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The Immigrant Spouse Visa
Definition of a Spouse Under U.S. Immigration Law
A spouse is a defined under U.S. immigration law as a legally wedded husband or wife.
- Simply living together with your partner does not qualify as a marriage for purposes of applying for a spouse visa to the U.S.
- Common-law marriages may qualify as marriages for spouse visa purposes, depending on the laws of the country where the common-law marriage occurs.
- In cases of polygamy, only the first marriage may qualify for purposes of a applying for a spouse visa.
- Currently, same-sex marriages are not recognized by immigration law for the purpose of obtaining a spouse visa to the U.S.
Filing the Spouse Visa Petition
The first step toward obtaining a spouse visa is for the U.S. spouse to file a Petition for Alien Relative, Form I-130, with the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) for your spouse (husband or wife) to immigrate to the United States.
In certain circumstances, a U.S. citizen living abroad can file an immigrant spouse visa petition outside of the United States.
U.S. Sponsor Minimum Age Requirement
There is no minimum age for a U.S. sponsor (petitioner) to file a petition for a spouse. However, the sponsor must be at least 18 years of age and have a residence (domicile) in the U.S. before you can sign the Affidavit of Support (Form I-864 or I-864EZ). This form is required for an immigrant spouse visa for a spouse and other relatives of U.S. sponsors.
Is Residence in the U.S. Required for the U.S. Sponsor?
Yes. As a U.S. sponsor/petitioner, you must maintain your principal residence (also called domicile) in the U.S., which is where you plan to live for the foreseeable future. Living in the U.S. is required for a U.S. sponsor to file the Affidavit of Support, with few exceptions.
If You Were an LPR and Are Now a U.S. Citizen: Upgrading a Petition
If you filed a spouse visa petition for your spouse when you were a lawful permanent resident (LPR), and you are now a U.S. citizen, you must upgrade the petition from family second preference (F2) to immediate relative (IR). You can do this by sending proof of your U.S. citizenship to the National Visa Center (NVC). You should send:
- A copy of the bio data page of your U.S. passport; or
- A copy of your certificate of naturalization
Important Notice: If you are now a U.S. citizen, you must file separate immigrant visa petitions for each of your children. If you upgrade a family second preference (F2) petition for your spouse and you did not file separate petitions for your children when you were a lawful permanent resident (LPR), you must do so now. A child does not receive derivative status in an immediate relative (IR) petition. This is different from the family second preference (F2) petition where a child is included in his/her parent’s F2 petition. A child is not included as a derivative in his/her parent’s IR petition.
Children born abroad after you became a U.S. citizen may qualify for U.S. citizenship. They should apply for U.S. passports. The consular officer will determine whether your child is a U.S. citizen and can have a passport. If the consular officer determines your child is not U.S. citizen, the child must apply for an immigrant visa before he/she may immigrate to the United States.
Next Steps – Fees, Affidavit of Support, and Spouse Visa Application
After the USCIS approves the spouse visa petition, it is sent to the National Visa Center (NVC). Once received, the NVC will assign a case number for the spouse visa petition and send the Choice of Address and Agent form to the applicant, if an attorney or agent will be used. (NOTE: If you already have an attorney, the NVC will not send you this form.) NVC will begin pre-processing the applicant’s case by providing the applicant and petitioner with instructions to submit the appropriate fees. After the appropriate fees are paid, the NVC will request that the applicant submit the necessary immigrant spouse visa documents, including the Affidavit of Support, application forms, civil documents, and more.
Government Fees
During the spouse visa petition and application process, government fees are charged for the following services:
- Filing an immigrant Petition for Alien Relative, Form I-130 (currently $420, charged by the USCIS);
- Processing an immigrant spouse visa application, Form DS-230 or DS-260 (currently $404, charged by the Department of State)
- Medical examination and required vaccinations (fees will vary depending on the provider)
- Other costs may include: translations; photocopying charges; fees for obtaining the documents you need for the immigrant spouse visa application (such as passport, police certificates, birth certificates, etc.); and expenses for travel to the U.S. embassy or consulate for your visa interview. Costs vary from country to country and case to case.
Note: Government fees are charged for each intending immigrant, regardless of age, and are non- refundable.
Fees should not be paid to the NVC or paid at the U.S. embassy or consulate where you have your spouse visa interview unless specifically requested. Applicants will be provided with instructions by the NVC on where and when to pay the appropriate fees. Do not send payments to the NVC’s address in Portsmouth, New Hampshire.
Required Documentation
In general, the following documents are required for spouse visa applications:
- Passport(s) valid for 60 days beyond the expiration date printed on your immigrant spouse visa
- Affidavit of Support (I-864, I-864A, I-864 EZ, or I-864W, as appropriate) signed by the U.S. petitioner and/or the U.S. sponsor.
- Application for Immigrant Visa and Alien Registration, Form DS-230, both Part I and Part II, or Online Immigrant Visa Application and Registration, Form DS-260 (NOTE: Form DS-260 is a new limited-use online application form. It is currently in limited use for immigrant visa applicants whose cases meet certain criteria.)
- Two (2) 2×2 photographs.
- Civil Documents for the applicant. The consular officer may ask for more information during your spouse visa interview. If not already submitted to the NVC, bring clear, legible photocopies of civil documents, such as birth and marriage certificates, and any required translations to your immigrant spouse visa interview. Original documents and translations can then be returned to you.
