Marriage is a major event in anyone's life, and it can have serious legal implications.
If you are married to a U.S. citizen or permanent resident, and you plan to live with your spouse permanently in the United States, you need to apply for a marriage green card to make yourself a permanent resident. You may also choose to naturalize as a U.S. citizen once eligible.
Consider hiring a marriage immigration lawyer to ensure the process goes quickly and smoothly.
Marriage Immigration is based on a legal, bona fide marriage. Only U.S. citizens or U.S. permanent residents can petition for their spouses. To successfully obtain a marriage based green card, you must meet the following requirements:
You need to prove that the marriage is legal. So, you and your spouse must have married with free will and the marriage formalities must be recognized as legal in the jurisdiction where the marriage took place as well. The most direct evidence of a legal marriage is a marriage certificate.
If either you or your spouse is previously married, the previous marriage (s) must have ended by legal means, such as death, divorce, or annulment. You will be required to provide official documents to prove that the previous marriage has ended.
Same sex marriage is legal in the U.S. according to a decison made by the Supreme Court in United States v. Windsor in June 2013. The legal validity of a same-sex marriage is determined exclusively by the law of the jurisdiction where the marriage took place.
The following relationships are not recognized as marriages by the USCIS, even if valid in the place of marriage:
The marriage also cannot be a “sham”, which means the foreign spouse must not have entered into marriage solely for the purpose of obtaining an immigration benefit. USCIS aims to uncover visa fraud in all its forms. If a marriage is carried out for the specific purpose of obtaining a green card, that is considered fraudulent. To establish the bona fides of your marriage, you should submit a slew of documents to prove that the marriage was entered into in good faith. USCIS uses strict scrutiny to review every marriage based green card petition.
Every green card applicant is checked for inadmissibility in the application process.
Individuals with a history of criminal or terrorist activities, drug abuse, infectious medical problems, or certain other characteristics will generally not be allowed to enter or remain in the U.S.
The Immigration and Nationality Act (“INA”) sets forth grounds for inadmissibility. The general categories of inadmissibility include health (such as communicable disease), criminal activity, national security (such as terrorist and spy), public charge, lack of labor certification (if required), fraud and misrepresentation, prior removals, unlawful presence in the United States, and several miscellaneous categories.
For certain grounds of inadmissibility, it may be possible for a person to obtain a waiver of that inadmissibility. If you have any inadmissibility issue, do not analyze your own situation without consulting an experienced marriage immigration lawyer (Please build a hyperlink to contact us). If you meet certain conditions, you may still seek a waiver through the Form I-601, Application for Waiver of Grounds of Inadmissibility. In some cases, you may fit into one of the exceptions that are provided by the law. Then, you do not need to file a waiver application to overcome the inadmissibility.
If a person is likely to become a public charge, he or she will not be admissible. A public charge is a person who is primarily dependent on government subsistence. In order to determine if a person is likely to become a public charge, USCIS considers the totality of the individual’s circumstances, including health, family status, age, financial capability, employment history, and education, to name a few.
In order to prove the sponsoring spouse’s ability to financially support the spouse seeking a green card, the Form I-864, or “Affidavit of Support” should be filed together with the marriage immigration petition. Because the U.S. citizen or permanent resident is the sponsoring spouse or petitioner, financial documents pertinent to this spouse should be included. Those documents, for example, may include the sponsor’s tax returns, W-2s, bank statements, investment account statements.
The sponsor must be a U.S. citizen or U.S. green card holder, at least 18 years old, and have a domicile in the United States. The sponsor must have an annual income that is at least 125% of the Federal Poverty Guidelines. The income requirements change with the number of people living in the same household.
When looking at income levels, the USCIS/consular officer will look at the sponsor's employment income first. If the sponsor’s income is not sufficient, he/she can also use assets to meet these requirements. Assets include savings, stocks and bonds, and property (for example, a house or car). The total net value of assets, less liens and liabilities against them, must equal five times the difference between the sponsor's income and 125% of the poverty level for the household size. Sponsors of spouses and children of U.S. citizens must only prove assets valued at three times the difference between the poverty guidelines and actual household income.
If the sponsor has neither sufficient income nor any other assets, he/she may 1) find a “joint sponsor” who will agree to also financially support the visa applicant, or 2) use the income of a household member to meet the Poverty Guidelines.
