• Never provide incomplete, inaccurate, or untruthful information in filling out the form fields and answering the questions on your spouse visa petition and application forms.
• Never overlook the required and supporting documents at the time of filing your spouse visa petition and application. Do not file unless you have properly prepared and included all required and supporting paperwork. If necessary, hire a reputable and expert spouse visa service to prepare and file your paperwork on your behalf.
• Never fail to check that you are using the most current and up-to-date edition of the required government forms;
• Never submit a marriage visa petition to the USCIS without reviewing your forms and verifying that all required fields are completed properly and accurately. If necessary, retain the expert services of spouse visa service to get it right the first time.
• Never file your spouse visa petition without including the most currently published government fees. Consult with the visa experts at a reputable spouse visa service if you have any questions.
• Never allow your foreign national spouse to attend her spouse visa interview without proper preparation.
• Never rely on the services of so-called immigration experts. Many online immigration service providers are unlicensed, unregulated, and illegal. Use such immigration services at your own risk. The wrong help can hurt.

 To qualify for a spouse visa, you must meet the following requirements:

•  You must be a legally married;
• You must intend to reside permanently in the United States;
• The U.S. citizen spouse must be 18 years of age and maintain their primary domicile in the U.S., or intend to establish their primary domicile in the U.S.

 Definition of a Spouse Under U.S. Immigration Law

A “spouse”, as defined under U.S. immigration law, is a wife or husband who is legally married.

• Simply living together with your partner will not qualify as a valid marriage for purposes of a spouse visa to the U.S.;
• Foreign common-law marriages may be valid marriages for spouse visa purposes, so long as the marriage is recognized as valid in the foreign jurisdiction;
• Polygamous marriages are generally not recognized as valid marriages;
• A same-sex marriage, while recognized in several U.S. states, is not currently recognized under U.S. law as valid for immigration purposes.

Filing the Spouse Visa Petition

The initial step toward obtaining a spouse visa is for the U.S. spouse to file an immigrant spouse petition with the USCIS in the United States.

U.S. citizens residing abroad may qualify to file their spouse visa petition in their country of residence, if the USCIS has an international field office in that country, and the U.S. citizen spouse has been resident in that country for six months or more.

Minimum Age for the Affidavit of Support

There is not a minimum age requirement for the U.S. citizen spouse to qualify as a petitioner for purposes of the initial spouse visa petition.  However, for purposes of the affidavit of support, the age requirement is 18 and the sponsor must be domiciled in the United States. This affidavit of financial support is a requirement for the immigrant spouse visa.

Is a sponsor required to live in the United States?

Yes. For purposes of the sponsor’s affidavit of financial support, to be eligible, each sponsor must maintain their primary domicile within the United States, or plan to establish their primary domicile within the United States on or before the foreign national spouse immigrates.

Upgrading a Spouse Visa Petition

A spouse visa petitioner who naturalizes or otherwise obtains U.S. citizenship may upgrade the spouse visa beneficiary’s preference category by contacting the Department of State’s National Visa Center (NVC) with proof of their newly obtained U.S. citizenship status. A separate petition may be required for any derivative children of the beneficiary if the preference category is upgraded to the immediate relative category (IR).

National Visa Center Processing

After the spouse visa petition is approved, the USCIS will forward the approved petition to the NVC. The NVC initiates the immigrant visa processing stage of the case and assigns each case unique case number. The NVC sends a fee invoice to both the spouse visa applicant and the petitioner along with instructions for submitting the proper fees. Once the immigrant visa and affidavit of support invoices are paid, the applicant and petitioner must submit all required forms and documents to the NVC, including the Immigrant Visa Application, affidavit of financial support, required civil documents, supporting financial documents, and any other required documents.

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.

On Jan. 6, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of intent in the Federal Register outlining its plan to reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members go through the process of becoming legal immigrants to the United States. Currently, spouses and sons and daughters of U.S. citizens who have accrued a certain period of unlawful presence in the United States, and have to leave the country as part of the legal immigration process, are barred from returning to their families for as long as 3 or 10 years. They can receive a waiver to allow them to return to their families by showing that their U.S. citizen family member would face extreme hardship as a result of the separation. This proposal would streamline the processing of these individuals’ waiver applications based on unlawful presence; USCIS proposes to process their waiver applications in the United States before any American family faces separation. The process would only apply to immigrants who are eligible for a visa.