- Completed Medical Examination Forms – These are provided by the panel physician after you have completed your medical examination and vaccinations (see below).
Spouse Visa Interview
Once the NVC determines the file is complete with all the required documents, they will schedule the applicant’s interview appointment. The NVC will send the file, containing the applicant’s spouse visa petition and the documents listed above, to the U.S. embassy or consulate where the applicant will be interviewed for a visa. The applicant, petitioner, attorney, and third-party agent, if applicable, will receive appointment emails, or letters (if no email address if available), containing the date and time of the applicant’s visa interview along with instructions, including guidance for obtaining a medical examination.
Applicants should bring their valid passports, as well as any other documentation above not already provided to NVC, to their visa interviews. During the interview process, ink-free, digital fingerprint scans will be taken. Generally, applicants will receive their original civil documents and original translations back at the time of their spouse visa interview.
Medical Examination and Vaccinations
Important Notice: In preparing for your interview, you will need to schedule and complete your medical examination and any required vaccinations before your visa interview. Before an immigrant spouse visa can be issued, every applicant, regardless of age, must undergo a medical examination which must be performed by an Department of State authorized panel physician. Spouse Visa applicants are provided instructions by NVC regarding medical examinations, including information on authorized panel physicians in their country.
Vaccination Requirements
U.S. immigration law requires immigrant spouse visa applicants to obtain certain vaccinations prior to the issuance of immigrant visas.
What Is Conditional Permanent Residence?
If you have been married for less than two years when your foreign citizen spouse enters the United States on an immigrant spouse visa, his or her permanent resident status is considered “conditional.” The immigrant spouse visa is a conditional resident (CR) visa, not an immediate relative (IR) visa.
You and your spouse must apply together to the USCIS to remove the conditional residence status within the ninety days before the two-year anniversary of your spouse’s admission into the United States on his or her immigrant spouse visa. The two-year anniversary date of admission is the date of expiration on your spouse’s alien registration card (green card).
How Long Does The Process Take?
The length of time varies from case to case and cannot be predicted for individual cases with any accuracy. Some cases are delayed because applicants do not follow instructions carefully. Sometimes the U.S. sponsor, or petitioner, cannot meet Affidavit of Support requirements. Some spouse visa applications require further administrative processing, which takes additional time after the spouse visa applicant’s interview by a consular officer.
Visa Ineligibilities
Certain conditions and activities may make an spouse visa applicant ineligible for a visa. Examples of these ineligibilities include: drug trafficking; overstaying a previous visa; and submitting fraudulent documents. If you are ineligible for a visa, you will be informed by the consular officer and advised whether there is a waiver of the ineligibility available to you and what the waiver process is.
Misrepresentation or Fraud
Attempting to obtain a visa by the willful misrepresentation of a material fact or fraud may result in you becoming permanently ineligible to receive a U.S. spouse visa or enter the United States.
When You Have Your Immigrant Spouse Visa – What You Should Know
If you are issued an immigrant spouse visa, the consular officer will give you your passport containing the immigrant spouse visa and a sealed packet containing the documents which you provided. It is important that you do not open the sealed packet. Only the U.S. immigration official should open this packet when you enter the United States. You are required to enter the U.S. before the expiration date printed on your visa. When traveling, the primary (or principal) applicant must enter the U.S. before or at the same time as family members holding visas.
Entering the U.S. – Port of Entry
A spouse visa allows a foreign citizen to travel to the U.S. port of entry and request permission to enter the U.S. Applicants should be aware that a spouse visa does not guarantee entry into the U.S. The DHS, U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the U.S. Travelers should review important information about admissions and entry requirements on the CBP website under Travel.
How to Apply for a Social Security Number Card
If you elected on your immigrant spouse visa application form to receive your Social Security Number Card upon admission to the United States as an immigrant, your card will be sent via mail to the U.S. address you designated on your application form, and should arrive approximately six weeks following your admission. If you did not elect to receive your Social Security Number Card automatically, you will have to apply to be issued a card following your arrival in the United States. To learn about applying for a Social Security Number Card, visit the U.S. Social Security Administration website.
Additional Information
Immigrant spouse visa applicants should not make any final travel arrangements, dispose of property, or give up jobs until and unless visas are issued. Some spouse visa applications require further administrative processing, which takes additional time after the spouse visa applicant’s interview by a consular officer. An immigrant spouse visa is generally valid for six months from the issuance date.
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Definition of a Spouse Under U.S. Immigration Law
A spouse is a defined under U.S. immigration law as a legally wedded husband or wife.
- Simply living together with your partner does not qualify as a marriage for purposes of applying for a spouse visa to the U.S.
- Common-law marriages may qualify as marriages for spouse visa purposes, depending on the laws of the country where the common-law marriage occurs.
- In cases of polygamy, only the first marriage may qualify for purposes of a applying for a spouse visa.
- Currently, same-sex marriages are not recognized by immigration law for the purpose of obtaining a spouse visa to the U.S.
Filing the Spouse Visa Petition
The first step toward obtaining a spouse visa is for the U.S. spouse to file a Petition for Alien Relative, Form I-130, with the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) for your spouse (husband or wife) to immigrate to the United States.
In certain circumstances, a U.S. citizen living abroad can file an immigrant spouse visa petition outside of the United States.
