Green Card through Marriage Application

Green Card through Marriage Application

Family Based Immigration

-Green Card through Marriage Application-

There are many options to get a Green Card through Marriage to a U.S. Citizen (“USC”) or Lawful Permanent Resident (“LPR”).

  1. Green Card through Marriage to a USC

It is well known that marriage to a USC is the fastest and easiest way to get a Green Card or to save a foreign-citizen’s illegal status. However, marriage to a USC will not automatically change one’s status to a lawful and permanent status in the United States.

       A. Adjustment of Status after Marriage to a USC in the United States

i) Non-US spouse is legally in the U.S.

In this case, a USC can petition (“I-130”) for the Non-US spouse to adjust his or her status in the United States provided that their marriage was entered in good faith. In order to support an I-130 petition, the following documents should be included:

  1. Form G-325A, Biographic Information
  2. Form I-130, Petition for Alien Relative
  3. Form I-864, Affidavit of Support
  4. Marriage Certificate
  5. United States Citizenship and Immigration Service (“USCIS”) Filing Fee, and
  6. Evidence proving a valid marriage

After I-130 approval or concurrently, a Non-US spouse may apply for an application (“I-485”) to adjust his or her status in the United States. Filing an I-485 concurrently with an I-130 may expedite the entire process, however, if an I-130 is denied, the USCIS will not refund the I-485 filing fee without reviewing the application. Therefore, it is recommended to seek a legal advice from an experienced immigration attorney before filing these forms concurrently. In order to support an I-485 application, the following documents should be included:

  1. Form G-325A, Biographic Information
  2. Form I-485, Application to Adjust Status
  3. Form I-693, Report of Medical Examination and Vaccination Record
  4. Form I-864, Affidavit of Support
  5. Form I-765, Application for Employment Authorization
  6. Form I-131, Application for Travel Document
  7. Marriage Certificate
  8. USCIS filing fee
  9. Valid Passport with U.S. Visa Stamp page
  10. I-94 Record, and
  11. Evidence proving a valid marriage

Once an I-485 is applied, the USCIS will send an appointment letter to take the Non-US spouse’s fingerprints. Before an I-485 is completed, an Employment Authorization Card (“EAC”) and Travel Document will be issued. At this point, the Non-US spouse can work legally and travel abroad while the I-485 is pending. When the USCIS approves the I-485 application, the Non-US spouse will receive a conditional Green Card which will be valid for 2 years. The Non-US Spouse must remove the condition within 90 days before the card expires. Otherwise, the Non-US spouse will lose his or her permanent resident status. To remove the conditions on a Green Card, the Non-US spouse and the USC must jointly file a Petition (“I-751”) to Remove the Conditions of Residence. If the USC is not willing to jointly file the I-751, then the Non-US spouse will not be able to remove conditions except in the following cases:

  1. Divorce
  2. Death of the U.S. Citizen spouse
  3. The foreign spouse was subjected to physical battering and/or extreme mental cruelty, and/or
  4. Extreme hardship if returned to home country

In these cases, the Non-US spouse can apply to waive the joint filing requirement and will be required to prove that the marriage was entered in good faith and not for the purpose of evading immigration laws.

When an I-751 is finally approved, the Non- US spouse will receive a formal Green Card valid for 10 years. The Non-US spouse will be eligible to apply for Naturalization one year after receiving a formal Green Card.

ii) Non-US spouse is illegally in the U.S.

If the Non-US spouse has overstayed a Temporary U.S. Nonimmigrant visa, he or she will be forgiven and the same process for a Non-US spouse who is legally in the U.S. will be applied. However, if the Non-US spouse is overstaying beyond the authorization period admitted by the Visa Waiver Program (“VWP”) or the Non-US spouse entered the U.S. without inspection (“EWI”), then he or she may not be able to adjust his or her status in the U.S. Under Section 212(a)(9)(B) of the Immigration and Nationality Act, individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome this bar. Therefore, the Non-US spouse must apply for Provisional Unlawful Presence Waivers (“601A”) after the I-130 is approved and the U.S. Department of State (“DOS”) immigrant visa fee has been paid. A 601A cannot be filed concurrently with any other applications. Once a 601A is submitted, the Non-US souse will be requested to provide fingerprints. In order to support the 601A application, the following documents should be included:

  1. Form 601A, Application for Provisional Unlawful Presence Waiver
  2. Copy of DOS immigrant Visa Processing Fee Receipt
  3. Copy of Form I-797 indicating approval of I-130 petition
  4. Application fee
  5. Evidence proving hardship to Non-US spouse and USC
  6. Marriage certificate, and
  7. Copy of USC Birth Certificate or U.S. Passport

Once the 601A is approved, a Non-US spouse must depart the U.S and appear at his or her immigrant visa interview with a U.S. Consular officer abroad. If the DOS consular officer determines that the Non-US spouse is admissible to the United States and eligible to receive an immigrant visa, then he or she will be issued an immigrant visa.