Under the proposed process, the spouses and children of U.S. citizens who are eligible for a visa to immigrate legally to the United States, but who need a waiver of inadmissibility for unlawful presence in order to obtain that visa expeditiously, would apply for a provisional waiver before leaving the United States to have their immigrant visa application processed at a U.S. embassy or consulate abroad (as they must pursuant to law). The notice limits the streamlined process to those individuals who are inadmissible based solely on having accrued a period of unlawful presence and – pursuant to statutory requirements – who can demonstrate extreme hardship to their U.S. citizen relative. All individuals affected by this streamlined process would need to meet all legal requirements for admission to the United States, including the requirement that they process their visa application at a U.S. consulate abroad.

With the change outlined in the notice, individuals who currently qualify for a waiver of inadmissibility under the existing eligibility standards, and who can demonstrate that separation from their U.S. citizen spouse or parent would cause extreme hardship to that relative, would be allowed to apply for a waiver while still in the U.S.

By allowing these individuals to apply for waivers in the U.S. and making a provisional determination of waiver eligibility before the individuals must depart the country for visa processing, USCIS would provide a more predictable and transparent process and improved processing times, minimizing the separation of U.S. citizens from their families. The change would also streamline the process for both USCIS and the Department of State (DOS) when handling requests for these waivers. As a result, this change would encourage individuals who may be eligible for a waiver of inadmissibility to seek lawful readmission to the United States by limiting the amount of time they would need to spend away from their U.S. citizen spouse or parent.

Following publication of this notice, USCIS will undertake further analysis and collaborate with the Department of State to develop the streamlined process in greater detail. USCIS plans to publish a notice of proposed rulemaking in the coming months that will provide additional details and allow the opportunity for public comment. A final rule will then be published to implement the streamlined process. The rule will not modify the underlying standard for assessing whether denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent of such individuals. It would modify only the process by which these applications may be filed and accepted by USCIS for processing.

QUESTIONS

Q. Why is USCIS proposing the change?

A. This proposed change will reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members are going through the process of obtaining visas to become legal immigrants to the United States. Under current policy, individuals who wish to apply for a waiver of inadmissibility for unlawful presence must leave the U.S. and apply for a waiver at a U.S. consular office outside the United States. This process can be lengthy and discourages individuals who may be eligible for this waiver from applying, which delays their ability to lawfully reenter the U.S. The proposed change would reduce the amount of time that U.S. citizens would be separated from their spouses and children while the process to obtain a visa to immigrate takes place. This reflects the Administration’s strong commitment to efficiency in the administration of immigration law and facilitation of legal immigration.

Q. How is the proposed process different from the current process?

A. Currently, U.S. citizens who petition for their spouses and children to become legal immigrants to the United States must petition for a visa, and in some circumstances, if the spouse or child has accrued more than 180 days of unlawful presence in the U.S., that spouse or child must also petition for a waiver of a ground of inadmissibility in order to have his or her visa application processed. The proposed process does not change the requirements for obtaining a visa or the standards for obtaining a waiver. Nor does it change the requirement that the spouse or child of a U.S. citizen ultimately depart the United States to have his or her visa application processed at a consulate abroad. The only change contemplated by this proposal is that the spouse or child would be able to apply for a waiver with USCIS in the U.S. and receive a provisional decision on that waiver before departing the U.S. for consular processing of their immigrant visa applications. Currently, applicants can only file for a waiver after having been determined inadmissible by the U.S. consular officer and must wait abroad for a decision, which significantly adds to the processing time for their case. The proposal limits the extent to which the process forces the lengthy separation of families.

Q. When will this streamlined process be implemented?

A. The process will be implemented only after USCIS issues a final rule. In the coming months, USCIS plans to publish a notice of proposed rulemaking and will consider the comments received as part of that process before publishing a final rule. The current process will remain in place until a final rule goes into effect. No one should file an application with USCIS based on this proposed change in process. Any applications filed with USCIS based on this notice will be rejected and the application package returned to the applicant, including any fees until the final rule is issued and the change becomes effective.

Q. Who would be eligible for a provisional waiver?

A. Spouses and children of a U.S. citizen (1) who are seeking lawful permanent residence through an immigrant visa, (2) who are found inadmissible based on unlawful presence in the United States for more than 180 days, and (3) who meet the existing extreme hardship standard. Children under the age of 18 do not accrue unlawful presence and, as a result, are not required to obtain a waiver.

Q. Why is this proposed streamlined process limited to the spouses and children of U.S. citizens?

A. The policy objective of this proposed process change is to alleviate extreme hardship suffered by U.S. citizens. USCIS has thus identified immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change. In addition, their immigrant visas, which are not subject to annual limitations, are always immediately available. The focus on U.S. citizens and their immediate relatives is consistent with Congress’ prioritization in the immigration laws of family unification. This proposal meets the goals of both improving efficiency and reducing the length of time that American families are unnecessarily separated.

