Living Abroad and Applying for a Marriage-based Visa

Aug 5, 2016 | Form I-130

Basics on Waivers of Inadmissibility: Essential Guide for Law Firms

Struggling with complex waiver of inadmissibility cases?

Imagine turning these challenges into opportunities for your law firm.

Mastering the basics on waivers of inadmissibility can elevate your practice, leading to more successful outcomes, increased client satisfaction, and a stronger reputation.

In this article, we dive deep into everything you need to know about waivers of inadmissibility, from eligibility criteria to the application process.

Ready to boost your expertise and attract more clients? Read on to discover how.

Eligibility Criteria for Adjustment of Status

As a Miami immigration lawyer, I have often represented individuals who are applying for a marriage-based visa while living abroad. If you are a U.S. citizen living abroad (or you are a U.S. green card holder traveling abroad for an extended period of time), and you are married to a foreign citizen who wishes to receive a U.S. green card based on your marriage, you and your spouse should be able to initiate the green card application process from outside the United States. Below are some frequently asked questions.

How do I begin the process of applying for a marriage-based visa?
To begin, you will need to file a family visa petition on Form I-130. If you live in a country where U.S. Citizenship and Immigration Services (USCIS) has established an office, then you have the choice of filing your petition directly with that office or sending it by international mail to USCIS’ Chicago Lockbox.

Unsurprisingly, I-130 petitions filed directly with local USCIS offices are likely to be processed more quickly. However, this is not always the case. Therefore, before choosing your filing route, you should try sending an inquiry about I-130 processing times to your local USCIS office, and compare it with processing times at USCIS service centers in the U.S. If you have any questions about this, you may want to consult with a Miami immigration lawyer.

The USCIS does not have a presence in the country where I reside. What are my options?
If you live in a country where USCIS does not have a presence, you have no choice but to file the I-130 with the Chicago Lockbox, unless your case presents an exception that would allow you to file directly with your local U.S. embassy or consulate (in which case, consular officers would decide your petition under the oversight of a USCIS office in the U.S.). Again, if you have any questions in regard to this, you may want to speak with a green card marriage immigration attorney in Miami.

What does the USCIS consider an acceptable exception to filing directly with the local U.S. embassy or consulate?
Typically, the USCIS has a lot of freedom to decide what should count as an acceptable exception, but such circumstances would usually include (though they would not be limited to):

  • Local humanitarian emergencies – such as natural disasters.
  • Medical emergencies – such as an at risk pregnancy of the petitioner or beneficiary.
  • Employment-related emergencies – such as members of the U.S. military being transferred, or U.S. citizens being relocated by their foreign employer, on short notice.
  • Other personal emergencies – such as imminent danger to the safety of the petitioner or beneficiary.

(Exceptional circumstances may also include certain procedural emergencies, such as a beneficiary “aging out” of eligibility for a visa category. However, emergencies of this type are not directly relevant to marriage-based green card applications.) Note that if your request for an exception is denied, you will have no right to appeal or to request a reconsideration of the decision. Again, if you have any questions in regard to this, you should speak with a Miami immigration lawyer.

What’s the next step after my I-130 petition is approved?
If your I-130 petition is approved, the next step will be for your spouse to apply for an immigrant visa via the State Department (not USCIS) and to attend an interview at his or her local U.S. consulate or embassy. To assist your spouse in completing this last step, you will probably need to sponsor him or her by submitting aForm I-864, Affidavit of Support. (This form is a contract in which I-130 petitioners promise to take financial responsibility for I-130 beneficiaries so that the latter never become dependent on U.S. government support.) However, only petitioners “domiciled” in the U.S. who have complied with U.S. federal tax filing requirements can be I-864 sponsors. If you have any questions in regard to this, you may want to speak with a Miami immigration attorney.

Do I have to be domiciled in the U.S.?
Yes. If you live mainly outside the U.S. (as opposed to having left the U.S. only temporarily – for a definite period of time, with the intent to return, and while maintaining ties to the country) then, as a general rule, you cannot file an I-864 and your spouse’s immigrant visa application cannot be approved. If you have any questions in regard to this, you should speak with a Miami I-130 petition attorney.

Are there any exceptions to the general domicile rule?
Yes. There are three exceptions to this general domicile rule, for:

  • U.S. citizens who are employed abroad by the U.S. government, U.S research institutions, U.S. firms involved in foreign trade, U.S.-related international organizations, or U.S.-related religious organizations.
  • U.S. green card holders who are employed by the same entities above and who already have filed for and obtained approval for a Form N-470, Application to Preserve Residence for Naturalization Purposes
  • I-130 petitioners who intend to establish a domicile in the U.S. either before or at the time of their beneficiary’s arrival in the U.S.

The third exception above requires showing (with a written explanation and supporting evidence attached to the I-864) that the petitioner has taken concrete steps towards leaving the foreign country to live in the U.S. – steps such as changing his or her foreign address to establish a physical mailing address in the U.S. (by signing a lease, purchasing a home, or even making arrangements for housing accommodations with a friend or relative), leaving his or her foreign job and applying for jobs in the U.S., registering children at U.S. schools, opening U.S. bank or investment accounts, applying for a U.S. Social Security number, and so on. Again, you should probably speak with a Miami immigration lawyer in regard to this if you have any questions.

What kinds of U.S. federal tax filing requirements must I comply with?
Certain petitioners (especially U.S. citizens who have never lived in the U.S.) may have been unaware of their U.S. federal tax-filing obligations. This could be a problem, especially since I-864 sponsors are required to submit a copy or transcript of their most recent U.S. federal income tax return (unless they can prove that they were not required to file such a return). One solution might be to file a late return and pay back taxes. However, petitioners would be wise to seek out both tax and immigration counsel before taking any step in that direction.

If you have any questions in regard to  applying for a marriage-based visa while living abroad, or about the I-130 petition, please contact Miami immigration lawyer The Law Office of Tatiane M. Silva, P.A., Esq. at (305) 895-2500 or visit our website at tmsilvalaw.com.