, divorce decree(s), current passport, photos -- that kind of thing. At that time, your biometrics will also be taken, including specifically your digital fingerprints that then become part of the permanent immigration record. Most of the time, the decision to issue you a Marriage or Spousal Visa is made right then and there at the interview.
You’ve Been Approved!
If you are approved, you will receive your original Passport back with a Visa Stamp indicated thereon right there at the interview. You will also be given a sealed package with all of the materials that you have provided immigration.
Most of the time, the Visa is granted for six months, with the stipulation that the applicant travel to America during that six-month timeframe, else face the prospect of starting all over again. However, the process is not done. The sealed package must then be delivered unsealed to the U.S. Immigration Officer who processed you through the border.
Keep this thought clearly in mind when using your Visa. Even though you’ve been issued one, technically that only gives you authorization to present yourself for consideration. The Immigration Officer (and the Department of Homeland Security) will make the final decision on whether you will be allowed entry.
Give yourself plenty of time to conduct the entire immigration process. The time period involved is fluid, but usually is complete between six to twelve months. Some countries do take longer than others, depending on conditions between that country and the U.S., as well as security conditions in the world. Patience and attention to detail, therefore, are duel virtues as you apply for and await the results of your Marriage Visa process to be processed and, hopefully, approved, since even a small, technical error can delay or result in denial of the Visa.