An overview of the Marriage Green Card process

Published: 06th October 2009
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Most individuals are aware that the application for a United States permanent residency by marriage to a U.S. citizen is one of the fastest ways of obtaining a perment residency in the United States. Unlike most other U.S. immigration situations, a foreign citizen can apply for a green card through marriage to a U.S. 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 eligible to apply for U.S. permanent residency thru marriage to a United States citizen.

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

The first part of the green card via marriage process is for the U.S. citizen spouse to submit an I-130 Immigrant Relative Petition on behalf of the foreign national spouse. The I-130 petition establishes the family relationship between the United States spouse and the foreign spouse.

The second step is for the foreign national spouse to submit a Form I-485 either simultaneously with the I-130 petition or anytime subsequent to the I-130 submission and/or approval. Typically, most I-485 applications are submitted simultaneously with 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 highly important part of the application and is required to be completed by the U.S. spouse in spite of of his or her income. The point of the affidavit of support is that the U.S. government does not want the foreign person 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 required or, in some cases, the income and/or assets of the foreign spouse can be used. The usual situation is that a joint sponsor is used and that individual also completes and submits an Affidavit of Support application in addition to the U.S. citizen spouse. A joint sponsor can be any United States citizen or United States permanent resident. The individual being used as a joint sponsor need not be related to either the U.S. spouse or the foreign spouse.

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

As part of the marriage green card process, the foreign national spouse may submit an application 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 individual the right to lawfully work in the United States while waiting for the adjudication of the application. The travel document or advance parole can be used to travel outside of the U.S. while the green card by marriage application is pending. A couple warnings about travel outside of the United States during the pendency of the green card via marriage application: 1) If you travel outside of the U.S.prior to the approval of 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 United States; and 2) If you travel outside of the U.S., 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 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. Sometime after the biometrics appointment, work authorization and advance parole will arrive. Lastly, a notice will arrive 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 marriage 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 forconditional permanent residency. In such a scenario the foreign spouse will need to apply to remove the conditional nature of the green card within 2 years after becoming a green card holder. Typically, 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 permanent resident of the United States.

In the case of a green card by marriage application, it is highly important that both spouses fully understand their particular scenario and the steps involved in the process. Competent legal advice is essential through all parts of the application process and therefore it is strongly advised that you work with a lawyer experienced in these cases before going forward. A green card is a highly sought after U.S. immigration benefit and something that should be pursued very carefully.

Douglas M. Lightman, Esq. is the principal and founding attorney of Lightman Law Firm LLC, a boutique law firm located in New York City with a focus on U.S. immigration law. The firm focuses on both family immigration and business immigration. Some of the more common services provided by the firm on the family immigration end deal with marriage green card applications, K-1 fiance visas, K-3 marriage visas, immigrant relative petitions, and other family related matters. On the business end, the firm provides services in connection with employment based green card applications, work visas such as the H1B visa, the L-1 visa for intra-company transferees, the O-1 visa for artists and entertainers, the TN visas for Canadians and Mexicans, and visas for investors and traders. The firm also handles various matters relating to citizenship and naturalization.

Please contact us at the following for more information about Lightman Law Firm and U.S. immigration law.

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