Filing an Immigration Petition (I-130) for a Foreign Spouse

An overview of the process, and some tips on the form to petition for your foreign spouse to immigrate to the U.S.

If you are a U.S. citizen or lawful permanent resident, then as soon as you and your immigrant spouse are married, you can file the Petition for Alien Relative (Form I-130) with U.S. Citizenship and Immigration Services (USCIS). This is the first step for any alien who wishes to immigrate to the United States as the relative (spouse or otherwise) of a U.S. citizen or a lawful permanent resident (green card holder). The form is not filed by the prospective immigrant, but rather signed and submitted by the petitioning U.S.-based family member.

Form I-130's main purpose is to prove to the immigration authorities that:

  • the petitioner is qualified to sponsor someone, by virtue of being a U.S. citizen or a green card holder, and
  • the intending immigrant is in fact related to the petitioner -- in this instance, is married to him or her.

Because the visa petition is only the start of the process, its approval by USCIS does not give the intending immigrant any right to enter the United States, nor any guarantee that a green card will ultimately be approved.

For some immigrants, namely spouses of U.S. citizens, the process will likely be relatively quick. If living overseas, you will be able to proceed with your green card application immediately after USCIS approves the I-130, by applying for an immigrant visa through a U.S. consulate in your home country. If you are already living lawfully in the U.S. or here after a lawful entry, you won't have to wait for I-130 approval to file your adjustment of status (AOS) application, but can file the I-130 and their AOS application concurrently.

For other spouses, however, the process will be more complicated. For instance, spouses of U.S. citizens who entered the country without inspection (illegally) are not eligible to adjust status in the United States -- though they may still be eligible for a green card through another method, called consular processing. They will have to await approval of the I-130 petition, then travel to their home country for a visa interview. Unfortunately, they may be barred from return to the U.S. based on their history of unlawful presence in the U.S. -- see "Three-Year and Ten-Year Time Bars for Unlawful U.S. Presence" to see about applying for a waiver in such a case.

Fortunately, a new (as of March 4, 2013) "provisional waiver" allows many such spouses to submit this waiver application before leaving the U.S., to avoid the risks of being barred from return if the waiver is denied.

For intending immigrants married to lawful permanent residents, the process will also require multiple steps. They are in the second "preference" category of visas, and therefore face annual limits on the number of visas available in their category. Because the demand for visas is always greater than the supply, they might wait several years between approval of their I-130 and being allowed to go forward with their application for lawful permanent residence; often up to around five years.

Where to Get Form I-130

Like all immigration forms, Form I-130 is available for free download at the USCIS website at www.uscis.gov. Click the Forms tab, then scroll down to the correct form number.

Tips for Filling Out and Filing the I-130 Petition

Here are some important things to know about preparing and submitting Form I-130:

  • The form runs in two columns, with the left column meant for information about the U.S.-based petitioner, and the right column meant for information about the intending immigrant. Although the petitioner fills out and signs this form, the immigrant should look at a copy and supply the information needed to complete the relevant sections.
  • In Question 6 of each column, list your current marital status, which should of course be "married." However, if you were previously married and have since been widowed or divorced, you will later need to name that previous spouse and show that the marriage truly ended (so that you aren't married to two people at once).
  • If you are interested in petitioning for children of the spouse as well, you need to figure out whether they are eligible, and whether each needs a separate Form I-130. For starters, they need to be unmarried and under the age of 21 to immigrate at the same time as the parent. If the child qualifies as the stepchild of a U.S. citizen, you will need to submit separate I-130s for each child. For qualifying children of a permanent resident, naming them on the parent's I-130 is enough, because they are likely considered "derivatives. See "Derivative Immigration Status For Family Members of Immigrating Aliens" for more on this odd set of rules.
  • Send only copies of the requested documents, not originals. If you send originals, you are unlikely to ever get them back.
  • If you cannot obtain a document you need, you may substitute other documentation such as school records or affidavits.
  • Documents that are not in English need to be accompanied by a complete, word-for-word translation. It's okay to have a friend do this, but the person should write at the bottom that they certify that this is a complete and accurate translation, and sign their name.
  • Married couples must provide a marriage certificate (a copy) from a government office. The I-130 instructions also ask them to provide proof of their marital union such as joint leases, bank accounts, and children's birth certificates. Most lawyers advise waiting to submit these materials until the visa or green card interview, however.
  • All stand-alone Form I-130 petitions must be sent to a USCIS office called the Chicago Lockbox.  You cannot submit Form I-130 in person to a USCIS office. The Chicago office will forward your file to the appropriate office or consulate as appropriate.
  • Be sure to make complete copies for yourself of your visa petition, documents, and check or money order. These will help if USCIS loses your petition or claims you didn't include a check (it happens).

For the most current address and filing fee, please see the USCIS website or call the National Customer Service Center at 1-800-375-5283.

What Happens After an Immediate Relative's I-130 Is Approved

If you're filing an I-130 for an immediate relative spouse (that is, you are a U.S. citizen), then just as soon as that petition is approved, your relative can apply for an immigrant visa and green card. If the relative lives overseas, then that will be done through a U.S. consulate or embassy. If the person lives in the United States after a legal entry, then he or she may be able to "adjust status" through USCIS. But check with an immigration attorney to be sure. If your relative is eligible to adjust status as an immediate relative, then you don't actually have to wait until I-130 approval to submit the full green card application -- you can do it all at once.

What Happens After a Preference Relative's I-130 Is Approved

Once the I-130 petition is filed and approved, relatives in preference categories (spouses or unmarried children under 21 of a U.S. permanent resident) must wait for an immigrant visa number. How long they wait depends entirely on how many other people in their category had an I-130 approved on their behalf ahead of them, and on which country the alien is from. Because of per-country limits, people from certain parts of the world wait extra long -- usually those from Mexico, China, India, and the Philippines.

Progress on the waiting list is measured by the immigrant's Priority Date, which comes from the date that USCIS received the I-130 visa petition. You can call the U.S. Department of State at 202-663-1541 to find out the current Priority Dates for immigrant visa numbers based on country and category or check the latest Visa Bulletin on the State Department website.

Once an immigrant number is available, the eligible relative can apply for an immigrant visa, most likely through an overseas U.S. consulate. In a few rare cases, such as immigrants who've been living legally in the United States, the immigrants may instead be allowed to apply for adjustment of status, a process which is done without leaving the United States. Talk to an immigration attorney before trying this.

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