Marriage Based Green Card

Marriage-Based Green Card

If you are married to a U.S. citizen, you may qualify for a marriage-based green card. The rules surrounding marriage and green cards are detailed and complex, and largely depend upon whether the marriage was to a citizen or legal permanent resident and if they entered the country legally.

In order to obtain immigration benefits available to a spouse, there must be a valid marriage between the parties. Unlike many other immigration benefits, you can apply for a marriage green card even if you have unlawful presence in the U.S. or you have overstayed a visa.

If you prefer a visual guide, don’t miss our complete Marriage-Based Green Card Interview Guide:

Married to a U.S. Citizen

The husband or wife of a U.S. citizen is considered an “immediate relative” by law which means they are not held against any quota restrictions for receiving green cards via marriage. To start the process, the citizen would first need to submit an I-130 on behalf of their spouse and if they entered the U.S legally, they can file the I-485 adjustment of status in order to stay within the U.S.

Typically, the spouse will be issued an Employment Authorization Document (EAD) within a 90-day window and in some cases may be approved to travel overseas. If a green card is granted to a marriage that is less than 2 years old, a 2-year time limit will be imposed on the card. To receive a ten-year green card the couple needs to submit Form I-751 within the 90-day period before the expiration of the initial green card.

Married to a Permanent Resident

In relation to green card applications based on marriages to citizens, there are more who fall into the category of marriages to U.S. permanent residents than married to a citizen. For that reason, the demand is often very high. As there are some risks involved in getting a green card by marriage application, our immigration attorneys review all cases very carefully to ensure a successful result.

One of the most important parts of the marriage-based green card process, which we can help you with, is the gathering and preparation of the application and supporting documents. In most situations, a marriage is valid for immigration purpose if it is recognized by the law of the state where it occurs.

However, a legally valid marriage may still be disregarded if it is found to be a sham marriage, entered into by the parties to obtain immigration benefits and without any intention to live together as husband and wife.

Although getting a green card through marriage can often be the easiest way to obtain residency for a non-U.S. citizen, approval is not automatic. U.S. citizens applying for a fiancée visa or marriage green card must be aware that immigration officials will scrutinize their applications to ensure that the marriage is legitimate and bona fide, and not for the sole purpose of gaining immigration benefits.

The citizen and the foreign spouse must prove that the marriage is bona fide. If the citizen and foreign spouse have been married less than 2 years at the time the spouse becomes a permanent resident, a conditional 2-year green card will be issued.

How Can the Conditions Be Removed?

If you have received your green card through marriage and wish to remove the conditions after two years, you will need to submit an I-751 Petition to Remove Conditions and pay the $595 filing fee along with the $85 biometrics fee.

The USCIS requires you to submit the I-751 at least 90 days before the end of your two-year period. If you don’t do so, you may find yourself out of status when your marriage-based green card expires, which could have dire consequences for future immigration endeavors.

Marriage-Based Green Card Process

The first step in a marriage-based green card process is for the petitioning spouse (citizen or permanent resident) to file an I-130, Petition for Alien Relative with the USCIS. After the I-130 approval, the next steps will depend on whether the beneficiary is staying in the U.S. or is living abroad.

If the Beneficiary Is in the United States

After the approval of the I-130, the beneficiary will need to file an I-485, Petition to Adjust Status with the USCIS. The I-485 must be submitted with supporting evidence, which includes a birth certificate, proof of nationality, and proof of lawful entry to the U.S. (I-94 travel record). 

NOTE: If the petitioner is a U.S. citizen and the beneficiary is in the U.S., both the I-130 and I-485 can be filed concurrently.

After you’ve filed the initial paperwork, your green card interview will be scheduled approximately 3-4 months later.

If the Beneficiary is Outside the United States

For individuals seeking a green card while outside the United States, you can first become a permanent resident through the process of consular processing. Consular processing is when the USCIS issues a visa on approved Form I-130. Once the USCIS has approved your I-130 petition, it will be sent to the National Visa Center (NVC). The NVC will then assign a case number for the petition and notify the beneficiary spouse to complete the DS-261, Choice of Address and Agent (NOTE: If you already have an attorney, you will not be asked to complete DS-261). 

