ALEJANDRO ROQUE., ESQ. | IMMIGRATION & CRIMINAL LAW ATTORNEY

Residence through Marriage

Marriage as a means to obtain permanent residence (Green Card)

Permanent resident status is the most desired U.S. immigration benefit for many foreign-born individuals (a green card). Marriage to a U.S. citizen or permanent resident is one of the most popular and quickest methods for an immigrant to receive a green card.

After marrying a U.S. citizen, a foreign spouse becomes an "immediate relative," and after marrying a U.S. permanent resident, he or she becomes a "preference relative." The procedure for obtaining a family-based green card for the spouse of a U.S. citizen or resident is briefly outlined below.

Step One: A permanent resident or U.S. citizen files an I-130 petition for an alien relative.

The first step is to file a USCIS Form I-130 with U.S. Citizenship and Immigration Services (USCIS) to establish the foreign-born spouse's relationship to a U.S. citizen or resident. This involves showing that the partnership is legally recognized (by submitting a marriage certificate) and genuine—that it was not entered into in bad faith to acquire a green card.

Some applicants are exempt from filing the I-130 as a separate step one. If the spouse is a U.S. citizen and the prospective immigrant is lawfully present in the United States or has entered the country lawfully, the couple may submit a complete package of "adjustment of status" application documents to USCIS (described below). The I-130 is included with the I-485 and related documentation.

Applicants must provide documented proof of a bona fide marriage, such as wedding announcements and pictures, bank and insurance accounts, joint auto registration, children's birth certificates, and joint credit card bills, if applicable.

Hopefully, USCIS will approve the I-130 petition and the process will continue.

Step 2 for Spouses of U.S. Permanent Residents: Wait for a current priority date.

Spouses of U.S. green card holders are subject to annual limitations on green card allocations as “preferred relatives.” There is now a long waiting list, which can extend up to two years. (However, in recent years, there has been no wait in this category, known as “F2A.”)

Applicants can check their "Priority Date" (listed on the USCIS approval notice) and then the Department of State's monthly Visa Bulletin to see where they are on the waitlist.

Step Three: Consular Processing or Adjustment of Status.

In the future, the immigrant may have a choice in the application process:

• An immigrant who is already in the United States will use "consular processing," which involves interacting with the National Visa Center (NVC) and then interviewing at a local consulate to be authorized for an immigrant visa and entry into the United States (upon entry the immigrant becomes a U.S. permanent resident).



• An immigrant in the United States may have the option of leaving the country for consular processing or staying to complete an "adjustment of status." However, the criteria for individuals to be able to apply for a change of status are strict. The individual must be lawfully in the United States (most likely with a temporary visa and a current I-94); in the United States after a lawful, non-fraudulent admission (regardless of any overstay); or fall under any archaic statute that allows adjustment of status (rare; consult an attorney for details).

The immigrant will be accompanied through the application process by the NVC and the consulate, and will be required to submit various papers and documents, pass a medical exam, and eventually attend an interview and pay various visa fees. The U.S. spouse is not required to attend the interview, but the immigrant must answer questions about the validity of the marriage. The immigrant will be granted an immigrant visa to enter the United States during or shortly after the interview.

With adjustment of status, the immigrant must wait for USCIS approval of Form I-130 and then create a copy of that notice to accompany Form I-485 and supporting forms and documentation, including a medical examination report, or send the entire package if submitting the I-130 simultaneously (mentioned above). This is done by mail and must be accompanied by payment of a fee.

After that, USCIS will contact the applicant to schedule biometrics (fingerprinting) and an interview at a local USCIS office. The immigrant's U.S. spouse must accompany him or her to the interview, and the two will be questioned about the legitimacy of their marriage. The applicant should be granted permanent resident status during or shortly after the adjustment interview.

Most immigrants prefer to modify their status whenever possible. This is especially true because it avoids the inadmissibility issue faced by applicants going through consular processing, in which any stay in the U.S. of 180 days or more could result in a multi-year ban on entering the U.S.

The U.S. petitioning spouse must demonstrate financial ability to support the immigrant

An important component of this procedure is that the petitioning U.S. spouse must demonstrate to the U.S. government that he or she can provide sufficient financial support to the immigrant without relying on government assistance.

The most important documentation for this is provided on the USCIS Form I-864 Affidavit of Support. Even if the sponsor's income is insufficient, this form, along with accompanying documentation (such as proof of taxes paid and income generated), is required in all cases. In most situations, the sponsor's household income must be at least 125 percent of the current poverty line (based on the guidelines shown on Form I-864P).

To act as a sponsor, the U.S. spouse must also currently reside in the United States. Spouses of Americans residing in other countries will need to show that they intend to return to the United States in the near future.

When the U.S. sponsor's income is insufficient, high-value assets can occasionally be used to make up the difference, or joint sponsors may underwrite the support obligation. Despite this, the U.S. government may conclude that the immigrant is likely to become a "public charge" (need government support) and deny the green card.

Conditional green card and two-year marriage requirement

If a couple's application for adjustment of status or admission to the United States on an immigrant visa is approved before their two-year wedding anniversary, USCIS will issue a "conditional green card."

This will expire after two years unless the couple makes efforts to remove requirements, such as completing USCIS Form I-751 and accompanying documents to show that the marriage is continuous and real, rather than just a method of obtaining permanent residence in the U.S. If such requirements are met, the conditional residence is converted to permanent residence and the immigrant becomes eligible for U.S. citizenship.

How children of an immigrant spouse can obtain green cards due to their parents' marriage

Children of a foreign-born spouse may apply for permanent residence with their parents in most, but not all, cases.

If the father is a permanent resident of the United States, unmarried children under the age of 21 may accompany the father's petition as "derivatives."

If the parent is a U.S. citizen, each child will require a separate I-130 petition, which will likely show a stepparent relationship (the marriage must have occurred before the child's 18th birthday).

After the necessary I-130 is approved, the children's petitions will be processed along with the parents' petitions. If the parent is a conditional resident, the children will also be granted conditional residency, and must be included on the parent's I-751 petition within two years. (However, it is possible for minors to file independently, which is sometimes essential in situations such as a parent's divorce.)