Permanent Residency (Green Card) for Japanese Spouses of U.S. Citizens

A U.S. permanent resident Green Card holder (non-citizen) may petition for their spouse to receive permanent residence. However, there is a quota on visa issuances for such applicants. The current total processing and waiting time for spouses of US permanent residents is approximately 24-36 months (compared to approximately 12-18 months for spouses of U.S. citizens). This article only focuses on U.S. Spouse petitioners.

Although marriage is a requirement for a Green Card Application, the K-1 visa system allows for the fiancé of a U.S. citizen to enter the U.S. and be wed within 90 days by filing form I-129F (Petition for Alien Fiancé). The Japanese Spouse could then apply for a Green Card within the U.S. Our English-speaking attorneys can prospectively assist applicants determine whether, based on their circumstances, it would be quicker and easier to marry first in Japan and apply for a Green Card, or utilise the K-1 visa system and be married in the U.S. The broad eligibility requirements for a K-1 petition and visa application in general are as follows:

Please contact us for further information about the K-1 visa process.

Form I-130 (Establishment of Relationship)

The U.S. Spouse must first file Form I-130 ‘Petition for Alien Relative’ along with its supporting documentation with USCIS. This purpose of this form is to establish that the couple has entered into a legally valid, bona-fide marriage. Documents to be prepared by the U.S. Spouse in order to file a Form I-130 include:

The application fee for Form I-130 is $535. For reference, a table detailing the current fees for the various applications and petitions referenced in this article is provided below. After filing the form with USCIS, the U.S. Spouse will typically receive a response for the decision within 10 months.

After the U.S. Spouse files Form I-130, the Japanese Spouse is eligible to apply for a K-3 non-immigrant visa by filing Form I-129F (Petition for Alien Fiancé). Please note Form I-129F is used for both K-1 fiancé and K-3 spouse visas. This visa allows the Japanese Spouse to live and work in the U.S while the Green Card petition is pending.

The rest of this article is primarily concerned with couples intending on going through the entire Green Card application process whilst residing in Japan. This involves what is known as "consular processing." Couples living in Japan apply in Tokyo or Naha for an immigrant visa which allows the Japanese Spouse to be admitted as a permanent resident. Couples who take the K-3 visa path, K-1 visa path, or were already in the U.S. when the initial petition was made, apply for permanent residence status by a process known as "adjustment of status" through filing Form I-485.

Please contact us for assistance and advice related to the K-3 or K-1 visa path and obtaining permanent residency via adjustment of status.

1. Pre-processings

   After USCIS has informed the U.S. Spouse that their Form I-130 petition has been approved by way of a Notice of Approval (Form I-797), USCIS forwards the petition through to the Department of State National Visa Center (NVC). In some cases the U.S. Spouse will be notified of their successful petition prior to it being received by the NVC. For spouses of U.S. citizens, there is no annual Green Card issuance quota. In other words, the NVC begins processing immediately after receiving the case from USCIS, creates a case number and typically forwards it to the embassy or consulate located in the country in which the spouse of the applicant resides.

   The U.S. Spouse will then receive a welcome letter with a case number, beneficiary ID number and an invoice number. The NVC will also provide instructions to begin visa pre-processing by the Japanese Spouse. This involves filing Form DS-261 (Online Choice of Address and Agent), which provides your desired method of contact to the Department of State. Our attorneys can serve as your agent for this application. This form is typically processed within 3 weeks by the NVC.

   After the processing of Form DS-261, two separate fees are payable prior to proceeding with Form DS-260 (Immigrant Visa Electronic Application), $120 for the Affidavit of Support (an additional supporting document further discussed below), and $325 as a Department of State application processing fee. The Japanese Spouse can view the status of these payments at the NVC Consular Electronic Application Center.