Q. How would the proposed process affect existing standards related to unlawful presence and the extreme hardship standard?

A.  It would not. The proposed process retains all of the legal standards and policies related to unlawful presence determinations and establishing extreme hardship. It would simply provide for the processing of these waivers in the United States instead of abroad.

Q. Will individuals who receive the waiver be able to adjust their status without leaving the United States?

A. No. The visa process itself is not changing. Individuals who receive a provisional waiver would still be required to depart the United States to apply for their immigrant visa.

Q. Is everyone who has accrued more than 180 days of unlawful presence subject to a three- or 10-year bar from entering the U.S.?

A. Yes, however, some aliens do not accrue unlawful presence if they fall into certain categories. For example, children under the age of 18 do not accrue unlawful presence for any period of time before their 18th birthday. Similarly, under current law, certain victims of crime and aliens with pending asylum applications do not accrue unlawful presence while their application is pending.

Q. If an individual already filed a Form I-601 from outside the U.S., would the proposed process affect him or her?

A. No. It would only affect individuals who have not yet filed a Form I-601 and who will file a waiver request after a final rule is published.

Q. Would USCIS collect biometrics as part of the streamlined process?

A. Yes. It is contemplated that applicants in the United States would be scheduled for biometrics collection at a USCIS Application Support Center.

Q. Why does USCIS refer to the waiver as “provisional?”

A. In the proposed process, USCIS would grant the provisional waiver before the applicant departs the U.S. for consular processing of their immigrant visa applications. The provisional waiver, however, would not take effect until the individual departs from the United States and triggers the covered ground of inadmissibility. Moreover, the provisional waiver covers only the unlawful presence grounds of inadmissibility. If the consular officer finds during the immigrant visa interview that the individual is subject to another ground of inadmissibility, the individual would need to file another waiver application with USCIS.

Q. What would happen at the consular interview?

A. If DOS found the individual otherwise eligible for the immigrant visa, the consular officer would then issue the visa, allowing the individual to immigrate to the U.S.

Q. What would happen to individuals who are not eligible to file a waiver under the proposed process?

A. They would continue to follow current agency processes for filing waiver requests after a determination of inadmissibility is made by a U.S. consular officer overseas.

Q. What would happen to individuals who are denied waivers under the proposed process?

A. They would be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA). For example, convicted criminals, public safety threats, and those suspected of fraud will receive NTAs.

Once closed, the K-3 spouse visa application process will no longer be available to the foreign-national spouse. The immigrant spouse visa process must be followed. The NVC will contact the U.S. citizen sponsor and foreign-citizen spouse, with instructions for processing the IR-1 (or CR-1) immigrant visa.

If the NVC receives the approved I-129F spouse petition before it receives the I-130 petition, the NVC will process the I-129F petition. The NVC will then send the I-129F spouse petition to the U.S. Embassy or Consulate in the country where the marriage took place. If the marriage took place in the United States, the NVC will send the petition to the U.S. Embassy or Consulate that issues visas in the foreign-citizen spouse’s country of nationality. If the marriage took place in a country that does not have a U.S. Embassy, or the Embassy or Consulate does not issue visas, the NVC will send the petition to the U.S. Embassy or Consulate that normally processes visas for citizens of that country. For example, if the marriage took place in Iran where the U.S. does not have an Embassy or Consulate, the petition would be sent to Turkey.

The U.S. Embassy or Consulate where  the foreign-national spouse will apply will provide specific instructions, including, where to go for the required medical examination.

Eligible children of K-3 spouse visa applicants may apply for K-4 visas. Separate applications must be submitted for each K visa applicant, and each K visa applicant must pay the visa application fee.

Eligible children of K-3 spouse visa applicants will receive K-4 visas. Both K-3 and the K-4 visas allow the recipient to remain in the U.S. while the immigrant visa petition is pending approval with the USCIS.

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.

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.

1. Carefully Review the letter and interview notice sent by the NVC noting the date, time, and location of your spouse visa interview.
2. Schedule and Attend a Medical Examination with a consulate-approved panel physician. A list of approved panel physicians is typically posted on the consulate’s website.
3. Confirm what Original Documents will be required for your interview and that they will be  available at the time of the spouse visa interview. Documents submitted to the NVC in advance will be forwarded to the U.S. consular officer conducting your spouse visa interview.
4. Obtain the required number of 2″ x 2″ passport-type photos. (Please take care to comply with the Dept. of State photo guidelines, posted at the travel.state.gov website.)
5. Review all documents and spouse visa interview instructions received from the NVC and available from your spouse visa attorney.

NOTE: For information regarding how to obtain a social security number, please visit the U.S. Social Security Administration’s website.

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• 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.

• 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.