U.S. Sponsor Minimum Age Requirement
There is no minimum age for a U.S. sponsor (petitioner) to file a petition for a spouse. However, the sponsor must be at least 18 years of age and have a residence (domicile) in the U.S. before you can sign the Affidavit of Support (Form I-864 or I-864EZ). This form is required for an immigrant spouse visa for a spouse and other relatives of U.S. sponsors.
Is Residence in the U.S. Required for the U.S. Sponsor?
Yes. As a U.S. sponsor/petitioner, you must maintain your principal residence (also called domicile) in the U.S., which is where you plan to live for the foreseeable future. Living in the U.S. is required for a U.S. sponsor to file the Affidavit of Support, with few exceptions.
If You Were an LPR and Are Now a U.S. Citizen: Upgrading a Petition
If you filed a spouse visa petition for your spouse when you were a lawful permanent resident (LPR), and you are now a U.S. citizen, you must upgrade the petition from family second preference (F2) to immediate relative (IR). You can do this by sending proof of your U.S. citizenship to the National Visa Center (NVC). You should send:
- A copy of the bio data page of your U.S. passport; or
- A copy of your certificate of naturalization
Important Notice: If you are now a U.S. citizen, you must file separate immigrant visa petitions for each of your children. If you upgrade a family second preference (F2) petition for your spouse and you did not file separate petitions for your children when you were a lawful permanent resident (LPR), you must do so now. A child does not receive derivative status in an immediate relative (IR) petition. This is different from the family second preference (F2) petition where a child is included in his/her parent’s F2 petition. A child is not included as a derivative in his/her parent’s IR petition.
Children born abroad after you became a U.S. citizen may qualify for U.S. citizenship. They should apply for U.S. passports. The consular officer will determine whether your child is a U.S. citizen and can have a passport. If the consular officer determines your child is not U.S. citizen, the child must apply for an immigrant visa before he/she may immigrate to the United States.
Next Steps – Fees, Affidavit of Support, and Spouse Visa Application
After the USCIS approves the spouse visa petition, it is sent to the National Visa Center (NVC). Once received, the NVC will assign a case number for the spouse visa petition and send the Choice of Address and Agent form to the applicant, if an attorney or agent will be used. (NOTE: If you already have an attorney, the NVC will not send you this form.) NVC will begin pre-processing the applicant’s case by providing the applicant and petitioner with instructions to submit the appropriate fees. After the appropriate fees are paid, the NVC will request that the applicant submit the necessary immigrant spouse visa documents, including the Affidavit of Support, application forms, civil documents, and more.
Government Fees
During the spouse visa petition and application process, government fees are charged for the following services:
- Filing an immigrant Petition for Alien Relative, Form I-130 (currently $420, charged by the USCIS);
- Processing an immigrant spouse visa application, Form DS-230 or DS-260 (currently $404, charged by the Department of State)
- Medical examination and required vaccinations (fees will vary depending on the provider)
- Other costs may include: translations; photocopying charges; fees for obtaining the documents you need for the immigrant spouse visa application (such as passport, police certificates, birth certificates, etc.); and expenses for travel to the U.S. embassy or consulate for your visa interview. Costs vary from country to country and case to case.
Note: Government fees are charged for each intending immigrant, regardless of age, and are non- refundable.
Fees should not be paid to the NVC or paid at the U.S. embassy or consulate where you have your spouse visa interview unless specifically requested. Applicants will be provided with instructions by the NVC on where and when to pay the appropriate fees. Do not send payments to the NVC’s address in Portsmouth, New Hampshire.
Required Documentation
In general, the following documents are required for spouse visa applications:
- Passport(s) valid for 60 days beyond the expiration date printed on your immigrant spouse visa
- Affidavit of Support (I-864, I-864A, I-864 EZ, or I-864W, as appropriate) signed by the U.S. petitioner and/or the U.S. sponsor.
- Application for Immigrant Visa and Alien Registration, Form DS-230, both Part I and Part II, or Online Immigrant Visa Application and Registration, Form DS-260 (NOTE: Form DS-260 is a new limited-use online application form. It is currently in limited use for immigrant visa applicants whose cases meet certain criteria.)
- Two (2) 2×2 photographs.
- Civil Documents for the applicant. The consular officer may ask for more information during your spouse visa interview. If not already submitted to the NVC, bring clear, legible photocopies of civil documents, such as birth and marriage certificates, and any required translations to your immigrant spouse visa interview. Original documents and translations can then be returned to you.
- Completed Medical Examination Forms – These are provided by the panel physician after you have completed your medical examination and vaccinations (see below).
Spouse Visa Interview
Once the NVC determines the file is complete with all the required documents, they will schedule the applicant’s interview appointment. The NVC will send the file, containing the applicant’s spouse visa petition and the documents listed above, to the U.S. embassy or consulate where the applicant will be interviewed for a visa. The applicant, petitioner, attorney, and third-party agent, if applicable, will receive appointment emails, or letters (if no email address if available), containing the date and time of the applicant’s visa interview along with instructions, including guidance for obtaining a medical examination.
Applicants should bring their valid passports, as well as any other documentation above not already provided to NVC, to their visa interviews. During the interview process, ink-free, digital fingerprint scans will be taken. Generally, applicants will receive their original civil documents and original translations back at the time of their spouse visa interview.