The NVC will then start the case processing by notifying both the beneficiary and petitioner to pay the appropriate fees. After the payment, the NVC will ask you to submit the needed documents for an immigrant visa including the Affidavit of Support, civil documents, application forms, and any other items deemed necessary for the case.

Consular processing fees for a marriage-based green card include a visa application processing fee of $325 and a medical examination fee, which varies. Other costs may include photocopying and translation charges. 

Required Documents for a Marriage-Based Green Card Through Consular Processing

The documents may vary depending on each individual’s case. However, the following are the generally required documents for a marriage-based green card application:

  • Passport valid for at least six months beyond your planned date of entry into the U.S. Keep in mind that, in some cases, a longer validity may be required. You will need to check with the embassy or consulate in your country to be sure. 
  • Affidavit of Support: The I-864 Affidavit of Support must be completed by the petitioner to show that they have the ability to support the beneficiary financially when they start living in the U.S. The petitioner must prove that his or her income is at least 25% higher than the HHS poverty guideline.
  • DS-260, Immigrant Visa Alien Registration Application
  • Two (2) copies of 2×2 photographs (they must follow these specifications).
  • Beneficiary’s Civil Documents: This includes birth and marriage certificates, court and prison records, marriage termination documents, military records, and/or police certificates.
  • Completed immigration medical examination forms

Once the NVC is convinced that all the necessary documents and procedures have been completed, a visa interview will be scheduled. The beneficiary, petitioner, and attorney, if applicable, will receive notifications containing the time, date, venue, instructions, and the required documents for the interview.

If after the interview, you are issued an immigrant visa, the embassy or consulate will give you your passport containing your immigrant visa. You will also receive a sealed packet containing the documents you provided. Do not open the sealed packet. It should only be opened by a U.S. immigration official when you arrive in the United States. Upon reaching the port of entry into the U.S., you will undergo a screening by the Customs and Border Protection (CBP) officials to determine your eligibility to enter the U.S. If you are admitted as a permanent resident, your I-551, which is your green card, will be mailed to you. 

What are the Legal Requirements for a Marriage-Based Green Card?

The marriage-based green card is one of the most scrutinized U.S. immigrant visas for processing. To qualify, you must present your case to the immigration officials to prove you meet the following legal requirements:

  • You must be legally married: A marriage can only be considered legal if the government in the country where the marriage took place officially recognizes it. Therefore, you will need to prove this by presenting your marriage records officially issued by the government.
  • Previous marriage(s) must have been legally terminated: Neither the petitioner nor the beneficiary can have another active marriage. If any or both of you have previously married, you must provide proof showing that the previous marriage has been terminated by legal means. The required evidence for this includes a divorce or death certificate. 
  • Your marriage must be bona fide: A marriage is considered bona fide if the two parties entered into it with the intention to start a family together. You will be asked many questions to ascertain that the marriage isn’t a sham entered into in order to fraudulently obtain a permanent residence. A series of documents will also be required to show how your relationship evolved to become a marriage. If your marriage was done in secret and didn’t involve relatives and friends, this may be a red flag. See our complete guide on how to prove that your marriage is bona fide when processing a green card.
  • The sponsor must have U.S. citizenship or a lawful permanent resident card

Marriage-Based Green Card Interview Questions

Here are some sample marriage-based green card interview questions you may be asked during your meeting. Note that these are some possible marriage-based green card questions and in no way can we guarantee that these will be the exact inquiries:

  • In what circumstance did you both meet?
  • What sorts of hobbies/interests do you have in common?
  • At what point did your relationship transition into a romantic one?
  • How long did you know each other before deciding to get married?
  • What type of routine do you have at home? For example, who usually wakes up first?
  • Who is in charge of the household chores?
  • What is your spouse’s monthly salary? Who contributes to which bills?

There is a long list of potential marriage green card interview questions that may come up during your meeting. It’s best to speak openly and honestly when answering.

Marriage-Based Green Card

Ten Tips for a Marriage-Based Green Card Interview

We know how stressful the interview process can be, so take a look at these ten tips to make the best of your situation.