2. Green Card Application

   Form DS-260 is the main Green Card application form and if the application is successful, the Japanese Spouse will receive an immigration stamp in their passport. The following tips may assist the Japanese Spouse in completing Form DS-260:

   1. The Japanese Spouse will need their case number, beneficiary ID number and invoice number. This information was provided in the NVC welcome letter referenced above.
   2. Only English language responses are accepted. In the case of Japanese Spouses, all names of people and places, addresses and the like must be transliterated into roman characters or romaji. For Japanese Spouses that are concerned about their English fluency, they should ask their U.S. Spouse for assistance or should consider hiring an experienced English-speaking attorney to complete the application forms.
   3. Form DS-260 cannot be amended after it is submitted. For this reason, the Japanese Spouse should be certain the information submitted is correct. If the Japanese Spouse’s circumstances have changed such that the information submitted is no longer accurate, or a mistake is found after submission, the Japanese Spouse should explain the situation to the consular officer at their Green Card interview in Tokyo or Naha. Again, the Japanese Spouse is encouraged to hire an experienced attorney to ensure the form is correctly completed and filed.
   4. Form DS-260 now requires the Japanese Spouse to list all social media account identifying information or handles used in the last 5 years. This includes platforms such as Facebook, Instagram, Twitter, LinkedIn, and YouTube. Recording an answer of "none" to the social media part of the form will likely result in additional questioning by the consular officer at the Green Card interview. It is understood that in the case that social media accounts are set to ‘private’, the Japanese Spouse will not be forced to reveal their usernames and passwords to review such accounts.
   5. The Japanese Spouse must list all past and present permanent addresses in which residence has been or was established. This does not include temporary lodgings such as hotels but would include school boarding facilities or college dormitories.
   6. The consequences of providing false information in Green Card applications can extend beyond merely being denied the granting of the Green Card applied for. Failing to disclose past immigration issues such as refusals or providing false personal information can amount to fraud, and the Japanese Spouse may be subject to federal prosecution. A likely scenario for a Japanese Spouse that provides false information or makes misrepresentations is the application in question being denied, and the Japanese Spouse being precluded from ever receiving another U.S. visa or immigration benefit (including ESTA – the visa waiver program) unless they are successful in receiving a waiver. For this reason, the Japanese Spouse is encouraged to pay special care to what is being asked in every question, even those that may be considered unimportant, such information relating to previous travel to the U.S., or employer information. If you have any concerns about how to answer any questions, we strongly recommend that you speak to our experienced U.S. immigration attorneys.
   7. After submitting Form DS-260 online, the Japanese Spouse should print out the confirmation page which is to be brought to the Green Card interview at the consulate.

   After the application is submitted, the NVC provides the Japanese Spouse with a confirmation notice. NVC will then instruct the Japanese Spouse which supporting documents are to be uploaded, emailed or mailed, depending on the case.

3. Supporting Documents

   Typical supporting documentation that is requested as part of a Green Card application are as follows. Please note there may be other documents requested depending on the circumstances of the Japanese Spouse, and the U.S. consulate or embassy that is processing the application. Certified translations must be provided for any Japanese language document. Our attorneys are able to assist the Japanese Spouse in identifying specifically which Japanese documents must be issued to meet U.S. immigration requirements, and with the translation of the required documentation

   1. Japanese Spouse proof of nationality (such as a birth certificate or passport photo page copy).
   2. Copy of marriage certificate.
   3. In the case of prior marriage for either spouse, documentation evidencing the previous marriage has been legally terminated by divorce, death, or annulment (such as divorce or death certificates).
   4. If the Japanese Spouse has served in the military, a copy of their military record.
   5. Police certificates or police clearance letters showing any past infractions or lack thereof (certificates are regularly requested for any location the Japanese Spouse resided in for greater than 6 months after age 16, any location outside Japan the Japanese Spouse resided in for greater than 6 months after age 16, and any jurisdiction in which the Japanese Spouse was arrested or charged with a crime, irrespective of their age or for what period of time they had resided there).
   6. Proof that the U.S. Spouse can financially support the Japanese Spouse, unless an exemption applies, as discussed below.

