When a U.S. citizen (or permanent resident) marries a foreign national living overseas, the process for the couple to be re-united in the U.S. can (often much to the surprise of both spouses) take years. 

Among the most common inquiries GYH receives is from U.S. citizens or permanent residents seeking a green card for a foreign national spouse. In addition to the arduous task of navigating the immigrant visa process, couples are often dismayed to discover that the foreign national spouse may be stuck in their home country throughout the entire process. Thanks to convoluted immigration laws made more sticky by divisive politics, the processing time for these immigrant visas can take years. Naturally, most married and engaged couples prefer not to be apart for extended periods. This post explores five options for couples in this tricky predicament.

1.    Pursue a Non-immigrant Visa

The easiest and least expensive way for the couple to be together during the green card process is for the foreign national spouse to apply for a non-immigrant visa.  If the couple is not yet engaged and want to spend time together before deciding on marriage, an entire range of non-immigrant visas (i.e. F1, H3, J1, P3, Q1, R1) may be available.  On the other hand, once the couple has decided to marry and the foreign national spouse has formed the intent to immigrate to the U.S., only dual-intent visas such as the H-1B or L-1 remain as options. 

2.    Seeking a B Visa

Foreign nationals are allowed to travel to the U.S. on a B visa (tourist visa) while an immigrant visa petition is pending (and can even sometimes be issued a B visa stamp during the process with a full disclosure of the facts) but they will need to substantially limit their time in the U.S. in B status.  Because the B visa does not allow you to live in the U.S. it is recommended never to spend more than six months in the U.S. in B status in a one-year period.  Further, foreign nationals may not work in the U.S. (in our opinion, even remotely for a foreign employer) while in B status.  The B visa option could afford couples some time together while the application is processing but is unlikely to be an ideal solution.

3.    K Visa for Spouses

The K visa was created specifically to allow spouses to travel to the U.S. during the immigrant visa process. Theoretically, this would be the best option for most couples. In practice, K visa approval typically takes as long as or longer than the immigrant visa process. GYH does not generally recommend K visas  because the process is cumbersome and time-consuming and the visa rarely saves much time (if any); however, the option is there for those who wish to try everything.

4.    I-130 expedite

This option has very limited chance of success but, if granted, could be a significant gain for geographically separated couples. All Congressional offices offer immigration casework to constituents and in theory can help request an expedite.  However, in practice USCIS rarely grants expedites. Foreign nationals may be eligible for an expedite if they meet the following criteria:

  • Severe financial loss to a company or person;
  • Urgent humanitarian reasons;
  • Compelling U.S. government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests).

5.    Mandamus lawsuit against USCIS

A final option, which is an extreme remedy but could help when the case is pending well beyond average/ published processing times, would be to file a mandamus lawsuit against USCIS. A mandamus lawsuit is a petition filed with the Federal District Court that seeks to compel USCIS to make a decision on a specific immigration case. Particularly in light of the pandemic, it is difficult to say how favorably the court would view such requests but, the option is available to couples desperate for a solution that keeps them together.

If you are interested in exploring which option(s) may be best suited to your individual case, please email info@grossmanyoung.com or call 301-917-6900 to schedule a consultation.