Spouse-Based Immigrant Visa Strategies for HR Advisors

Navigating Spouse-Based Immigrant Visas for Employees Returning to the U.S. Under Trump Administration Policies

As an HR practitioner, advising employees on immigration matters can be a complex task, especially under evolving policies. If you have American employees being transferred back to the U.S. with their non-citizen spouses, understanding the nuances of spouse-based immigrant visas is crucial. This guide aims to provide you with detailed information to assist your employees during this transition.

Understanding Spouse-Based Immigrant Visas

The spouse-based immigrant visa is designed for the foreign spouse of a U.S. citizen or lawful permanent resident. Under the Trump administration, immigration policies saw significant changes, impacting the processing and approval of these visas. Here’s a breakdown of what you need to know:

Types of Visas for Spouses of US Citizens

1. IR1/CR1 Visa: This is for spouses of U.S. citizens. The IR1 is for couples who have been married for more than two years, granting permanent residency. The CR1 is for marriages less than two years old, granting conditional residency.

2. K-3 Visa: This nonimmigrant visa allows the foreign spouse to enter the U.S. and await the approval of their immigrant visa petition. However, its usage has declined due to longer processing times and evolving policies and therefore we don’t advise to pursue the K-3 visa.

Options for Children of US Citizens

US citizens who give birth outside the US who have lived in the US for at least five years with two years after the age of 14 will be able to transmit US citizenship to their children who will be able to apply for a US passport. For US citizens who have not been physically present in the US for the requisite amount of time, will need to either sponsor the child for an immigrant visa or explore whether a US passport can be obtained via a US citizen grandparent, although the latter option can take a very long time to complete.

Process and Timelines for US Citizen Family Immigrant Visas

The process for a US citizen to sponsor their family member will require a two-step process where first, a Form I-130, Petition for Immigrant Relative is filed with the US Citizenship & Immigration Services (USCIS) and then the second stage involves an interview at a US consular post outside the US. The total processing time for this could take 18 to 22 months on average.

Alternatively, if the US citizen has a short notice transfer to the US, it may be possible to ask the US consular post to accept the fling of the USCIS I-130 Petition under “exceptional circumstances”. This could save many months of processing time and if there is a genuine job offer, it will help the family have a more realistic timeframe to return to the United States. An important requirement of an exceptional circumstances request to a US consular post is that if an I-130 Petition has already been filed with the USCIS, the request will be rejected.

There are options to request an expedite but these will accepted only in situation where there is an extreme humanitarian situation and it has a very high bar for the US government agency to allow someone’s case to be processed ahead of all others who are pending.

Considerations for Lawful Permanent Resident (“LPR”) Staff 

Returning to the U.S.: LPR staff should ensure their green card status is maintained, especially if they have been abroad for extended periods. They may need to apply for a Re-Entry Permit if their stay outside the U.S. was prolonged.

Documentation: Emphasize the importance of carrying necessary documentation, such as the green card and any additional evidence of ties to the U.S. US Customs and Border Protection’s Carrier Liaison Program has issued a Carrier Information Guide guidance for airlines on what is acceptable documentation for all travellers to the US including LPRs to be boarded onto a US flight. The most recent guide as of the writing of this posting was published in November 2023.

Visa Options for LPR Family Members

LPRs may sponsor their spouse and children under the age of 21 and unmarried sons and daughters over the age of 21 for permanent residency but there are significant backlogs in when the immigrant visas become available. There is no ability to request that the US consular post review the petition as there is for US citizens.

Key Changes Under Trump Administration

– Increased Vetting: The administration implemented stricter vetting processes, including extensive interviews and background checks.

– Public Charge Rule: The rule expanded the criteria for assessing whether an immigrant might become a public charge, impacting visa eligibility.

– Travel Bans and Executive Orders: Several executive orders affected visa issuance from specific countries, though these may not directly impact spouse-based visas, the environment created uncertainty.

Advising Employees on US Travel or Visa Processing

In general, assuming the non-US family member can visit as a Visitor under a B Visitor visa or under the Visa Waiver Program with an ESTA and can demonstrate upon each trip they have an intention to visit as a tourist or for business meetings, have a return flight booked, that they are maintaining sufficient ties to their home country they may visit the US temporarily while they are going through the immigrant visa process.

Warning on Adjustment of Status within the US

While US immigration regulations allow an immediate relative to pursue a different process to obtain a green card within the US which is called Adjustment of Status, this is a very dangerous way to proceed and even more so under the Trump administration. As indicated above, a non-US family member may visit temporarily but if they enter as a visitor with the intention of remaining and applying for a green card under Adjustment of Status this could result in a refusal of entry or a finding that the person misrepresented their intended temporary intent when they entered the US.

When applying for Adjustment of Status a spouse may apply for an Employment Authorization Document (EAD) to be able to work in the US but at this time it is taking up to eight months for this document to be issued and during this time, the spouse is unable to work in the US.

Conclusion

While the Trump administration introduced several challenges to the spouse-based immigrant visa process, HR practitioners can play a pivotal role in guiding employees through these complexities. By understanding the intricacies of the process, preparing employees thoroughly, and staying informed about policy changes, you can help ensure a smoother transition for your American employees and their spouses returning to the U.S.

For further guidance, consider consulting with Flynn Hodkinson to provide the most accurate and up-to-date information available.

This is posting is for informational purposes and is not intended as legal advice. If you require further assistance or advice relating to the above, If you require further assistance or advice relating to the above, please contact our Principal Lawyer, Janice Flynn at janice@flynnhodkinson.com.