How can I prove to a U.S. immigration officer that my husband or wife and I have a real marriage?
For a spouse of a U.S. citizen to be eligible to adjust status to permanent residence (get their green card inside the United States), they must be able to establish that the marriage is “bona fide”, meaning real and genuine and not for the sole purpose of obtaining immigration benefits. An immigration officer will usually determine this based on questioning the U.S. citizen, and their foreign husband or wife, about things like: how and when they met; aspects of the home or apartment they live in; whether they have had children; whether they have met each other’s family members, and any other questions relevant to determining if the marriage is real. It is also a good idea for the couple to bring documentation evidencing that they live together as husband and wife, share financial holdings and responsibility jointly, as a husband and wife ordinarily would (or explain why they do not).
How can I know if I am eligible to get my green card in the U.S. if I am married to a U.S. citizen? What if I came to the U.S. legally (with a visa, etc.) but then overstayed? Can I still get my green card in the U.S. if I am married to a U.S. citizen? Or what if I snuck into the country when I came over?
A common issue is whether an individual who is not lawfully residing in the U.S. (undocumented or “out of status”) is eligible to adjust status to permanent residence within the U.S. upon marriage to a U.S. citizen. Generally, U.S. Immigration law makes a distinction between 1) Individuals who are unlawfully present as a result of being lawfully admitted into the U.S. and inspected by an immigration officer upon entry but later overstayed their lawful status (such as visa status), and 2) Those who snuck into the country, or entered without inspection (also called “EWI”).
Individuals who are unlawfully present in the U.S. as a result of being lawfully admitted after being inspected by an immigration officer upon entry, but later overstayed their lawful status are generally permitted to adjust status while in the U.S., and are not required to leave to process their green card application, irrespective of how long they have overstayed their authorized period of stay (unless there are certain other problems with the person’s immigration or criminal history).
However, those who entered without inspection (EWI) are generally not permitted to adjust status and must leave the United States and apply for an Alien Spouse Immigrant Visa (Please see the section below about an exception to this rule). This can be a problematic distinction because if an individual had overstayed their authorized period of time by 180 days, they can be subject to a three-year bar to entering the U.S, and those who overstayed by 365 days or longer can be subject to a 10-year bar. To learn about how these bars can be waived, please see the section about waivers of inadmissibility.
Do husbands and wives of U.S. Citizens have to wait before they can apply for their green card in the United States?
Spouses of U.S. citizens, along with minor unmarried children and parents of U.S. citizens over 21, are considered "immediate relatives" under U.S. Immigration law. This means that they are not subject to the often lengthy backlogs that result from the numerical quota limitations placed upon other degrees of relations to U.S. citizens and spouses and other family members of permanent residents. The result of being an “immediate relative” essentially means that such an eligible individual can apply for adjustment of status to permanent residence right away, without waiting for an immigrant visa number to become available.
However, sometimes problems can arise if a person enters the United States on a temporary or “nonimmigrant” visa classification, and then applies for Adjustment of Status based on marriage soon after an entry from outside of the country, or after changing or extending to such classification. This issue is called “preconceived intent”, and it is a good idea to discuss this with your immigration lawyer, because certain USCIS guidance can create a presumption to believe that someone had the improper preconceived intent even when they did not.
What documents are required to apply for a green card based on marriage in the U.S.?
Required documents for a marriage-based adjustment of status application (and related forms) generally consist of passport photos of both the U.S. citizen and foreign spouse, proof of the citizenship status of the U.S. citizen petitioner, a copy of the marriage certificate, copies of documents evidencing termination of any previous marriages of either the U.S. citizen or foreign spouse, and the appropriate filing fees. What other documents are required must be determined on a case-by-case basis, dependent on the circumstances in each matter. Your immigration attorney will advise you what other documentation is necessary.
How long does USCIS take to make a decision on a marriage green card application and what is the process?
After properly submitting the application to adjust status with the correct forms and documentation, the immigration service will issue receipt notices for all petitions and applications submitted and soon issue a biometrics (fingerprint) notice, for the applicant to appear at a USCIS application support center and be fingerprinted. Several months later (usually) the U.S. citizen petitioning spouse and his or her foreign spouse must attend an interview with an immigration officer who will determine if the marriage is genuine and whether the foreign spouse is ineligible for any reason to adjust status to permanent residence. For example, at the time of this writing, the San Francisco, California Immigration Field Office is taking approximately 3-4 months to schedule the marriage immigration interview. Ask your immigration lawyer how long it is taking where you live at the time you prepare to file your application, as these times can fluctuate.
After I get my marriage green card, will I be a permanent resident or conditional resident? And what do I need to do to remove conditions on residence based on marriage?
If the couple has been married for less than two years at the time the foreign spouse becomes a permanent resident, the period of permanent residence (green card) will expire after two years. This is an additional check against marriage fraud for the purpose of obtaining immigration benefits. If still married and residing together after two years, both spouses must submit a joint petition (Form I-751, Petition to Remove Conditions on Residence) to remove the conditions on residence. This petition must be submitted within the 90-day period immediately preceding the end of the two years of approved conditional residence (ending with the date indicated on the green card that the card is valid through).
If the couple is no longer married when it is time to file Form I-751, the foreign spouse may still be permitted to continue to reside permanently in the U.S. and keep their green card. Individuals in this circumstance should speak to their immigration attorney about the proper manner to proceed as soon as this becomes the case.
What is the process for husbands and wives of U.S. Citizens to get their green card outside of the United States?
The U.S. citizen petitioner must complete the Petition for Alien Relative (I-130) and related forms, and submit them with proof of his or her U.S. citizenship (U.S. passport or birth certificate), proof of termination of previous marriages for both the petitioner (U.S. citizen) and beneficiary (alien spouse), the marriage certificate, and one photograph of each. The prevailing fee for filing the petition must also be remitted. Because of circumstances relevant to each case, your immigration attorney will assist in determining which additional forms and documents may be required.
Upon approval of the Petition, the USCIS Service Center that rendered the adjudication will forward it to the National Visa Center (NVC) for further processing. The NVC then issues fee bills for the Immigrant Visa (Form DS-230) and Affidavit of Support (Form I-864) fees. Once those fees are paid, the NVC will initiate processing of the immigrant visa by providing a packet of instructions (packet 3) to the beneficiary and the beneficiary’s representative (immigration lawyer). It ordinarily includes the form DS-230 Part I (Application for Immigrant Visa and Alien Registration), which must be completed and returned immediately, the form DS-2002 (Instructions for Immigrant Visa Applicants), the instructions for the Affidavit of Support (I-864), the photo instructions, and the information sheet on vaccination requirements. Since December 1997, U.S. immigration law requires all applications for family-based immigrant visas (including spouses) to be accompanied by a contractually binding Affidavit of Support (Form I-864), which has been signed by the petitioner.
Upon receipt of the notification that the beneficiary is in possession of all required documents and completion of all required administrative steps, appointments for the medical examination and the interview at the U.S. consulate or embassy abroad will be set. If all of the documentation submitted is complete and the consular officer determines that the applicant is eligible, the immigrant visa is usually issued within several days after the interview and is ordinarily valid for six months from the date of issuance.
Can children come with their parent beneficiary of the marriage visa petition?
Minor unmarried children (under 21) of the alien spouse ordinarily may accompany their parent and immigrate to the United States, but frequently the U.S. citizen spouse must file a separate petition for their foreign step-child. Your immigration attorney will advise you of the process for including your alien spouse’s minor children.