Medical Examination and Vaccinations
Important Notice: In preparing for your interview, you will need to schedule and complete your medical examination and any required vaccinations before your visa interview. Before an immigrant spouse visa can be issued, every applicant, regardless of age, must undergo a medical examination which must be performed by an Department of State authorized panel physician. Spouse Visa applicants are provided instructions by NVC regarding medical examinations, including information on authorized panel physicians in their country.
Vaccination Requirements
U.S. immigration law requires immigrant spouse visa applicants to obtain certain vaccinations prior to the issuance of immigrant visas.
What Is Conditional Permanent Residence?
If you have been married for less than two years when your foreign citizen spouse enters the United States on an immigrant spouse visa, his or her permanent resident status is considered “conditional.” The immigrant spouse visa is a conditional resident (CR) visa, not an immediate relative (IR) visa.
You and your spouse must apply together to the USCIS to remove the conditional residence status within the ninety days before the two-year anniversary of your spouse’s admission into the United States on his or her immigrant spouse visa. The two-year anniversary date of admission is the date of expiration on your spouse’s alien registration card (green card).
How Long Does The Process Take?
The length of time varies from case to case and cannot be predicted for individual cases with any accuracy. Some cases are delayed because applicants do not follow instructions carefully. Sometimes the U.S. sponsor, or petitioner, cannot meet Affidavit of Support requirements. Some spouse visa applications require further administrative processing, which takes additional time after the spouse visa applicant’s interview by a consular officer.
Visa Ineligibilities
Certain conditions and activities may make an spouse visa applicant ineligible for a visa. Examples of these ineligibilities include: drug trafficking; overstaying a previous visa; and submitting fraudulent documents. If you are ineligible for a visa, you will be informed by the consular officer and advised whether there is a waiver of the ineligibility available to you and what the waiver process is.
Misrepresentation or Fraud
Attempting to obtain a visa by the willful misrepresentation of a material fact or fraud may result in you becoming permanently ineligible to receive a U.S. spouse visa or enter the United States.
When You Have Your Immigrant Spouse Visa – What You Should Know
If you are issued an immigrant spouse visa, the consular officer will give you your passport containing the immigrant spouse visa and a sealed packet containing the documents which you provided. It is important that you do not open the sealed packet. Only the U.S. immigration official should open this packet when you enter the United States. You are required to enter the U.S. before the expiration date printed on your visa. When traveling, the primary (or principal) applicant must enter the U.S. before or at the same time as family members holding visas.
Entering the U.S. – Port of Entry
A spouse visa allows a foreign citizen to travel to the U.S. port of entry and request permission to enter the U.S. Applicants should be aware that a spouse visa does not guarantee entry into the U.S. The DHS, U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the U.S. Travelers should review important information about admissions and entry requirements on the CBP website under Travel.
How to Apply for a Social Security Number Card
If you elected on your immigrant spouse visa application form to receive your Social Security Number Card upon admission to the United States as an immigrant, your card will be sent via mail to the U.S. address you designated on your application form, and should arrive approximately six weeks following your admission. If you did not elect to receive your Social Security Number Card automatically, you will have to apply to be issued a card following your arrival in the United States. To learn about applying for a Social Security Number Card, visit the U.S. Social Security Administration website.
Additional Information
Immigrant spouse visa applicants should not make any final travel arrangements, dispose of property, or give up jobs until and unless visas are issued. Some spouse visa applications require further administrative processing, which takes additional time after the spouse visa applicant’s interview by a consular officer. An immigrant spouse visa is generally valid for six months from the issuance date.
Currently, there are no provisions available under U.S. visa law that would allow a foreign national to qualify for immigration to the United States based on retirement to the United States. Immigration to the U.S. is primarily family, employment, or investment.
Are children required to have chest x-rays or blood tests?
Chest X-ray and blood tests are not usually required for children under the age of fifteen.
What if the applicant is mentally retarded or has a learning disability?
Applicants with mental retardation or learning disabilities must present a report of their condition and any special educational or supervision requirements.
What is the legal basis for requesting medical information for visa applicants?
Medical eligibility is a requirement of INA Sections 212(a) and 221(d). Failure to provide required information may cause delay or denial of your immigrant visa. If a immigrant spouse visa is not issued, all medical eligibility forms will be treated as confidential under INA Section 222(f).
What should the applicant expect at the medical examination?
The applicant must show his/her passport (or other photo identification) and appointment letter to the doctor during the medical examination.
The medical examination will include a medical history review, physical examination, chest X-ray and blood tests for syphilis.
The physical examination will at least include examination of the eyes, ears, nose and throat, extremities, heart, lungs, abdomen, lymph nodes, skin and external genitalia.
In some countries, the panel physician will send the results to the U.S. Embassy/Consulate directly. In other countries, the panel physician will give the applicant his/her medical exam results in a sealed envelope and an x-ray which the applicant must bring to the interview.
Note: The medical examination is not a complete physical examination. Its purpose is to screen for certain medical conditions relevant to U.S. immigration law. The panel physician is not required to examine you for any conditions except those the U.S. Public Health Service specifies for U.S. immigration purposes, nor is the physician required to provide you with diagnosis or treatment even though other matters related to your health might be discovered. This examination is not a substitute for a full physical examination, consultation, diagnosis, or treatment by your primary health care provider.
