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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”).
Green Card through Marriage to a USC
It is well known that marriage to a USC is the fastest and easiest way to get aGreen 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.
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:
- Form I-130, Petition for Alien Relative
- Form I-130A, Supplemental Information for a Spouse Beneficiary
- Form I-864, Affidavit of Support
- Marriage Certificate
- United States Citizenship and Immigration Service (“USCIS”) Filing Fee, and
- 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: - Form I-485, Application to Adjust Status
- Form I-693, Report of Medical Examination and Vaccination Record
- Form I-864, Affidavit of Support
- Form I-765, Application for Employment Authorization
- Form I-131, Application for Travel Document
- Marriage Certificate
- USCIS filing fee
- Valid Passport with U.S. Visa Stamp page
- I-94 Record, and
- 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: - Divorce
- Death of the U.S. Citizen spouse
- The foreign spouse was subjected to physical battering and/or extreme
mental cruelty, and/or - 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:
- Form 601A, Application for Provisional Unlawful Presence Waiver
- Copy of DOS immigrant Visa Processing Fee Receipt
- Copy of Form I-797 indicating approval of I-130 petition
- Application fee
- Evidence proving hardship to Non-US spouse and USC
- Marriage certificate, and
- 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.
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:
- Form DS-260, Application for Immigrant Visa And Alien Registration
- Form I-864, Affidavit of Support
- Form I-693, Report of Medical Examination and Vaccination Record
- Marriage Certificate
- Evidence proving that the marriage, and
- 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.
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:
- Form I-129F, Petition for Alien Fiancé
- Form I-134, Affidavit of Support
- Birth Certificates
- 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: - A valid passport with an expiration date at least six months
- Birth Certificate
- Police Certificate from all places lived since age16
- Form DS-3025, Medical Examination
- Form I-864, Affidavit of Support
- Evidence proving ongoing relationship
- Visa Processing Fee
- Two passport size photos
- 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.
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 Jihi Law Group, LLC.