       B. Marriage to USC in A Foreign Country

When a Non-US spouse and a USC marries in a foreign country and remains there from the date of their marriage, then the Non-US spouse can apply for U.S. permanent residence in that foreign country. As a general rule, the validity of a marriage is judged by the laws where the marriage takes place. However, if a marriage is considered offensive to the laws and public policy of the United States, it will not be recognized as valid for immigration purposes. If the marriage is valid, the USC must file an I-130 petition. Once an I-130 is approved, the USCIS will send the petition to the Department of State’s National Visa Center (“NVC”) for pre-processing. The NVC will initiate the immigrant visa pre-processing, including colleting visa fees, forms, and documents from sponsors (petitioners) and the immigrant visa applicants. After payment of the visa fee, the USC and the Non-US spouse must complete the Application for Immigrant Visa and Alien Registration (“DS-260”) in the Consular Electronic Application Center (“CEAC”). In order to support a DS-260, the following documents should be included:

  1. Form DS-260, Application for Immigrant Visa And Alien Registration
  2. Form I-864, Affidavit of Support
  3. Form I-693, Report of Medical Examination and Vaccination Record
  4. Marriage Certificate
  5. Evidence proving that the marriage, and
  6. Non-US Spouse’s Birth Certificate and passport

Once all documents are submitted, the Non-US spouse will be scheduled for an interview at the U.S. Embassy or Consulate located in the Non-US spouse’s home country. At the end of the immigrant visa interview, the consular officer will inform the applicant whether the visa application is approved or denied. If the application is approved, the Non-US spouse’s visa will be placed on a page in his or her passport. Also, the Non-US spouse will receive a sealed packet containing documents that he or she must present to U.S. Customs and Border Protection (“CBP”) at a port-of entry upon his or her arrival in the United States. The Department of Homeland Security (“DHS”) and CBP have authority to grant or deny admission. When the Non-US spouse is admitted, he or she will enter as a LPR, also called a green card holder.

       C. Fiancé visa (“K1”) and adjustment of status after entering the U.S.

If a USC plans to bring a foreign national to the U.S. and marry later but within 90 days, then the USC may file a Petition (“Form I-129F”) for Alien Fiancé(e). In order to file an I-129F, the following documents should be included:

  1. Form G-325,
  2. Form I-129F, Petition for Alien Fiancé
  3. Form I-134, Affidavit of Support
  4. Birth Certificates
  5. Evidence proving ongoing relationship

Once an I-129F is approved, the USC will receive an approval notice from the USCIS valid for 4 months from the date of approval. The USCIS will also send the petition to the NVC. When the case is received at the embassy, the embassy will send the beneficiary a packet of instructions that provides further information, including how to book an appointment and what documents the beneficiary will need to present at the interview. If the interview is scheduled after the initial expiration date, the consular officer may extend the validity. The packet will ask the beneficiary to assemble the following documents:

  1. A valid passport with an expiration date at least six months
  2. Birth Certificate
  3. Police Certificate from all places lived since age16
  4. Form DS-3025, Medical Examination
  5. Form I-134, Affidavit of Support
  6. Evidence proving ongoing relationship
  7. Visa Processing Fee
  8. Two passport size photos
  9. Fiancé Visa Application (D-160) with confirmation page

After the interview and if approved, the foreign national fiancé will receive a K1 visa on his or her passport. The Fiancé Status automatically expires after 90days. It cannot be extended. Therefore, the foreign national will be required to leave the U.S. at the end of the 90 days if the marriage does not take place. Once the USC and the foreign national fiancé marry, the foreign national may apply for LPR. Process to adjust a K1 visa status to a LPR status is a similar process as in the Adjustment of Status after Marriage to a USC in the U.S., as explained above.

       D. Foreign Spouse visa (“K3”) and adjustment of status after entering the U.S.

The K3 nonimmigrant visa is for a foreign national spouse of a USC. The foreign national does not necessarily need to apply for a K3 visa because he or she can apply for LPR status while residing in his or her home country. However, to shorten the physical separation between the foreign national and a USC, a K3 visa is an available option. In order to receive a K3 visa, a USC must file a Petition (I-129F) for Alien Fiancé with supporting documents. Once the USCIS receives the I-129F petition, they will send a receipt notice to the USC. The USC must then file an I-130 petition with a copy of receipt notice. Once a I-129F is approved, the remaining process will be same as a K1 visa process, except for an Affidavit of Support form. In this case, the foreign national should have a Form I-864 instead of an I-134. The foreign national spouse may apply for LPR status after arrival in the United States provided that an I-130 is approved. The LPR process is the same as the process for an Adjustment of Status after Marriage to a USC in the U.S.

2. Green Card through Marriage to LPR

A LPR also can be a sponsor for his or her foreign spouse’s Green Card Application. The petition process is similar to the process for Adjustment of Status after Marriage to a USC in the U.S., as explained above. However, visa numbers are limited for a Non-US spouse of a LPR. Therefore, a Non-US spouse of a LPR should maintain his or her independent legal status in the United States from the filing date to the approval date. Also, a LPR should note that, unlike a USC, they cannot be a petitioner for a K1 or a K3 visa petition. Lastly, a LPR sponsor cannot save a Non-US spouse’s illegal status in the United States unless a waiver of inadmissibility is granted.

The above is for information purposes only and does not constitute legal advice. For more information or to consult with our attorneys, please feel free to contact The Choi Law Group, LLC.