Medical Conditions/History
What if the applicant had a positive tuberculosis skin test?
Applicants with a previous positive skin test for tuberculosis should provide a certificate from the attending doctor (giving the circumstances of the positive test result, and indicating any treatment prescribed, and its duration) to the panel physician. If the applicant has ever been diagnosed with tuberculosis, the applicant must present a written certification, signed by the attending doctor, proving that the applicant was adequately treated. The certificate must include dates and types of medications taken. Applicants who ever had an abnormal chest X-ray should borrow the last X-ray films taken and bring them to the panel physician. The actual films, not the typed reports, may be required to compare with the X-rays that will be taken at the medical examination.
What if the applicant had syphilis?
Applicants who have had syphilis must present the panel doctor with a written certificate, signed by a doctor or public health official, proving that the applicant was adequately treated. Applicants who ever had a positive VDRL or other blood test for syphilis, and were not treated must give a written explanation signed by the applicant’s doctor to the panel physician.
If the applicant is pregnant must she have a chest x-ray?
The U.S. Centers for Disease Control and Prevention (CDC) requires that women who are pregnant and required to have a medical examination in connection with the issuance of a visa, and are examined in a country currently using the 2007 TB Technical Instructions must have a chest x-ray examination conducted. Pregnant women will have to provide the panel physician with consent to conduct the chest x-ray. For the health of the applicant and her unborn child, CDC instructs panel physicians and laboratories to provide abdominal and pelvic protection with double layer, wrap-around lead shields when they receive the chest radiographs. This requirement does not apply to countries using the 1991 TB Technical Instructions which allow for an exemption of the chest x-ray requirement for pregnant women. Pregnant applicants who do not wish to have the X-ray will be granted a temporary exemption when they provide written certification of pregnancy signed by their personal physician or obstetrician.
What if the applicant has a history of harmful or violent behavior?
Applicants with any history of harmful or violent behavior resulting in injury to people or animals, or harm to inanimate objects must provide information that will allow the panel physician to determine if the behavior was related to a psychiatric or medical problem, or to drug or alcohol use. Harmful behavior includes attempted suicide or self-harm, no matter how minor in nature.
What if the applicant has been treated or hospitalized for psychiatric or mental illness, or alcohol or drug abuse?
Applicants treated or hospitalized for psychiatric or mental illness or alcohol or drug abuse must present written certification including the diagnosis, duration of treatment rendered, and prognosis.
What if the applicant is being treated for a chronic medical condition or is taking medication on a regular basis?
Applicants being treated for chronic medical conditions, or those taking medications on a regular basis, should be familiar with the medical conditions being treated, and the names of the medications they are taking. Applicants unsure of their diagnoses must present a certificate describing the condition(s), the current treatment, and prognosis with a list of prescribed medications.
Can the applicant have a medical examination if she is having her menstrual period?
Yes, the applicant may have the examination even if she is having her menstrual period.
Physicians
Can the applicant have his/her physician perform the medical examination?
The medical examination must be performed by an approved panel physician.
Can the medical examination take place in the United States if the applicant is pursuing a visa application abroad while physically present in the United States?
Visa medical examinations may not be conducted in the United States. An alien pursuing a visa application abroad while physically present in the United States must have the medical examination conducted by a panel physician approved by the visa issuing U.S. Embassy/Consulate.
Vaccinations
What vaccinations are required?
The following vaccinations are required for immigration purposes:
- Hepatitis A
- Hepatitis B
- Influenza
- Influenza type b (Hib)
- Measles
- Meningococcal
- Mumps
- Penumococcal
- Pertussis
- Polio
- Rotavirus
- Rubella
- Tetanus and diphtheria toxoids
- Varicella
For the Panel Physician Technical Instructions relating to the vaccination requirements, please visit the Centers for Disease Control and Prevention website.
What do I do if the applicant does not have a vaccination record?
The panel physician will work with the applicant to determine which vaccinations the applicant may need to meet vaccination requirements.
What if there is a medical reason for the applicant to not receive a listed vaccination?
Certain waivers of the vaccination requirement are available upon the recommendation of the panel physician.
A U.S. citizen or permanent resident petitioner must have a U.S. domicile before the U.S. consulate will issue a spouse visa to the sponsored spouse. If the petitioner has not maintained a U.S. domicile, then he or she must take steps to establish a U.S. domicile prior to issuance of a spouse visa to the foreign national spouse. Below are several steps that the petitioner may need to take to establish U.S. domicile in anticipation of sponsorship of their foreign national spouse:
- Purchase or lease of a home in the United States.
- Obtaining a U.S. based job or starting a U.S. based business;
- Enrolling children in U.S. public or private schools;
- Relinquishment of non-U.S. residence.
- Other evidence of a U.S. residence
If the sponsor establishes U.S. domicile, it is not necessary for the sponsor to go to the United States before the sponsored family members. However, the sponsor must return to the United States to live before the sponsored immigrant may enter the United States. The sponsored immigrant must enter the U.S. with or after the sponsor.