If you meet the requirements for a Marriage Green Card, the application process takes three steps.
Step 1. Submit the I-130 petition and supporting documents
As the sponsor for the I-130 petition, your U.S. citizen or permanent resident spouse should first file the I-130 petition with USCIS. The I-130 petition is used to establish that you have a valid marriage to a U.S. citizen or permanent resident. With this I-130 petition, you need to provide documentation to prove that you have a bona fide marriage. You can submit the Form I-130 to USCIS either online or by mail.
Step 2. Submit Form I-485 or Form DS-260 application
How and when you can move to the second step depends on where you live at the time of filing. If you are already in the United States, you will file Form I-485, to adjust your status to that of a permanent resident. If you live outside of the U.S., you shall go through the consular processing by starting with submitting a DS-260 application with the National Visa Center (“NVC”).
If you are married to a U.S. citizen and are already in the United States, an immigrant visa is always available. You may be eligible to get your Green Card by filing Form I-485, Application to Register Permanent Residence or Adjust Status concurrently with your I-130 petition.
If your spouse is a permanent resident, or Green Card holder, you may file your Form I-485 when the visa number becomes available to your visa preference category, which is F2A. Check the Adjustment of Status Filing Charts from the Visa Bulletin to find out when it will be the time for you to file your I-485 application.
You may also submit applications for employment authorization and travel document along with your I-485 application. Therefore, you will be able to work for any U.S. employer and travel internationally freely during the pendency of your I-485 application.
Unlike the adjustment of status application, you cannot start the consular processing concurrently with the I-130 petition, even if your spouse is a U.S. citizen. After your I-130 petition is approved, you will receive a fee bill from the National Visa Center (“NVC”) with your NVC case number on the bill.
If you are married to a U.S. citizen, you may file the DS-260 application as soon as your I-130 application is approved. If you are married to a U.S. Green Card holder, you need to check the monthly Visa Bulletin released by the Department of State to determine if it is time for you to submit the DS-260 application.
Step 3: Attend your Green Card Interview and receive your Green Card
The final step in the marriage immigration application process is a Green Card interview. The primary purpose of this interview is to determine if there is any marriage fraud and whether to grant you a Green Card.
If you filed an I-485 application, the USCIS field office closest to you will send you an appointment notice for a Green Card interview. Both you and your spouse must attend the interview. If you applied through Consular Processing, once the NVC has finished reviewing your Form DS-260 application, it will forward your case to the U.S. Consulate in your home country, which will send you an interview appointment notice. Your spouse is not required to attend your Green Card interview abroad.
Once you pass the interview, you will receive your Green Card or the immigrant visa soon.
Please be advised that your permanent resident status is conditional if it is based on a marriage that was less than two years old on the day you became a permanent resident. To remove conditions, you must file Form I-751, Petition to Remove Conditions on Residence.
If you are filing a marriage immigration petition on the Form I-130, you need to prove that your marriage is real. Even if you have a bona fide marriage, you still need to provide an abundance of evidence to show that the marriage was born out of real love and you married with each other with an intention to form a life together.
The evidence varies case by case. The following list is not a complete document list that may fit into your case. Make sure to consult an experienced marriage immigration attorney about your case specific issues.
Remember, each case is unique. There is no one-size-fit-all solution. If your case is complicated, assistance from an experienced marriage immigration attorney will increase the chance to have your petition approved.
This interview is typically the last step involved in processing marriage-based green cards.
If you are in the U.S. and filed the I-485 application, both you and your spouse must be present at the interview, and it's often advised that you bring documents related to the bona fide marriage and financial documents supporting the Form I-864, Affidavit of Support. You should refer to the interview appointment notice for detailed instructions about what you should bring to the I-485 interview.
The USCIS officer will ask a wide range of questions, which usually include three different categories of questions. The first category will be about your relationship, the second category will be about how well the two of you know each other, and the third will be on security and inadmissibility questions.
Often, the immigration officer will separate you and your spouse. Each of you will be asked the same questions about your life. Then, the officer will compare your answers to see if the answers are consistent between you and your spouse. Even if you and your spouse know each other very well, you should prepare for this line of questioning ahead of time. This is because your interpretation of events may be different from your husband's or your wife's interpretation. For example, you and your spouse may have a different understanding about when your first date was. Especially if you happen to meet online or through a non-traditional way, your interpretation of when you first met might depend on whether you consider your first online interaction or your first interaction in person as your first date. It is imperative for you to sit down and go over the timeline.
