Relocating as U.S. Citizen with your Foreign Spouse to the U.S. – the Petition Process, Consular Processing, Short Cuts and Pitfalls

By Beau Russell, attorney at Thomas Martin LLP, New York/Copenhagen

A common U.S. relocation story begins when a U.S. spouse and their foreign partner, living abroad, decide to move to the U.S. Maybe the U.S. Citizen spouse is ready to “go home” or maybe an opportunity presents itself that is just too good to pass up. While the U.S. Citizen husband or wife is free to move as soon the boxes are packed, it may be a longer road for the foreign spouse. This situation often creates tough decisions and surprises when navigating the U.S. immigration system. This blog will touch on the often over looked hurdles that a U.S. and foreign spouse couple will face in such a process.

Long Wait Periods

The general process for a U.S. and foreign spouse couple to relocate together usually involves the U.S. citizen spouse petitioning (applying) for the foreign partner for permanent residency, or a green card. This process begins with the U.S. citizen spouse sending a petition application to the U.S. If the petition is approved, the U.S. Immigration Service (USCIS) then forwards the petition to the U.S. Department of State for processing. First, the case arrives at the National Visa Center and then, eventually, at a U.S. Embassy in or near the foreign spouse’s home country.

This process can take anywhere from six months to two years for the spouse to be ready to move to the U.S. Normal processing times as of the publishing of this blog are 9 to 12 months for the initial petition application alone. Add to that processing times at the National Visa Center and the Embassy, which are thankfully quicker, and the process can easily stretch out to a year or more. It is therefore, important to plan for such wait periods. There are, however, circumstances in which a couple can avoid such wait times.

International USCIS Offices and Expedited Processing

Applicants who reside in countries with International USCIS offices may apply directly at these offices. Offices are in countries such as England, Germany, Italy and Greece. Processing times at these offices are usually a fraction of the time of that of U.S. processing centers. Therefore, it is sometimes advantageous to apply directly with these offices if the couple resides in a country with an international office.

Further, in exceptional circumstances, U.S. Embassies without USCIS offices can be authorized by USCIS on a case by case basis to accept petition applications. This may be an attractive option for those wanting to avoid the extremely long wait times for spousal petitions and do not reside in countries with USCIS offices. For a petition to be accepted at a local U.S. Embassy however, the applicants need to show that they face exceptional circumstances such as a medical emergency, threat to personal safety or in some cases an unforeseeable and immediate relocation of employment. The last scenario is not a completely uncommon situation for some couples. If the couple is moving due to an attractive job offer which cannot wait a year, maybe the couple does not have to make the tough decision to forego that opportunity for the sake of staying together.

 

Consular Processing and Taxes

As mentioned, when a petition is finally approved, the case is then forwarded to the Department of State for consular processing. At this stage the Department of State, through the National Visa Center, asks the couple to submit further documentation including civil documents and financial records.

This step is important to be aware of early in the relocation process as foreign residing couples often find pitfalls during this step. Most notably, U.S. Citizen spouses will be required to submit an affidavit of support for their foreign spouse. This affidavit is a document the U.S. Citizen signs to accept financial responsibility for their foreign spouse. For this form to be accepted, the U.S. Citizen spouse needs to have filed their U.S. taxes and be able to show that they intend to move to the United States. Therefore, some preparation needs to be undertaken before the Department of States requests these documents.

Often, U.S. Citizens living abroad fail to file their U.S. taxes, as they are required to do. This may be because they believe the obligation to file taxes in fulfilled by the filing taxes in the foreign country. Or they simply were unaware of the obligation. Further, the U.S. Citizen spouse needs to take some steps to show they intend to reside in the U.S. once the immigration process is complete. Documents such as housing inquiries, bank accounts, job applications/offers, and insurances are helpful in showing the U.S. Citizen’s intent of moving to the U.S.

In the end, this process can be a long and taxing journey. But with some preparation, it can be navigated successfully, and even more quickly.

Beau Russell is a U.S. Immigration attorney licensed in California and working at the Copenhagen, Denmark offices of THOMAS MARTIN LLP. For the past several years in California and Denmark, he has helped hundreds of individuals solve their U.S. Immigration issues. Beau joined THOMAS MARTIN in 2015 and works from our Copenhagen Offices. His specialty is assisting businesses and families obtain non-immigrant/temporary visa and permanent/immigration visas (“green cards”) to the U.S.

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