U.S. service members seeking to obtain a spouse visa for their foreign national spouse will often have available military-specific evidence that helps to establish the bona fides of the spousal relationship. Such documentation is often viewed by the USCIS as strong evidence of the the bona fides of the spousal relationship and, where available, should be included in the spouse visa petition and immigrant visa application. Such military-specific documentation may include but is not limited to the following:
- Service member’s Form DD-1172, “Application for Uniformed Services Identification Card DEERS Enrollment,” naming one’s foreign national spouse as a dependent;
- Foreign national spouse dependent’s Military Identification and Privilege Card;
- Form DD-1278, “Certificate of Overseas Assignment to Support Application to File Petition for Naturalization”;
- Copy of Permanent Change of Station (PCS) orders issued to the service member for permanent tour of duty overseas that specifically name the foreign national spouse;
- Designation of the foreign national spouse as a beneficiary on the military service members’ Group Life Insurance (SGLI) policy;
- Documentation showing that the foreign national spouse resides in military base/post housing;
- Service member’s living will and/or last will and testament listing foreign national spouse as beneficiary.
Expedite Criteria for I-130 Spouse Visa Petitions
For spouse visa petitions to be filed or currently pending with the U.S. Citizenship & Immigration Service, the service will review all requests to expedite a particular case on an individual basis. The USCIS will grant expedite requests only at the discretion of the USCIS Director. The requestor must demonstrate that one of the enumerated expedite criteria apply to their case. The burden of proof is on the person making the request. In making your expedite request, you must establish that one or more of the following enumerated expedite criteria apply to your spouse visa petition:
- Severe financial loss to a business or an individual;
- Extreme and emergent situation;
- Humanitarian emergency;
- Cultural and/or social interests of the United States and the requestor is a recognized nonprofit organization;
- National security or national interest and the requestor is an official U.S. government entitiy (Note: Request must state that delay will be detrimental to the U.S. Government);
- Mistake or error on the part of the USCIS;
- Matter that is in the compelling interest of the United States.
If you have already filed your I-130 spouse visa petition:
If your spouse visa petition is currently pending with the USCIS, you can submit your expedite request by contacting the USCIS directly at 1-800-375-5283. They will forward your expedite request to the service center or field office with jurisdiction over your spouse visa petition. You may also submit an expedite request by scheduling an InfoPass appointment with your local USCIS field office, or by writing a letter to your local USCIS office, or the USCIS service center with jurisdiction over your case.
Should I use my married name for I-130 spouse visa petition?
If you intend to take on your U.S. citizen spouse’s last name and use your married name once you become a U.S. lawful permanent resident, you may list your married name as your last name on the I-130 spouse visa petition. However, you must also be sure to change your name on your passport prior to your immigrant spouse visa interview. The U.S. consulate will issue your spouse visa in the name that is shown on your current passport. and cannot issue a spouse visa in your married name if that is not the name in your passport.
Cite as 24 I&N Dec. 479 (BIA 2008) Interim Decision #3606
Matter of Francis KODWO, Beneficiary of a visa petitionfiled by Idelle Monique Hamilton, Petitioner
File A99 245 589 – Fairfax, Virginia
Decided March 26, 2008
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
While a court order remains the preferred method of establishing the dissolution of a customary tribal marriage under Ghanaian law, affidavits executed by the heads of household, i.e., the fathers of the couple, that meet specified evidentiary requirements may be sufficient to establish a divorce for immigration purposes. Matter of Kumah,19 I&N Dec. 290 (BIA 1985), modified.
FOR PETITIONER: Charles Okyere, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jason Raphael, AssociateRegional Counsel
BEFORE: Board Panel: PAULEY, Board Member; MANN and GUENDELSBERGER, Temporary Board Members.
MANN, Temporary Board Member:
In a decision dated May 15, 2007, the Acting District Director (“Director”)of the U.S. Citizenship and Immigration Services (“USCIS”) denied the visapetition filed by the petitioner on behalf of the beneficiary to accord himimmediate relative status as the spouse of a United States citizen under section201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) (2000).The Director found that the petitioner failed to demonstrate that her marriageto the beneficiary was valid, concluding that the beneficiary was not eligibleto legally marry at the time of their marriage. The petitioner has appealedfrom that decision. The appeal will be sustained and the record will beremanded for further proceedings.
The record reflects that the petitioner and the beneficiary were married on November 22, 2004, in the State of Virginia. On January 21, 2005, the petitioner filed a Petition for Alien Relative (Form I-130) on the beneficiary’s behalf. In order to establish eligibility for a spousal visa petition, the petitionermust prove, by a preponderance of the evidence, that any previous marriagesof both the petitioner and the beneficiary have been legally terminated.
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8 C.F.R. § 204.2(a)(2) (2007). The beneficiary, a Ghanaian citizen, waspreviously married in Ghana according to local tribal custom. As evidence of the termination of the beneficiary’s prior marriage, the petitioner submitted a statutory declaration before the Superior Court of Judicature, of the High Courtof Justice in Accra, executed on October 29, 2004, by the fathers of both thebride and the groom. The fathers declared that the customary marriagecontracted between the couple on June 20, 1998, was dissolved on January 23,2004, in the presence of elders of both parties.
On May 16, 2006, the USCIS issued a Notice of Intent to Deny the visapetition based on the petitioner’s failure to provide acceptable evidence of thedissolution of the beneficiary’s prior customary marriage. The notice stated the following:
Proper documentation of the dissolution of a customary marriage is a decree, issued by a high court, circuit court or district court under the Matrimonial Causes Act of 1971 (Act 367), Section 41(2), stating that the marriage in question was dissolved in accordance with customary law. Affidavits or “statutory declarations” attesting to a divorce under customary law, even when duly sworn, do not constitute proper documentation of the dissolution of a Ghanaian customary marriage. See Matter of Kumah, 19 I&N Dec. 290 (BIA 1985).
