Kenneth Harder | Kenneth.Harder@jacksonlewis.com

 

A citizen of the United States living in Canada may be asked by an employer to relocate to the U.S. on short notice. Such a relocation may be problematic when the U.S. citizen wishes to relocate along with a Canadian spouse.

The Challenge

A binational family, composed of a U.S. citizen and a Canadian spouse, may be confronted by a significant challenge when relocating to the United States due to the government processing time for the required immigrant visa application. The source of the delay is the two-step process normally required for family-based immigration. The U.S. citizen first must file an immigrant petition with U.S. Citizenship and Immigration Services (USCIS). Second, the foreign (i.e., non-U.S. citizen) relative must file an application requesting permanent resident status.

Currently, USCIS is estimating that it may take more than 14 months to adjudicate a family-based immigrant petition. Once the immigrant petition filed on behalf of a foreign relative is approved by USCIS, it is sent to the U.S. Department of State (DOS). The beneficiary of the immigrant petition is then scheduled to attend an immigrant visa interview at a U.S. consulate. The DOS procedures associated with the immigrant visa interview can add six months or more to the process before the foreign relative receives an immigrant visa and can enter the United States as a lawful permanent resident. For most families, a wait of over 20 months to be reunited is neither practical nor desirable.

The Solution

The delay in the eligibility of a Canadian spouse to enter the United States as a permanent resident can be significantly shortened by using an exception to the usual process. To utilize this exception, a U.S. citizen living in Canada should contact the U.S. Consulate with jurisdiction over his or her place of residence in Canada. (The location and contact information for U.S. consulates in Canada can be found on the website of the U.S. Embassy in Ottawa: United States Embassy Ottawa (usembassy.gov)). The U.S. citizen should request authorization to file the immigrant petition at the consular post, thereby avoiding the long wait for USCIS to adjudicate the petition.  

Direct filing of an immigrant petition at a consulate is not available to U.S. citizens who are already present in the United States. Furthermore, if the immigrant petition already was filed with USCIS, direct filing at the consulate is no longer an option. 

To qualify for direct filing of the immigrant petition at a consulate, the U.S. citizen should provide proof of residence in Canada along with documentation demonstrating the urgent, unforeseeable need to relocate to the United States. Once the consular post determines a U.S. citizen is eligible for direct filing of the immigrant petition, it is forwarded to the U.S. Consulate in Montreal, the only consulate in Canada conducting immigrant visa interviews.  

The immigrant visa interview is not automatically scheduled upon approval of the immigrant petition. First, it is necessary to assemble the documentation required to support the immigrant visa application. In addition to biographical documents such as long-form birth and marriage certificates, applicants for an immigrant visa must provide a police clearance letter for countries where he or she lived for more than six months after reaching the age of 16. Military records, where applicable, and court records relating to any prior violation of criminal laws in any country also must be provided. Because each visa applicant takes a different amount of time to assemble documents, interviews are scheduled by the consulate only once the visa application file is documentarily complete. These interview appointments are then automatically expedited.

Limitations

This article describes a process for expediting an immigrant visa interview for the spouse of a U.S. citizen living abroad.  As a practical matter, this option is limited in most cases to the spouse of a U.S. citizen. A child born abroad to a U.S. citizen parent and a foreign parent is a U.S. citizen by operation of law, provided that the U.S. citizen parent satisfies certain physical presence requirements prior to the child’s birth. A citizen child may apply for a U.S. passport at a consulate. The parent of a naturalized U.S. citizen also may benefit from this procedure. However, this may be limited to circumstances where, for example, the parent is a regular member of the household of the U.S. citizen and requires care due to infirmity.

The reason for these limitations is the requirement for the availability of a visa to complete the immigration process once an immigrant petition is approved. The spouse of a U.S. citizen, as well as unmarried children under the age of 21, and parents are “immediate relatives” under U.S. immigration law. There is no limit on the number of immigrant visas that may be issued each year to an immediate relative of a U.S. citizen. All other family-based immigrants are subject to an annual immigrant visa quota. Currently, there is a waiting period of more than two and a half years for a visa to become available under the immigration quota for the spouse of a U.S. permanent resident. All other family-based immigrants have a significantly longer wait for a visa to become available under the applicable quota.

Summary

A citizen of the United States living abroad with an urgent, immediate need to relocate back to the United States along with a foreign spouse may be eligible to expedite the immigration process. Rather than filing an immigrant petition for the foreign spouse with USCIS within the United States, the petition may be filed at the U.S. consulate with jurisdiction over the petitioner’s place of residence abroad.  While this procedure does not yield an immediate immigrant visa, the process is significantly faster than waiting for adjudication of an immigrant petition filed with USCIS.

 

Last modified: May 28, 2024