Immigration Law -- Immediate Relative Visa Options

By John DiMotto

If an individual seeking a visa and permanent residency in the United States is an "immediate relative," (IR) such as a spouse, there are two possible ways to obtain an immediate relative visa. First, the US citizen spouse (USCS) can file an I-130 with USCIS in the United States. Second, if the US citizen is a resident of the country where the IR lives, the US citizen may be able to file the I-130 with the US embassy in that country.

Filing the I-130 in the US:

If the USCS files the I-130 in the United States, the USCS may also concurrently file an I-485 Petition to Adjust the Status of the IR. The granting of the I-130 Petition will get the IR a visa to enter the country. The subsequent granting of the I-485 Petition will get the IR his/her "green card" -- permanent residency. Filing in the United States is a two step process. It ordinarily takes 5 - 6 months to get approval of each Petition.

Filing the I-130 with the US Embassy in the country of the IR:

If the USCS is eligible to file the I-130 with the US Embassy in the country where the IR lives, a process known as "Consular Processing" (CP), the IR can become a permanent resident directly through CP. Everything is done through the US Embassy which is a much quicker process. USCIS via the embassy works with the State Department to issue an IR visa on an approved I-130 Petition. If the State Department issues the visa, the IR spouse may then travel to the United States and will officially become a permanent resident when admitted at a US port of entry. If CP can be used it can potentially reduce the total time to obtain permanent residency by half.

In order to be able to file the I-130 with the US Embassy in the country of the IR, the USCS must meet filing requirements. The key filing requirement is that the USCS must be a resident in the country of the IR. They must show they have permission to reside in the consular district and have been doing so for at least six months before filing the petition.

Regardless of whether the I-130 is filed in the United States or in the US Embassy in the country where the IR lives, an important component in the process is the consular interview. Once the I-130 has passed a review by USCIS and the National Visa Center, the last step before a final decision is made is the consular interview. This takes place at the US Embassy. The interviewer wants to make sure that the request is appropriate. If the IR is a spouse, the interviewer will want to be satisfied that the marriage is legitimate and not merely a sham to get the IR into the United States. The IR will oftentimes present documentary evidence and photographs, etc that establish a "true" marital relationship. If the interviewer is satisfied that the relationship is genuine and that the IR will not be a burden or threat to the United States, final approval is given, the IR visa issued and the IR may immigrate to the United States.

In my next blog, I will look at the K-1 "Fiance" visa process.