4. Form I-864 (Affidavit of Support)

   Form I-864 or the Affidavit of Support is a document prepared for the purpose of promising the U.S. government that the Japanese Spouse will be financially supported or sponsored. The financial sponsor is often, but not always, the U.S. Spouse. By preparing this document, the U.S. government will have the right of recovery from the U.S. Spouse in the case that the Japanese Spouse has received certain public welfare payments. The types of welfare payments for which government recovery against the U.S. Spouse are possible include, but are not limited to, supplemental insurance income (SSI) and Temporary Assistance for Needy Families (TANF, generally referred to as welfare). Until January 2018, the Affidavit of Support alone was sufficient to satisfy the ‘public charge’ condition in Green Card application processing. A public charge is defined by USCIS as someone "primarily dependent on the government for subsistence" through receipt of welfare payments such as those mentioned above. Between 2018 and 2020 significant changes to the processing of the "public charge rule," have been made, as discussed further below.

   A broad overview of the role of a U.S. Spouse (in this case the "Financial Sponsor". This term includes any other person who may be appointed as sponsor in place of the U.S. Spouse) under an Affidavit of Support is as follows:

   1. The Financial Sponsor must be a U.S. citizen (or permanent resident) above the age of 18 and living in the U.S. In the case of consular processing for a Green Card, when the application is made in Japan and the U.S. Spouse is living and working in Japan, it may be possible for the U.S. Spouse to apply to be the Financial Sponsor if the U.S. Spouse intends to re-establish a U.S. domicile before or at the time their Japanese Spouse moves to the U.S. This intention could be proved by showing that the U.S. Spouse has begun the process of moving to the U.S. permanently, such as by:
      1. Resigning from their job in Japan and applying for or accepting a job in the U.S or establishing a business in the U.S.
      2. Closing of accounts in Japan and opening of accounts in the U.S, such as with financial institutions or utility companies.
      3. Transferring funds to the U.S. or making investments in the U.S.
      4. Selling assets in Japan and terminating leases, or purchasing property or signing a lease for a rental property in the U.S.
      5. Voting in U.S. elections at any level.
      6. Enrolling children in schools in the U.S.
   2. The income of the Financial Sponsor must be at least 125% of the Federal Poverty Guideline. In the case of the couple having children, or there are other people in the household, the required income level increases. In 2020, the minimum income level to meet this requirement is $21,550 for a U.S citizen that has no children and is not in active military duty.
   3. Assets held by the Financial Sponsor can be used to meet the requirement in item 2. This is important for couples applying in Japan, as the U.S. Spouse may not be employed in the U.S. at the time of application. Assets such as stocks, bonds, cash, and property may be used to make up any shortfall in required income levels, however the U.S. Spouse should note there are certain limitations and rules involved in calculating how assets will be valued for the purposes of supplementing income.
   4. There are also cases in which the income and assets of the Japanese Spouse may be used to meet the Affidavit of Support requirements, provided that the source of the income shall remain the same after the Green Card is obtained (which may be unlikely if the Japanese Spouse moves to the U.S.)
   5. It is also possible for the income of other household members in the U.S., such as parents, siblings and children to be included for the purpose of meeting the income requirement, provided that such persons must be willing to financially support the Japanese Spouse and that household member files Form I-864A (Contract Between Sponsor and Household Member).
   6. In the case that a non-household member is asked to co-sponsor the Japanese Spouse, that person must file an Affidavit of Support themselves and meet all the income requirements. For non-household member co-sponsors, incomes cannot be combined with the U.S. Spouse to meet the requirements.
   7. The obligations of the Financial Sponsor under an Affidavit of Support only end under the following circumstances. Divorce does not terminate financial sponsorship obligations.
      1. The Japanese Spouse becomes a U.S. citizen.
      2. The Japanese Spouse meets the requirements to be credited 10 years (40 quarters) under the social security system.
      3. The Japanese Spouse has left the U.S. and is no longer a lawful permanent resident.
      4. Either spouse dies.
   8. As discussed above, by preparing the Affidavit of Support, the Japanese Spouse can in some circumstances become ineligible for certain public welfare payments, as the income and assets of the U.S. Spouse are to be utilized for support instead. The Japanese Spouse may sue the U.S. Spouse for failure to provide financial support, and any government agency that provides welfare payments (if such payments are within the scope of the affidavit) to the Japanese Spouse may sue the U.S. Spouse for repayment.

