Marriage Visa for Foreign Wife
The United States Immigration and Nationality Act (INA) provides for the issuance of a marriage visa to the immigrant spouse of a United States citizen if certain requirements are fulfilled under the law of the US.
The marriage visa is a family based immigrant petition wherein a US citizen petition for an immediate relative for immigrant status. An immediate relative includes spouses, parents, and unmarried minor children including minor stepchildren provided that the relationship was established before the child turned 18 years of ago. Essentially, the immigrant visa is the "green card" which permits the alien spouse to live and work in the US and also for any eligible dependents.
Excluded from the immediate relative petition is the derivative beneficiary, therefore a separate petition must be filed for each qualifying immediate relative, including children of the principal beneficiary. For example, husband can file for his new wife and her minor children who are under the age of 18, however, Husband would have to file a I-130 petition for each one.
When considering whether to file for a K1 fiance visa or marry abroad and file an immediate relative petition for their spouse, bear in mind that a spousal immigrant visa requires most of the immigration processing to be completed before entry into the US. Most of the fees, visa documents, and investigation are done before the spouse gains entry into the US. Therefore, the spouse enters the US as a green card holder and can find employment immediately, or can travel abroad without the hassle of a travel permit as required by the K1 fiance visa.
The investigation into the alien's background, prior immigration history, and bona fides of the relationship, and whether the alien is lawfully admissible, are conducted by the consular officers who interview the alien spouse before issuing the immigrant visa. The visa interview is conducted at the US Embassy in the individual's home country. Please note that on the K1 fiance visa, the individual go through the same process and is issued a non-immigrant visa instead of an immigrant visa in the spouse immigrant visa.
The requirements for the marriage visa is similar to that of the K1 fiance visa. There must be sufficient evidence that the couple, have a bona fide (sincere, legitimate, honest) marriage and not one that is attempting to circumvent immigration laws, they were legally able to enter into a valid, legal marriage and that all prior marriages of both parties were terminated through death or divorce, and the alien spouse is not subject to any legal grounds of inadmissibility.
US citizen petitioners are generally required to submit form I-864 Form which is an affidavit of financial obligation to support the alien spouse and dependents. A green card may be denied to the foreign spouse if the consular officer finds that there's insufficient income or assets to support the spouse and hence the spouse will be a public charge to the US government. Denial based on this ground is common, however, the petitioning spouse may use the assets and support of a joint or co-sponsor to fulfill this requirement. So long as the US petitioner can show that the income or assets is above the poverty guidelines, the petitioner should be able to overcome this issue.
In the event that at the time the immigrant visa is approved for the immediate relatives the marriage is less than two years old on the date of entry to the US, then the lawful permanent resident status will expire in a two year period. It's the condition that they must reapply when the card expires but in no way does that mean their substantive rights or obligations are impaired or limited.
Procedurally, the couple has to file a form I-751 to remove the condition within the 90 days preceding the second anniversary of the grant of permanent resident status. The couple file jointly to USCIS and submit supporting evidence of the couple's marriage in the last two years, such as bank records, credit card statements, and household bills evidencing the couple's bona fide relationship. In essence, the couple is revalidating their relationship to USCIS, and upon satisfaction of the evidence, will send the ten year green card to the spouse. Any eligible alien children that had filed previously can submit the same petition based on their parent's evidence.