It further noted that the divorce decree submitted by the petitioner from the High Court of Justice in Accra, Ghana, was “under the Statutory DeclarationAct [No. 389 of 1971] and is therefore not acceptable as evidence that [the beneficiary’s] former marriage had been terminated when [the marriage of the petitioner and the beneficiary] was contracted.”
In response to the notice, the petitioner submitted a new divorce decree issued by the District Magistrate Court in Koforidua, Ghana, under section41(2) of the Matrimonial Causes Act of 1971 (Acts 367), indicating that the marriage was dissolved based on the joint affidavit submitted by the fathers of the beneficiary and his former spouse. The decree, which was executed on June 26, 2006, confirmed that the marriage had been dissolved on January 23, 2004, at Kumasi “and since that time any of the parties had the liberty to re-marry anybody anywhere and at anytime in the world and that such customary marriage and divorce are recognized under the laws of Ghana.”
In her decision, the Director considered the new divorce decree but concluded that the attempt in the new decree to backdate the divorce to January 23, 2004, would not be recognized. Therefore, the Director determined that since the valid date of the divorce was June 26, 2006, the beneficiary was not legally free to marry the petitioner on November 22, 2004.
On appeal, the petitioner contends that the Board recognizes customaryGhanaian divorces, even when a court decree is unavailable, and that statutorydeclarations of the dissolution of a customary marriage, and a decree from the district magistrate court confirming that dissolution, should be sufficient proof
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of the termination of the beneficiary’s prior marriage. In addition, the petitioner states that the decree she submitted does not attempt to backdate the divorce but rather confirms the nonjudicial divorce of January 23, 2004, in conformity with the rulings in Matter of Akinola, 15 I&N Dec. 359 (BIA1975), and Matter of DaBaase, 16 I&N Dec. 39 (BIA 1976).
In Matter of Kumah, supra, we modified our previous holdings in Matter of Akinola and Matter of DaBaase and concluded that a Ghanaian court decree that either grants or confirms a Ghanaian customary divorce is an essential element of proof in substantiating a claimed customary divorce under the immigration laws of the United States. We relied on changes in the Foreign Affairs Manual, which instructed that
the preferred documentation for the dissolution of a customary marriage is an application by the parties concerned to the appropriate Ghanaian court under the Matrimonial Causes Act of 1971(Act 367), section 41(2), for a decree of divorce, and that the affidavits attesting to a divorce under customary law provided by the heads of the respective families are of minimal reliability. Matter of Kumah, supra, at 294.
In this case, counsel for the USCIS takes the position on appeal that Matter of Kumah, supra, was superseded by amendments to statutory Ghanaiandivorce law and that the law no longer requires Ghanaians to register divorceaffidavits with a court. As evidence of the new Ghanaian law, USCIS counsel submitted a letter from a Foreign Law Specialist of the Library of Congress.1 The letter explains the following in regard to Ghanaian law:
The Ghanaian customary marriage and divorce registration law consists of the Customary Marriage and Divorce (Registration) Law of 1985 (P.N.D.C.L.112) andthe Customary Marriage and Divorce (Registration) (Amendment) Law of 1991 (P.N.D.C.L. 263).
One important change that the 1991 amendment introduced was making registration of customary marriage and divorce, which was mandatory under the 1985 law, optional.
The Customary Marriage and Divorce Law of 1985 required Ghanaians toregister customary marriages. The 1991 amendment, however, made it no
The letter from the Library of Congress included copies of several pages from a book entitled Family Law in Ghana, which included an analysis highlighting the changes effectuated by the 1991 amendments. William E. Offei, Family Law in Ghana 35-42 (1998).
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longer compulsory to register a marriage contracted under customary law. Counsel for the USCIS therefore asserts as follows:
The 1991 amendment . . . does not require Ghanaians to register the divorce affidavits with the court in order for the divorce to be valid. The amendment allows for the heads of the families (fathers of the husband and wife) to declare the divorce final following the customary tribal divorce proceeding. The declaration must confirm the date, place, and time of the divorce, such as customary tribal. See UK Border & Immigration Agency § 2: General Information Section, Section 30.42 on Divorce, subsection on Ghanaian divorce (3.3.2).
In visa petition proceedings, the petitioner bears the burden of establishingeligibility for the immigration benefit sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). When the petitioner relies on a foreign law to establisheligibility for the beneficiary, the application of the foreign law is a questionof fact, which must be proved by the petitioner. Matter of Fakalata, 18 I&N Dec. 213 (BIA 1982); Matter of Annang, 14 I&N Dec. 502 (BIA 1973). We note that we have relied on expert opinions by foreign law specialists from the Library of Congress to establish foreign law when appropriate. Matter of Rowe, 23 I&N Dec. 962 (BIA 2006); Matter of Khatoon, 19 I&N Dec. 153 (BIA 1984); Matter of Dhillon, 16 I&N Dec. 373 (BIA 1977).