   The U.S. Spouse should consider consulting with a U.S. immigration attorney when preparing the Affidavit of Support, particularly in the cases suggested in this article, where a U.S. Spouse domiciled abroad seeks to become a Financial Sponsor. Professional advice and assistance may be required to determine whether the proposed sponsor meets the various requirements, and whether income and asset levels are sufficient after the correct ratios and calculations are accounted for.

5. New Public Charge Rule Considerations

   As discussed in the previous section, beginning in 2018, the public charge rule was amended. Prior to January 2018, the submission of an Affidavit of Support was sufficient to establish that a Green Card applicant would not be a public charge of the U.S. The Affidavit of Support is now treated only as one factor to be considered by the consular officer when making a public charge determination. After a number of legal challenges, the final public charge rule has been implemented, effective as of February 24, 2020. For Green Card applicants on the consular processing path (such as those applying in Japan), the following changes are of note:

   1. A public charge is no longer someone who would become primarily dependent on public welfare payments, but rather someone who may receive such payments for at least 12 months over any 36-month period of time. The receipt of two welfare payments in one-month count as two months usage of this calculation.
   2. The Japanese Spouse will now be asked to submit Form DS-5540 (Public Charge Questionnaire). The questionnaire asks the Japanese Spouse about matters such as their finances (assets, income and debt situation, whether they have health insurance), any history of receiving certain public welfare payments in the U.S., and education history.
   3. Consular officers will now consider the use of ‘non-cash’ public benefits used by the Japanese Spouse in the past, such as food stamps and Medicaid. Under the previous rule, only cash-based benefits were relevant when making a public charge determination. In addition, the use of public benefits by family members of the Japanese Spouse, by the U.S. Spouse (when acting as Financial Sponsor), and by the household members of the U.S. Spouse (when acting as Financial Sponsor) can be considered when making a public charge determination.
   4. Consular officers will now consider any medical condition the Japanese Spouse has been diagnosed with, and whether the applicant has sufficient health insurance or the means to pay for medical expenses in the U.S.
   5. Consular officers will now consider the English proficiency of the Japanese Spouse.
   6. Consular officers will now consider the employment prospects of the Japanese Spouse in the U.S., their employment history, and may question Japanese Spouses about education, job offers and job skills.
   7. Consular officers will now consider any previous Japanese Spouse visa denials.

   As the new public charge rules have only been recently implemented, there are many outstanding questions and complaints about consular officers applying the new rules. It is highly recommended that couples on the consular processing path, such as a Japanese Spouse and U.S. Spouse residing in Japan, consult with a U.S. immigration attorney to ensure compliance with the new rules and avoid unnecessary questioning at consular interviews.

6. Final Processing and Interview Preparation

   Unless there are any additional requests made for documents by NVC, the Japanese Spouse will receive notice of a decision approximately 3-5 months after submitting all required application forms and supporting documents.

   After a decision has been made, the file of the Japanese Spouse will again be transferred from NVC to the relevant U.S. consulate or embassy (Naha or Tokyo) for the Japanese Spouse. Prior to attending the interview at the U.S. consulate or embassy, there are a number of steps the Japanese Spouse must take, including:

