Updated: January 21, 2020
Curse on all laws but
those which love has made!
Alexander Pope, Eloisa to Abelard
Purpose of this Article
The Internet is replete with descriptions, accurate to a greater or lesser extent, of the procedure for obtaining permanent resident (‘green card’) status for a non-US citizen spouse when the couple is living in the United States. However, there is not very much guidance available to Americans living in the United Kingdom as to how they can go about obtaining permission for their non-US citizen spouses to settle permanently in the United States.
We therefore offer the following brief overview of the process, with the caveat that although all cases must go through the following steps, complications may arise and additional procedures may become necessary due to the facts of a particular case—perhaps the alien spouse has a criminal conviction, or necessary documents prove difficult to find.
Note: Although this article discusses the specific situation of sponsoring spouses, these procedures are also generally applicable to petitions filed by US citizens living in the United Kingdom who seek to sponsor other ‘immediate relatives’ such as an unmarried child under the age of 21 or a parent (if the US citizen is aged 21 or older). A UK-resident widow or widower of a US citizen may also file a petition on his or her own behalf if he or she was married to the US citizen for at least two years, files the petition within two years of the date of death, was not legally separated at the time of death, and has not remarried.
Following the US Supreme Court decision of June 2013 in US v Windsor, the U.S. Citizenship and Immigration Services (USCIS) announced that it will ‘review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.’
Filing the Forms, Collecting the Papers
If the US citizen half of a married couple is residing in the United Kingdom, the process of obtaining a US immigrant visa for the alien spouse begins with the filing of the US citizen’s ‘Petition for Alien Relative’ (with associated biographical forms and documents) with the US Citizenship and Immigration Services office of the Department of Homeland Security at the US Embassy in London. This petition is often known by its government form number, the ‘I-130.’
When the I-130 has been approved the alien spouse will be advised by the Embassy’s Immigrant Visa Unit to file online his or her immigrant visa application (DS-260) and attend a medical examination at the Embassy’s appointed medical practitioner. The DS-260 requires a good deal of biographical information about the applicant, including all addresses where he or she has lived since the age of 16.
Applicants also need to collect a variety of ‘civil documents’ that must be presented to the Embassy on the day of the immigrant visa interview. For information as to which civil documents are required, please click here. Applicants must furnish police certificates to cover all periods of residence of 12 months or more since reaching the age of 16; the period of residence is just six months for the country of birth or of current residence. For some countries clearances are not available, and for others they must be obtained directly by the US Government rather than by the applicant.
Once applicants have filed their DS-260 and collected all the needed papers, taking into account the particulars of their case (for example, certified copies of birth certificates, marriage certificates, divorce decrees, police certificates, conviction records, deed polls evidencing name changes), they notify the Immigrant Visa Unit online that they have scheduled their medical examination and are ready for their Embassy interview.
The Immigrant Visa Unit will not allow an applicant to schedule an immigrant visa interview until the DS-260 has been filed online and the required medical examination with the Embassy’s designated provider has been scheduled. When booking the medical examination, the applicant should keep in mind that the Embassy must receive the medical results before the immigrant visa interview (which takes at least five working days) and that the immigrant visa, if issued, will be valid for only six months from the date of the medical exam.
The examination screens applicants for certain types of communicable diseases of public health significance, such as syphilis and tuberculosis. Applicants are also checked to ensure that they are immunised against certain types of diseases. Before scheduling their medical examinations, applicants should review the Embassy’s website which contains information about the immunisation requirements, which vary according to the age of the applicant, the necessary documents and the questionnaire that must be completed by applicants in advance of the examination.
Affidavit of Support
One of the documents that the applicant must take to the interview is the ‘Affidavit of Support’ (Form I-864) completed by the US citizen petitioner. In that Affidavit, required of all persons who sponsor family members for immigration to the United States, the US citizen spouse must demonstrate that he or she is able to support the alien spouse at an annual income of no less than 125 percent of the federal poverty level for a household of their size. The complex Affidavit of Support is the subject of two separate articles on our website: ‘A Beginner’s Guide to the Affidavit of Support’ and ‘I-864 Affidavits of Support: The Problem of ‘Domicile.’
On the day and at the time appointed for the interview the applicant takes to the Embassy the required documents, pays the immigrant visa application fee of $325 and is interviewed by a consular officer. Assuming that the Embassy has received the medical results from the designated doctors, and all has gone well with no last-minute surprises, the applicant will be told that he or she will be issued the immigrant visa. The applicant then surrenders his or her passport to the Embassy so that the visa can be issued. The passport with the visa and a packet of documents is returned (according to the courier arrangements made previously by the applicant) approximately 10 to 15 working days after the visa interview.
All immigrants issued immigrant visas on or after February 1, 2013 are subject to an additional Department of Homeland Security (DHS) fee of $220 to cover the agency’s costs incurred in creating the ‘green card’ that is proof of permanent resident status. Unless and until the fee is paid the DHS will not issue the card. The DHS suggests that the fee be paid online after the applicant receives his or her immigrant visa and before he or she enters the United States using that visa.
Becoming a Lawful Permanent Resident
The immigrant visa is valid for up to six months following the date of the required medical examination, during which time the immigrant must present the visa to an immigration officer at a US port of entry. At the port of entry the applicant will then be processed by the immigration authorities and will receive a stamp in his or her passport. When the processing is complete and the immigrant visa has been endorsed with the immigration authorities’ stamp the applicant becomes a lawful permanent resident. The endorsed visa serves as a temporary proof of that status; it is a temporary ‘green card.’ The permanent resident card, Form I-551, is then sent by post to the applicant’s designated address in the United States.
Shakespeare tells us that ‘The course of true love never did run smooth.’ Complex American immigration laws ensure that the course of emigration is likely to be similarly fraught.
We hope that this article has been a helpful overview of the procedures involved in obtaining an immigrant visa for the spouse of a US citizen and, by extension, in obtaining immigrant visas for unmarried children under 21 and parents of adult US citizens (aged 21 or older). However, it cannot possibly cover all permutations of the facts, and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.