In this case, it is the USCIS that presents evidence of Ghanaian divorce law,which was provided by the Library of Congress. The petitioner does notdispute this evidence on appeal. To the contrary, the petitioner’s arguments in the Notice of Appeal accord with the position taken by the USCIS.
Based on the arguments of the parties and the evidence presented by the USCIS, we agree that the holding in Matter of Kumah, supra, has been superseded by amendments to Ghanaian law. Matter of Kumah is accordinglymodified to hold that affidavits executed by the heads of household, i.e., thefathers of the husband and wife, may be sufficient under Ghanaian law to establish the dissolution of a customary tribal marriage. We note, however, that in accordance with the Foreign Affairs Manual, the desirable properdocumentation continues to be a court decree, both because customary divorce is more difficult to prove and because polygamous marriage is permissible under the customary law of some groups, but not under civil law.
In Matter of DaBaase, supra, we held that where a party seeks to prove thevalidity of a customary divorce, he or she must present evidence thatestablishes (1) the tribe to which he belongs, (2) the current customary divorce law of that tribe, and (3) the fact that the pertinent ceremonial procedures were followed. We also stated the following:
To establish the current customary law of his tribe, the party may present evidence derived from reported cases, legal treaties and commentaries, and depositions of legal scholars. The evidence could also consist of advisory opinions from those
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organizations traditionally recognized by the Ghanaian Government as possessing knowledge of customary law.
Id. at 40-41. Moreover, the parties must prove that the divorce was properly perfected. Affidavits should be specific and include the full names and birth dates of the parties; the date of the customary marriage; the date of, and grounds for, the dissolution of the marriage; the names, birth dates of, and custody agreement for any children born of the marriage; and a description of the tribal formalities that were observed, including the names of the tribal leaders, the name of the tribe, the place, the type of divorce, and any other relevant information.
The parties submitted a statutory declaration dated October 29, 2004, fromthe fathers of both the beneficiary and his first wife confirming the dissolution of the marriage on January 23, 2004. USCIS counsel asks us to consider the effective date of the divorce to be the date confirmed by the fathers in theiraffidavit, rather than the later date of the execution of the affidavit. We agreethat January 23, 2004, is the proper date of the divorce and will thereforesustain the petitioner’s appeal.
Finally, the USCIS requests a remand in order to determine the validity of the fathers’ affidavit and to check its authenticity. We find that a remand is appropriate and will grant the request.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded for further proceedingsconsistent with the foregoing opinion and for the entry of a new decision.
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Effective August 15, 2011, petitioners residing overseas will no longer be able to routinely file Forms I-130, Petitions for Alien Relative, with U.S. Embassies and Consulates except in locations where U.S. Citizenship and Immigration Services (USCIS) has a public counter presence within the Embassy or Consulate. Petitioners residing overseas in countries where USCIS does not have a public counter presence will be required, starting August 15, 2011, to file their Forms I-130 by mail with the USCIS Chicago lockbox. U.S. Embassies and Consulates that do not have a USCIS presence will only be able to accept and process Forms I-130 in exceptional circumstances, as outlined below.
Forms I-130 that were properly filed at an Embassy or Consulate overseas where USCIS does not have a presence before August 15, 2011 will not be affected by this change.
Filing Instructions beginning August 15, 2011:
Beginning August 15, 2011, petitioners residing overseas who wish to file a Form I-130, Petition for Alien Relative, may do so as follows:
- If the petitioner resides in a country in which USCIS has a public counter presence, the Form I-130 may be filed directly with the USCIS field office (see instructions below) or through the USCIS Chicago Lockbox at one of the below addresses.
- If the petitioner resides in a country where USCIS does not have a public counter presence, the Form I-130 must be filed with the USCIS Chicago Lockbox at one of the addresses posted on the USCIS website, unless the petitioner requests and is granted an exception based on one of the criteria described below.
For additional information about how to file a Form I-130 with the USCIS Chicago Lockbox, please see the USCIS website at www.uscis.gov or contact USCIS by phone at 1-800-375-5283.
Filing at USCIS Overseas Field Offices:
From August 15, 2011, petitioners residing in a country where USCIS has a filed office, with a public counter, may choose to file the Form I-130 either through the Chicago Lockbox or at the USCIS field office. Petitioners should contact the USCIS field office with any questions regarding the filing of petitions. For more information on where USCIS has overseas field offices and contact information, please visit http://www.uscis.gov/international.
Exeptional Filing at U.S. Embassies or Consulates without a USCIS Field Office:
Beginning August 15, 2011, petitioners who do not reside in a country with a USCIS field office, but who believe that their situation merits an exception, may request an exception to allow the Consular Section at the Embassy or Consulate to accept the filing. Each request for an exception will be evaluated individually.
A petitioner seeking to file a Form I-130 at an Embassy or Consulate where USCIS does not have a presence should contact the Consular Section to request consideration of the request for exception and explain the circumstances in detail. The Consular Section will then relay the request for an exception to the USCIS field office with jurisdiction over the Embassy or Consulate. The determination of whether the case presents exceptional circumstances that warrant an exception to the general filing process will be made by USCIS. USCIS will be publishing guidance on the circumstances that may qualify as exceptional on their website.
The determination of the status of a “spouse” in a first-cousin or an uncle-niece marriage involves three variables:
(1) Laws of the place where the marriage took place;
(2) Laws of the State of proposed residence in the United States; and
(3) Facts that vary in each individual case.
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