   1. Attending a medical examination to be performed by a doctor approved by the Department of State. The Japanese Spouse may schedule the examination after receiving the Green Card interview appointment letter. The medical examination is required to ensure the Japanese Spouse has no medical condition that would make them inadmissible for immigration purposes, such as having a serious communicable disease. A summary overview of the medical examination is as follows:
      1. The doctor typically reviews the medical and vaccination history of the Japanese Spouse.
      2. The doctor typically conducts a physical and mental evaluation of the Japanese Spouse.
      3. The doctor typically conducts tests for a range of diseases and illnesses, including a chest x-ray for tuberculosis, a blood test for syphilis, and a urine test for gonorrhoea.
      4. The doctor typically enquires about drug and alcohol usage.
      5. The Japanese Spouse is required to bring medical documents such as vaccination records, letters from medical professionals outlining any current treatment and medical records, in addition to the Green Card interview appointment letter received from NVC.
      6. The doctor will typically provide the results of the medical examination in a sealed envelope which the Japanese Spouse is to bring to the Green Card interview. The doctor may also send the results directly through to the consulate or embassy.
      7. The Japanese Spouse is typically at risk of being found inadmissible for a number of health reasons, some of which can be overcome without the need for a waiver of inadmissibility. A Japanese Spouse that tests positive for the communicable diseases described in this section must later prove to the Department of State that they have been cured. For a Japanese Spouse with a serious mental illness or drug abuse issues, evidence of a successful treatment plan must be demonstrated.
      8. In cases where the Japanese Spouse is found inadmissible for health reasons that cannot be avoided, they will need to apply for a waiver of inadmissibility. The assistance of a U.S. immigration attorney is recommended to assist with this filing.
   2. Attending a biometrics appointment. The fingerprints and photos of the Japanese Spouse are taken, which are then subsequently ran through various law enforcement databases. The FBI databases are searched for criminal records, and Department of Homeland Security databases are checked for immigration law violations. Green Card applicants on the consular processing path typically attend the biometrics appointment after the scheduling of their Green Card interview. Japanese Spouses with criminal records or a history of immigration law violations need to disclose such matters in the relevant part of the Green Card application prior to the biometrics appointment and seek a waiver as necessary. Japanese Spouses with concerns about these issues should consult with a U.S. immigration attorney.

7. Green Card Interview

   The interview in Naha or Tokyo is essentially the final step of the Green Card application process. The purpose of the interview is for the consular officer to determine whether the Japanese Spouse is eligible for a Green Card (without relying only on the materials submitted by the Japanese Spouse prior to the interview), and to confirm the couple has entered into a genuine marriage. For consular processing cases where the Japanese Spouse lives in, and has applied for a Green Card in Japan, it is not necessary for both spouses to attend the interview, although the U.S. Spouse may do so if the couple desires. Retained attorneys are typically not permitted to attend the consulate interview. An overview of the Green Card interview and some pointers for Japanese Spouses to consider when preparing are as follows:

   1. The Japanese Spouse should bring the original versions of all the documents submitted in the application process thus far to the interview, in addition to the DS-260 print-out confirmation page.
   2. As the Japanese Spouse is seeking to prove the authenticity of the marriage to the consular officer at the interview, the preparation of additional documents (that were not requested at a prior stage in the application process) is recommended. This could include recent photos of the couple, screenshots of online communications or phone records, recent bills or statements in the joint name of the couple, itineraries of any trips taken together as a couple, documents relating to any children the couple have together and so on. As with documents submitted in the application phase, certified English translations will be necessary for Japanese language materials.
   3. The entire appointment at the consulate or embassy typically takes approximately 3 hours. Over a 15-20-minute period, the interviewing consular officer will usually ask questions relating to past, present, and future aspects of the couple’s relationship, in addition to going over any criminal or immigration history, and past travel to the U.S. The Japanese Spouse should be prepared to answer questions relating to:
      1. When and how the couple met, when the couple became engaged and when they were married, and any details relating thereto, such as proposal, wedding, and honeymoon stories.
      2. The work and home life of the couple, such as sleeping and eating arrangements, details of who handles what duties around the house, favourite meals, what time people leave for work and so on.
      3. The extended family and friends of the couple, such as how many siblings the other spouse has, names of family members, how often are visits to the in-laws made, are there any mutual friends shared with the other spouse and so on.
      4. Education and employment details, including asking the Japanese Spouse about his or her spouses’ career background, such as where and what the other spouse studied, where they currently work, and details related thereto.
      5. The future plans for the couple, such as whether having children is under consideration.
      6. Interviewing consular officers have been known to ask personal questions relating to difficulties in the marriage, even as far as asking what type of contraception the couple uses. The Japanese Spouse may inform the interviewer if they are uncomfortable answering such questions.
   4. Typically, if the interviewing consular officer is satisfied with the answers provided in the interview, the Japanese Spouse will be informed on the spot that their application has been approved. However, there are cases in which the officer will inform the Japanese Spouse that additional information or documentation will be required (a request for evidence or RFE), that additional review by the U.S. Department of State is required, or that a follow up interview will be required on another date. In rare cases, the interviewer may refuse the application in person, citing ineligibility on a number of grounds, including immigration or criminal history, or for insufficient or suspicious documents being submitted. In any of these cases, the Japanese Spouse is urged to consult with a U.S. immigration attorney on how to remedy the situation, and to lessen the risk of such a situation from occurring, it is recommended that a U.S. immigration attorney is retained early in the process, or if possible, from the beginning of the application process.

