Green Card by Marriage - A step by step overview of the adjustment of status process

Published: 06th October 2009
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Most are aware that the application for a United States permanent residency thru marriage to a U.S. citizen is one of the most efficient ways of obtaining a perment residency in the USA. Unlike most other United States immigration situations, a foreign person can apply for a green card thru marriage to a United States citizen, assuming he or she is inside the United States, even if he or she has unlawful presence in the U.S. or has overstayed a visa. However, there are limited situations where one may not be eligible to apply for United States permanent residency through the adjustment of status process.

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

The first part of the green card through marriage 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 petition establishes the family relationship between the United States spouse and the foreign spouse.

The second part is for the foreign spouse to submit an I-485 Adjustment of Status application either simultaneously with the I-130 petition or anytime subsequent to the I-130 submission and/or approval. Typically, most I-485 applications are sent 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 USCIS designated surgeon 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 submitted with the marriage green card application. The Affidavit of Support is a highly important aspect of the application and must be completed by the U.S. spouse regardless of his or her income. The idea behind the affidavit of support is that the United States government does not want the foreign spouse 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 affidavit of support minimum income requirement, which is not uncommon, then either a joint sponsor will be required or, in some situations, the income and/or assets of the foreign spouse can be used. The typical situation is that a joint sponsor is used and that individual 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 permanent resident. He or she 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 United States citizen, has earned 40 working quarters (equivalent to approximately 10 years of working), dies, or permanently leaves the U.S.

As part of the green card via marriage process, the foreign national spouse may apply for work authorization and a travel document while the adjustment of status application is pending. Work authorization gives the foreign individual the right to lawfully work in the U.S. 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 adjustment of status application is pending. A couple warnings about travel outside of the U.S. during the pendency of the green card via marriage application: 1) If you travel outside of the U.S.prior to 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 filing the applications receipt notices will arrive from USCIS confirming receipt of the applications. Additionally, a biometrics appointment for the fingerprinting and photographing of the foreign 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 lawyer, are well informed regarding the process, and have all the necessary supporting documents, you have nothing to fear with a well-prepared case. It is very important to work closely with your lawyer prior 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 the marriage is less than 2 years old at the time of the interview then the foreign spouse will receivea conditional green card. In this case the foreign spouse must apply to remove the conditional nature of the permanent residency within two years after becoming a perment resident. Typically, one is eligible to submit an application 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 United States.

In the case of a marriage green card application, it is essential that both spouses fully understand their particular situation and the steps involved in the process. Competent legal counsel is essential through all parts of the application process and therefore it is strongly advised that you work with a lawyer experienced in these matters before moving forward. Permanent residency 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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