Applying For A Green Card Through Marriage To A U.s. Citizen

Most people are aware that the application for a green card through marriage to a citizen of the United States is one of the quickest ways of obtaining a permanent residency status in the USA. Unlike most other United States immigration situations, a foreign individual can apply for a green card by marriage to a United States citizen, assuming he or she is inside the U.S., even if he or she has unlawful presence in the U.S. or has overstayed a visa. However, there are some circumstances where one may not be able to apply for U.S. permanent residency thru marriage to a U.S. citizen.

One is eligible to apply for a green card thru marriage to a United States citizen by means of adjustment of status if he or she is inside the United States and otherwise meets the qualifications. Some foreign nationals do not qualify for the marriage green card process. For example, the following types of individuals are not eligible for the marriage green card process in the U.S.: 1) a person who entered the U.S. without being inspected; or 2) a person who entered the United States as a Crewman. There are other scenarios which may also bar an individual from adjustment of status in the U.S. as well.

The first part of the adjustment of status process is for the U.S. citizen spouse to submit a Form I-130 petition on behalf of the foreign citizen spouse. The I-130 establishes the family relationship between the United States spouse and the foreign spouse.

The second step is for the foreign national spouse to submit an I-485 Adjustment of Status application either simultaneously with the I-130 petition or anytime after the I-130 has been sent and/or approved. Typically, most I-485 applications are submitted at the same time as the I-130 petition. In addition to the I-485 application, the foreign national will have to have a medical exam conducted by a doctor designated by the USCIS who will complete an I-693 form as part of the exam.

In addition to the medical exam, an Affidavit of Support must also be completed and sent with the green card via marriage application. The Affidavit of Support is a very important part of the application and has to be completed by the U.S. spouse in spite of of his or her income. The idea behind the affidavit of support is that the United States government does not want the foreign individual to become a "public charge". If the affidavit of support requirements are not met through either the U.S. citizen spouse or a joint sponsor, then the application for adjustment of status may not be approved.

If the U.S. citizen spouse does not meet the income guidelines for affidavit of support, which is not uncommon, then either a joint sponsor will be needed or, in some cases, the income and/or assets of the foreign spouse can be used. The typical situation is that a joint sponsor is used and that person also submits an Affidavit of Support application in addition to the U.S. spouse. A joint sponsor can be any United States citizen or United States green card holder. He or she need not be related to either the U.S. citizen spouse or the foreign spouse.

The Affidavit of Support is a long term commitment by all who sign it. It is legally enforceable by the U.S. government for any means-tested public benefits utilized by the sponsored foreign individual. The obligation to support the foreign spouse ends when the foreign person becomes a U.S. citizen, has earned 40 working quarters (equivalent to approximately 10 years of working), dies, or permanently leaves the U.S.

As part of the adjustment of status process, the foreign spouse may apply for authorization to legally work in the U.S. and advance parole while the green card through marriage application is pending. Work authorization gives the foreign person the right to lawfully work in the United States while the application is pending. The travel document or advance parole can be used to travel outside of the United States while the adjustment of status application is pending. A couple warnings about travel outside of the U.S. during the pendency of the adjustment of status application: 1) If you travel outside of the U.S.before receiving advance parole, the application will be abandoned, unless you are in H-1B or L-1 status and you have an H-1B or L-1 visa to use to re-enter the U.S.; and 2) If you travel outside of the United States, you may be subject to a 3-year or 10-year bar to re-entry, even if you have advance parole, depending on the specific facts and circumstances of your case.

After submitting the various applications receipt notices will arrive from USCIS acknowledging receipt of the applications. In addition, a biometrics appointment for the fingerprinting and photographing of the foreign national spouse will be scheduled. Shortly thereafter, work authorization and advance parole will arrive. Lastly, a notice will be sent from USCIS scheduling an appointment for both husband and wife for a joint interview.

Many dread the marriage green card interview, whether it's because of rumors heard from others, information obtained online, or just a general fear of dealing with the government face to face. If you and your spouse have married in good faith, are represented by an experienced attorney, are well informed regarding the interview process, and have all the necessary supporting documents, you have nothing to fear with a well-prepared case. It is highly important to work closely with your lawyer before to the green card interview.

Under certain circumstances the foreign spouse may receive an I-551 stamp in his or her passport, assuming all has gone well at the interview. The actual green card will arrive in the mail several weeks later. If at the time of the interview the marriage was less than 2 years old then the foreign spouse will be approved fora conditional green card. In such a scenario the foreign spouse will have to apply to remove the conditional nature of the green card within 2 years after becoming a perment resident. Generally, one is eligible to apply to remove the conditional nature of his/her green card within one year and nine months as of becoming a green card holder of the U.S..

In the case of an adjustment of status application, it is essential that both spouses fully comprehend their particular case and the steps involved in the process. Competent legal counsel is important through all parts of the application process and therefore it is strongly suggested that you work with an attorney experienced in these matters before moving forward. Permanent residency is a highly sought after U.S. immigration benefit and something that should be pursued with a high degree of care.