8. Final Steps and Immigrating to the U.S.

   If the interviewing consular office approves the case in person after the Green Card interview, the Japanese Spouse will receive a visa packet, which is to remain unopened and to be presented to Customers and Border Protection (CBP) upon their later arrival in the U.S. The Japanese Spouse will then later also receive a visa stamped into their passport and be instructed to pay the USCIS Immigrant Fee of $220 online. The Japanese Spouse should immediately contact the consulate or embassy if there are any issues with the visa stamp, such as spelling mistakes. The $220 fee is payable for processing of the visa packet and production of the physical Green Card (which is typically received at the Japanese Spouse’s U.S. address within 45 days of entry into the U.S).

   The Japanese Spouse must arrive in the U.S. prior to the expiration of the validity of the granted visa and the issued medical examination. This typically means that the Japanese Spouse must arrive within 6 months of the issuance of the visa (the visa validity period), or sooner if the medical examination issued has a validity period expiring within that 6 months. The Japanese Spouse should carefully confirm these dates.

   For reference, the type of Green Card the Japanese Spouse will receive after entry into the U.S. depends on how long the couple have been married. For couples married less than two years at the time the Japanese Spouse is approved, they will receive a ‘CR1’ (conditional) Green Card. Within 90 days before the expiration of the two-year validity period for a CR1 Green Card, the Japanese Spouse must file Form I-751 (Petition to Remove Conditions on Residence) with their spouse to receive a permanent Green Card. This filing involves USCIS again reviewing the validity of the marriage. For couples married two years or more at the time the Japanese Spouse is approved, they will receive an ‘IR1’ (immediate relative) Green Card. This Green Card is valid for 10 years and renewal does not involve any further review by USCIS.

9. Conclusion

   After immigrating to the U.S and receiving their Green Card, Japanese Spouses are authorized and entitled to benefits including:

   1. Authorization to work in the U.S. They may represent that fact when completing Form I-9 (Employment Eligibility Verification).
   2. They may apply for a Social Security Card and receive social security benefits (provided such benefits are not those discussed in the Affidavit of Support section).
   3. They may apply for a state-issued driver’s license.
   4. They are generally able to re-enter the U.S. without a re-entry permit provided that travel is for less than 1 year.
   5. They are entitled to sponsor Green Cards for immediate family members. However, waiting periods for non-spouse family members are significant.

   Our experienced English-speaking attorneys can assist prospective Green Card applicants at every stage of the application, and step in to assist with any of the potential issues raised in this article. Our attorneys understand the importance of filing forms correctly the first time, collecting supporting documents and evidence, and preparing the Japanese Spouse for the Green Card interview. We encourage prospective applicants to consider their options prior to starting the Green Card application process themselves, particularly those Japanese Spouses in complicated situations, limited English proficiency, or with issues in their past that may require explanation or remedy.

   Please contact us with any questions you may have regarding the contents of this article, the Green Card Application process, or other U.S. immigration concerns.

10. Related Application Fees (May 2020)

    	Fee (USD)
    Form I-130 Application	$535
    Affidavit of Support	$120
    Department of State Immigrant Visa Application	$325
    USCIS Immigrant Fee	$220