Mistakes That Threaten a Marriage Based Visa or Green Card

Here are five common errors that can lead to problems getting a visa or green card based on marriage to a U.S. citizen or green card holder.

Marriage to a U.S. citizen or lawful permanent resident does not, despite popular myth, automatically guarantee a marriage visa (U.S. lawful permanent residence or a green card). Due to the increasing number of marriage frauds, U.S. Citizenship and Immigration Services (USCIS) as well as the U.S. State Department and consulates carefully scrutinize all marriage visa applications.

Assuming your case is the real thing -- not a sham to get a green card -- here are some common mistakes to avoid, any of which could result in your application being denied.

1. Failing to Have Entered Into a Valid Marriage

For purpose of immigration, you must be legally married. Legally married does not, in most cases, mean staying together -- read "Can You Get a Green Card By Common-Law Marriage?" for the few exceptions.

You must not still be married to someone else -- and if you were previously married, will have to provide proof that the marriage ended, for example by submitting death or divorce certificates. Failure to include such proof will, at a minimum, result in your application being delayed while USCIS requests this information from you.

You must be legally married under the laws and customs of the state or country in which you were married. If, for example, your state or country prohibits marriage between certain blood relations or between an underage person and another, you'll need to make sure your marriage does not violate these rules.

You will need to submit evidence of your valid marriage along with the initial visa petition (Form I-130) that the U.S. petitioner must prepare and submit. The best evidence of marriage is your marriage certificate, issued by a government agency. A church document or other unofficial certificate will not be accepted unless you can show that your marriage is nevertheless valid in the place it occurred and the original certificate is unavailable. 

2. Attempting to Apply for Adjustment of Status Without Being Eligible

Many green-card seekers living in the U.S. hope to apply for their green card without leaving the country for what's called "consular processing." However, if the person's latest entry to the U.S. was unlawful, this is a problem. They are not eligible to adjust status, or turn their green card application in to USCIS. (This procedure is limited to people who entered the U.S. legally.) In fact, submitting an adjustment of status application could result in their being placed in removal proceedings.

See our page on adjusting status after marriage for details on who is eligible to use this procedure and what your options are at this point.

3. Attempting to Adjust Status Soon After Using a Tourist Visa or Visa Waiver for U.S. Entry

The "normal" way that the immigration authorities expect spouses to apply for a marriage visa is for the U.S. petitioner to start the process by filing a Form I-130, after which the immigrant communicates with an overseas U.S. consulate and attends an interview there. However, this can take months, during which time the U.S. petitioner is normally living in the U.S. while the immigrant lives in another country.

Out of frustration, some immigrants have tried entering the U.S. on a tourist visa and then adjusting status. Technically, this combination is possible for some people -- you may even have friends who have done this. However, there's a catch. In order for this strategy to work, the immigrant needs to prove that he or she didn't misuse the tourist visa -- that is, commit visa fraud -- by claiming to be a mere visitor when in fact intending to stay and get a U.S. green card. If the immigrant simply came as a tourist and later met the spouse-to-be or decided to married, that's normally okay. The longer the time period between the tourist visa entry and the submission of the green card application.

But if the immigrant enters the U.S. as a supposed tourist and then, within a matter of weeks or a couple months submits a green card application based on marriage, you can expect to be questioned about the immigrant's intentions upon entry -- and then for the case to possibly be denied based on visa fraud (a ground of inadmissibility).

4. Failing to Show Sufficient Financial Support

U.S. immigration laws prohibit the issuance of an immigrant visa to any person who is likely to become a public charge (receive need-based public assistance or welfare). The U.S. citizen or lawful permanent resident spouse must file an Affidavit of Support on Form I-864 to prove that he or she will provide the immigrant any necessary financial support for a period of years to avoid this prospect. Failure to file this Affidavit, or to show sufficient financial resources to maintain the immigrant and the sponsor's household at a level that's at least 125% of the U.S. Poverty Guidelines will result in your application being denied.

5. Failing to Complete the Application Properly

You must fully and properly complete the various application forms. Do not leave any questions unanswered. If a question is not applicable to you, write "N/A" for "not applicable." Make sure that you have entered your personal information correctly. Your name, last name, date of birth, place of birth, country of birth, and so on must match with the details on your passport.

The photos you attach need to meet the government's specifications for size, color, and so on. Do not attempt to take these yourselves -- go to a professional.

Make sure that you submit the completed application form along with the necessary documents to the right USCIS office. Sending it to the wrong USCIS office will only delay your application. You will also need to attach the correct fee. Read the instructions on the USCIS website carefully.

If you are submitting any foreign document in support of your application, you must submit a certified English translation of the document. This must be a full, word-for-word translation, not a summary.

For any questions on the above, see an immigration attorney.

Talk to a Lawyer

Need a lawyer? Start here.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
NOLODRUPAL-web2:DRU1.6.12.2.20161011.41205