By Brian Figeroux, Esq.
When a U.S. green card holder (lawful permanent resident) marries a spouse who is overseas, they face an important decision: Should they petition immediately for their spouse under their current status, or wait until they become a U.S. citizen to file the petition? The key consideration in this decision is speed—how quickly the spouse can reunite with them in the United States.
This article provides a detailed analysis of both options, comparing the processing times, legal implications, risks, and strategic considerations to determine which route is the fastest.
Understanding the Immigration Process for a Spouse
A U.S. green card holder or citizen can sponsor a foreign spouse for a green card, allowing them to live and work in the United States. The process involves filing Form I-130, Petition for Alien Relative, with the U.S. Citizenship and Immigration Services (USCIS).
- For green card holders, the petition falls under the F2A family preference category (spouses and minor children of lawful permanent residents).
- For U.S. citizens, the petition is categorized as an immediate relative petition, which does not have a visa backlog.
Processing time varies depending on whether the petitioner is a green card holder or a U.S. citizen. The primary concern is whether filing immediately as a green card holder is faster than waiting to naturalize before filing the petition.
Option 1: Petition Immediately as a Green Card Holder
A lawful permanent resident (LPR) can file Form I-130 immediately after marriage. This starts the immigration process for the foreign spouse under the F2A category.
Advantages of Filing Immediately
- Establishes a Priority Date
- The I-130 petition secures a place in line for visa availability, based on the date it is filed.
- The earlier the petition is submitted, the sooner the spouse can immigrate when a visa becomes available.
- Reduces Future Delays
- If the petitioner delays filing and the spouse’s country has a long wait time, the process can be significantly prolonged.
- By securing a spot in the queue, they can minimize unnecessary delays.
- Potential for Automatic Upgrade
- If the petitioner becomes a U.S. citizen while the I-130 petition is pending, the case automatically upgrades from the F2A category to immediate relative status, eliminating the visa backlog.
- This can shorten the processing time considerably.
Disadvantages of Filing as a Green Card Holder
- Visa Bulletin Wait Time
- Unlike spouses of U.S. citizens, spouses of green card holders face waiting periods due to annual visa limits in the F2A category.
- Visa bulletin updates determine how long it takes for an F2A visa to become available.
- Longer Consular Processing
- After I-130 approval, the spouse must wait for a visa number before proceeding with consular processing or applying for an immigrant visa.
- This can take months or even years, depending on visa availability.
- Spouse Cannot Enter the U.S. on a Tourist Visa to Stay
- If a green card holder petitions for their spouse, the spouse cannot legally enter the U.S. on a tourist visa with the intent to remain permanently.
- If discovered, it can result in visa denial or inadmissibility issues.
Option 2: Wait to Become a U.S. Citizen Before Filing
If the green card holder is eligible for U.S. citizenship soon, they may consider waiting until they naturalize before submitting the I-130 petition.
Advantages of Waiting for Citizenship
- Immediate Relative Category (No Waiting for a Visa)
- Unlike the F2A category, spouses of U.S. citizens fall under the immediate relative category, which is not subject to visa backlogs.
- This significantly reduces the overall processing time.
- Faster Processing Overall
- The I-130 petition and green card processing for immediate relatives typically take 12 to 18 months, much faster than F2A processing with visa backlog delays.
- Consular processing is also faster for immediate relatives.
- Spouse Can Enter the U.S. on a K-3 Visa
- A U.S. citizen can file for a K-3 visa, allowing their spouse to enter the U.S. and wait for green card approval inside the country.
- This option is not available for green card holders.
- More Flexibility with Adjusting Status
- If the spouse is already in the U.S. on a valid visa (such as a student or work visa), they can adjust status to a green card without leaving the country.
- This option is easier for spouses of U.S. citizens than for those of green card holders.
Disadvantages of Waiting for Citizenship
- Delaying the Start of the Immigration Process
- If the green card holder has several years before they are eligible to naturalize, waiting to file can delay the process significantly.
- In contrast, filing immediately secures a place in line for the spouse’s immigration process.
- Uncertain Naturalization Timeline
- Naturalization can take 1-2 years, depending on USCIS processing times and the petitioner’s eligibility.
- If there are delays in citizenship approval, waiting to file could slow down the spouse’s immigration process even further.
Which Option Is Faster?
The fastest option depends on the petitioner’s eligibility for U.S. citizenship and current visa wait times in the F2A category.
- If the green card holder is eligible for U.S. citizenship within 1 year, waiting to naturalize before filing is likely faster.
- If citizenship is 2+ years away, filing as a green card holder is advisable to establish a priority date and avoid unnecessary delays.
- If the petitioner is uncertain about their naturalization timeline, filing immediately provides a backup option that can later be upgraded.
Estimated Timelines Comparison
| Option | Timeframe |
|---|---|
| File as a green card holder (F2A) | 2-4 years (depending on visa availability) |
| Wait to become a U.S. citizen, then file | 12-18 months (after naturalization) |
| File now as an LPR and upgrade upon naturalization | Can speed up processing if citizenship is obtained quickly |
Final Recommendation: File Now or Wait?
For most green card holders, the safest strategy is to file the I-130 immediately and then upgrade the petition upon becoming a U.S. citizen. This ensures that the process has started while also allowing flexibility if naturalization occurs sooner than expected.
However, if the petitioner expects to become a U.S. citizen within one year or less, it might be worth waiting to file under the immediate relative category, as this significantly shortens the waiting period.
Each case is unique, and factors like country-specific visa wait times, the spouse’s travel needs, and potential obstacles to naturalization should be considered when making a final decision. Consulting an immigration attorney can also help ensure the best course of action for reuniting as quickly as possible.