If the foreign national spouse is outside the U.S., perhaps because she has never been to the U.S. in her life, or perhaps because she returned abroad after a temporary stay in the U.S., she will need to apply for an immigrant visa at the U.S. consulate in her country after the immediate relative family petition is approved. The consulate does background checks to make sure the foreign national spouse is not barred from obtaining permanent residence by a criminal background, misrepresentation, previous immigration violation, or other ground, and requires a medical exam to demonstrate the foreign national has been vaccinated and is not barred by substance abuse issues. The consulate also checks for proof that the marriage underlying the immigrant visa application was entered into in good faith.

On the other hand, if the foreign national spouse is inside the U.S., he may apply for adjustment of status to permanent residence at the same time (“concurrently”) with the immediate relative petition. Call it a two-step! Adjustment of status requires that the foreign national spouse show he entered the U.S. with inspection by border officials and that he is not inadmissible, or ineligible according the government regulations for permanent residence.

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Around the world, many K-1 visas are denied at the interview stage, and careful preparation can make a big difference. If the K-1 visa is issued, the foreign national travels to the U.S. in K-1 status, and must marry within 90 days or return abroad. If the marriage occurs as planned within 90 days of entry, as the final stage of the case, the foreign national applies for adjustment of status to permanent residence.

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The joint petition may not be required in cases where the couple has divorced, where abuse has occurred, or where the applicant would suffer extreme hardship if conditions are not removed. The timing and documentation needed for those cases are different.

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• ➼ 1st preference – adult unmarried son or daughter of U.S. citizen
• ➼ 2A – spouse or minor child of lawful permanent resident
• ➼ 2B – adult unmarried son or daughter of lawful permanent resident
• ➼ 3rd preference – adult married son or daughter of U.S. citizen
• ➼ 4th preference – sibling of U.S. citizen

Because of the annual limits per category of family-based immigration, wait lists have developed for some people who would like to immigrate to the U.S. through family. The U.S. Department of State informs us of movement in the wait lists through its monthly Visa Bulletin, published at travel.state.gov/content/visas/english/law-and-policy/bulletin.

In some categories, the wait list is not too long, but for others it can take decades to reach the front of the line.

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Following the U.S. Supreme Court’s decision in U.S. vs. Windsor, the immigration agencies must treat same-sex married couples the same as anyone else. The new more expansive treatment of marriage applies to family-based adjustment of status, fiancé visas, employment-based derivatives, and more. After years of feeling frustrated for our same-sex clients who struggled to find alternative visa categories just to live with their spouse, we are thrilled to assist same-sex binational couples in pursuing their dream of permanent residence through the basis that makes the most sense – family.

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Some people are considered inadmissible to the U.S. such that permanent residence cannot be approved. The good news is that in many cases an applicant will be eligible to file an application for a waiver of inadmissibility. An experienced immigration attorney can determine when inadmissibility will form an obstacle to permanent residence, and whether a waiver is available in a specific case.

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