  1. Be punctual for your scheduled interview. It’s always advised to arrive early (at least 30 minutes prior) to your meeting with a USCIS officer.
  2. Wear professional and/or conservative clothing. First impressions matter in a wide range of circumstances, including your green card marriage interview. Dress in professional or conservative attire, as you would for a job interview.
  3. Be prepared to answer all types of questions. There’s an endless array of questions that the officer may ask you to validate your relationship. Don’t be caught off-guard if you aren’t sure about how to answer a question. Be open, honest and instead of guessing it’s better to say “I’m not sure” or “I do not know”.
  4. Come with a calm and organized demeanor. While the process may seem complicated or stressful, it’s best to approach the interview with a calm and organized outlook. The USCIS officer will ask you the appropriate questions and it’ll be over before you know it!
  5. No need to memorize facts. Assuming you have a bona fide marriage there’s nothing you need to memorize or learn prior to the interview. You should be able to answer basic questions about your relationship with your spouse.
  6. Act normally; not overly affectionate or uncomfortable. Some couples think they have to behave overly affectionate to prove their relationship to the officer. USCIS officials are trained to recognize signs that individuals are not behaving normally. This type of in-authenticity is was triggers a red flag, so it’s best to just behave normally.
  7. Don’t panic if you are separated. In some scenarios, the officer may want to question you and your spouse separately. If that happens, don’t panic. Simply remain calm and address the officer’s questions as honestly as possible.
  8. Remember to bring the necessary paperwork. It should go without saying but bring any proof of your relationship including photos from the wedding, bank statements, children’s birth certificates (if applicable), etc. Consult with your attorney regarding any additional paperwork necessary.
  9. Confide in your attorney. Are you still not confident on the date of your interview? Confide in your attorney any concerns or worries you are having. Your attorney knows your case best, so trust that they’ll guide you accordingly.
  10. Review additional resources. Are you still uneasy about the process? Check out additional marriage related green card resources, located at the bottom of the page!

Green Card Through Marriage Processing Time

Once you file the I-130 petition, the USCIS will assign your priority date, which is the day that they received your petition. The petition itself takes about six months to process, but you will not be able to get your green card until your priority date is current.

Each year, the USCIS only allows a certain number of immigrant visas (green cards) to be issued. If the number of applicants exceeds the number of available visa numbers, then a backlog will build. Unfortunately, there is usually a backlog for each marriage-based green card category.

The categories are divided into preference levels which are further divided according to your country of origin. Be sure to keep an eye on the monthly visa bulletin provided by the Department of State to see if the dates match or pass your priority date. When that happens, your date will be current and you can take one of two actions to move forward:

  • Adjustment of Status – this involves simply filing an I-485 form with the USCIS and waiting an average of six months for it to be processed. If the form is approved, your status will automatically be adjusted to legal permanent residency.
  • Consular Processing – for this, you will need to travel to a U.S. consulate or embassy in your home country that is designated by the USCIS. You will need to schedule an appointment and participate in a one-on-one interview with a consular officer.

Keep in mind that, if you are already in the U.S. under a nonimmigrant visa when your priority date is current, you can choose to adjust your status or go through consular processing. However, if you are outside the U.S. you must choose consular processing.

If you are presented with the choice, be sure to consult with your immigration attorney before making any decisions. While adjusting your status may seem like the more convenient choice, it is often the more expensive option and can also take more time to process, thus delaying your green card by marriage.

Can I Use Premium Processing?

Unfortunately, the premium processing service is only available for those applying for green cards and visas that use the I-129 and I-140 petitions. Therefore, you cannot shorten the green card through marriage processing time with this service.

How Much Does A Marriage-Based Green Card Cost?

The cost involved with obtaining a green card through marriage varies depending on your age and immigration circumstances. The USCIS lists the green card fee cost as:

It is important to note that these are only the mandatory costs required by the USCIS. You should also consider any travel costs as well as attorney fees when evaluating the total cost of your green card. See our immigration lawyer fees for marriage-based green cards.

K-1 Visa to Green Card

If you have a K class visa and wish to transition to a green card through marriage, then here is the process:

  1. Have your spouse file an I-130 petition on your behalf
  2. Wait until your petition is approved and your priority date is current with the final action dates give in the visa bulletin.
  3. File the I-485 form to have your K class nonimmigrant status adjusted to immigrant green card status.