It may be a stressful process for some people. If you and your spouse give too many contradictory answers in the interview, your case could be denied. An immigration attorney can help you prepare for your interview so that you know what to expect and can have a less stressful experience.
If you are immigrating through the consular processing, the U.S. Consulate in your home country will send you an appointment notice for a Green Card interview. The notice will provide details about what you should bring to the interview. The interview is for the intending immigrant, the citizen or permanent resident spouse is not required to go. The consular officer will ask you similar questions about how you and your spouse got to know each other and how your relationship evolved. The consular officer will decide if an immigrant visa should be granted to you based on your answer and evidence presented.
When you obtain a green card through marriage, you will be granted a permanent green card that is valid for ten years or a conditional green card that is only good for two years. If your marriage is not older than 2 years when the green card is issued, you will be given a conditional green card. The condition attached on the conditional green card is that you must prove that your marriage is not fraudulent. You and your spouse are required to file a joint I-751, Petition to Remove Conditions on Residence within the 90-day period before the expiration of your Conditional Permanent Resident (“CPR”) status.
Dissolving the marriage before the completion of your two-year CPR period will likely be a red flag to USCIS officials. It will make immigration officers doubt if your marriage was entered in good faith from the start.
To do this, you may request a waiver of the joint filing requirement of the Form I-751 petition. You can file at any time before the expiration of status if you can establish that: 1) the marriage was entered into in good faith, but the marriage was terminated or the petitioning spouse died; 2) the marriage was entered into in good faith, but the CPR was subject to abuse; or 3) the termination of status would result in extreme hardship to the applicant.
To prove your marriage was entered in good faith, you may provide the following documents:
Typically, USCIS closely examines this type of waiver application. It is advisable that you consult your immigration lawyer before filing the petition. You should not panic if you receive a Request For Evidence (“RFE”).
In 2009, USCIS issued Neufeld Memorandum, I-751 Filed Prior to Termination of Marriage. In this memorandum, it permits filing either a joint petition or a waiver after separation but prior to divorce. However, the filing procedures will be different depending on different timings.
The Neufeld Memo provides that:
If a waiver is filed post separation but prior to final divorce, petitioners will receive an RFE requiring that the divorce be finalized in 87 days after filing the waiver. If the divorce is finalized before the response to the RFE is due, petitioners may submit the divorce decree in response to the RFE and the case will be processed as a waiver case. If petitioners fail to finalize the divorce in the 87-day response period, they will receive a notice revoking CPR status, and a Notice to Appear will be issued. However, if the divorce is finalized during their removal proceedings, petitioners may still have a chance to establish eligibility for the waiver from the joint filing requirement before an immigration judge.
If a joint petition is filed post separation but prior to final divorce, Petitioners will receive an RFE asking for a divorce decree, and when it is submitted, petitioners must then request that their case be converted to a waiver case. This will avoid the need to refile the case as a waiver. When this occurs, the case may or may not, depending on the strength of its merits, be referred for interview. If petitioners are not yet divorced when the RFE response is due, then the case will be evaluated on the strength of the bona fides of the marriage. USCIS will then approve, deny, or interview.
Although the Neufeld Memo states that I-751s filed where petitioners are separated but not divorced may be adjudicated without interview, in all likelihood, cases in this category will be scheduled for interview. Because relationships often deteriorate during the divorce process, it may make a joint appearance at an interview impossible. In this instance, the best way to improve your chances of getting an approval is to consult an experienced immigration lawyer.
Though marriage immigration appears to be the simplest way for aliens to immigrate to the U.S., the twists and turns in the process can easily cause problems to people without immigration law background.
The application is more than just filling out the immigration forms. The key to obtaining a marriage green card is to prove a bona fide marriage. What evidence to collect for your specific case, what alternative documents should be included if one category of evidence is not available, how to correctly answer specific questions on the forms and how to respond to RFEs are common roadblocks to obtaining a successful result.
Our law firm has an excellent track record in helping foreign spouses achieve their marriage green cards. We are familiar with the process and always come up with solutions for complicated cases. You can count on us to help. For a free initial consultation of your case and an estimate of your legal fees, get in touch with the Law Office of Lu & Associates today.