Remember, if you are still in the U.S. under K status, you may not need to go through consular processing. However, the USCIS reserves the right to mandate a consular interview to any prospective immigrant.

Following-To-Join Benefits

In some situations, your children may be candidates for follow-to-join benefits. If you have obtained your green card through an immigrant visa preference level but your children are not permanent residents, you can submit the following items to the USCIS to allow them to join you in the U.S. without filing a separate petition on their behalf:

  • An I-824 Application for Action on an Approved Petition
  • A copy of your I-130 that was used for your green card
  • A copy of the I-797 Notice of Action that you received for your green card petition
  • A copy of your green card

Marriage-Based Green Card Denial

If you get your green card by marriage denied, the USICIS likely included the reasoning for the denial in the letter. However, if you wish to avoid a denial, here are some of the common reasons it may occur.

  • Your green card marriage was not seen as bona fide. For the most part, if your marriage is legitimate and you and your spouse were not married for the sole purpose of obtaining a green card, you should not have to worry about this. However, if this is the case, you very well may experience obstacles in the interview process.
  • Your history caused issues. This can happen if you have a problematic criminal background or if you have had a history of violating your immigration status in the past. If you have ever been considered “out of status”, that may preclude you from getting a green card by marriage.
  • There were errors on your petition. It doesn’t matter whether there is information that is inconsistent, incomplete, or incorrect, it all causes problems on your petition. However, in these cases, the USCIS will often simply reject the petition rather than deny it. A rejection means that it failed an initial phase evaluating whether or not all of the information was present and accurate. In these cases, you can often simply correct the mistake and refile the petition with a new filing fee.

If your marriage-based green card petition is denied, the denial letter should include instructions for appealing the decision if that is your decision. If you choose to do so, be sure to have an immigration attorney helping you, as the appeals process is a delicate legal issue.

Marriage-Based Green Card Frequently Asked Questions

I want to join my spouse in the U.S. while my green card is being processed. Which visa can I apply for?

In the interim, you can join your spouse in the U.S. while your green card through marriage is being processed by applying for and obtaining a K-3 visa.

What is the age requirement to sponsor a marriage-based green card?

There is no stipulated minimum age for a marriage-based green card petitioner. However, you must be at least 18 years old and have a residence in the United States before you can sign the Affidavit of Support Form. The affidavit form is one of the mandatory items for a marriage-based green card application, so the minimum age is effectively 18.

What should I do if I was a permanent resident when I filed a green card petition for my foreign spouse but now I am a citizen?

You will need to upgrade the petition you filed earlier from an F2 green card (family second preference) to the immediate relative (IR) category. You can do this by sending proof of your citizenship to the NVC. This will expedite the green card process, as higher priority is given to immediate relative applicants.

How long do I have to wait to apply for a green card after marrying my spouse?

You don’t have to wait for any particular period before applying for a green card. As soon as you are legally married, you can start your green card process, regardless of your location.

What happens if they divorce before the end of the 2 year period?

If a divorce occurs before the 2 year period ends, the foreign-born spouse is advised to file Form I-751 in order to apply for a “good faith marriage waiver.”

NOTE: Apart from the spouse, unmarried children under the age of 21 and parents of U.S. citizens (over 21) may apply for a green card as an immediate relative.

Hire an Immigration Lawyer for Your Green Card Case

The burden of proof to establish the legitimacy of the marriage falls upon the applicant. An experienced attorney can assist you in this task, both in preparing the application correctly and also advising the applicant, as to what kind of documents should be brought to the interview to increase the likelihood of success.

The immigration attorneys at the SGM Law Group have significant experience in all aspects of the marriage-based immigration process. Our South Florida Immigration Lawyers have successfully handled dozens of fiancée visa and marriage immigration cases.

We have assisted our clients through every step of the process including completing the application forms correctly, preparing and gathering documents and necessary evidence, preparing and accompanying you and your spouse to the final immigration interview.

Our experienced immigration attorneys can advise you on what to expect when going through this process. To learn how we can help you apply for a green card through marriage, fill out our Immigration Consultation form.

Again, it’s best to explore all of your options before beginning the application process. Contact an immigration attorney to learn what course of action is best for you and your spouse.

MARRIAGE GREEN CARD – RELATED PAGES