For many foreign-born persons, the most sought after U.S. immigration benefit is permanent resident status (a green card). And one of the most common and speedy ways an immigrant can obtain a green card is through marriage to a U.S. citizen or permanent resident.
A foreign spouse becomes either what's called an "immediate relative" after marriage to a U.S. citizen or a "preference relative" after marriage to a U.S. permanent resident. The process for getting a family-based green card for the spouse of a U.S. citizen or resident is briefly described below.
Filing USCIS Form I-130 with U.S. Citizenship and Immigration Services (USCIS) is the first step, so as to establish the relationship of the foreign-born spouse to a U.S. citizen or resident. This involves showing that the relationship is both legally valid (by presenting a marriage certificate) and bona fide, not entered into in bad faith, as a fraud to obtain a green card.
A a few applicants don't actually need to file the I-130 as a separate step one. If the spouse is a U.S. citizen and the would-be immigrant is living lawfully in the U.S., or made a lawful entry to this country, the couple can submit a complete packet of "adjustment of status" application materials to USCIS (described below). The I-130 is combined with the I-485 and supporting documents.
Applicants are required to submit documentary evidence of a bona fide marriage, such as wedding announcements and photos, banking and insurance accounts, joint auto registration, children's birth certificates, and joint credit card statements if available.
With any luck, USCIS will approve the I-130 petition, and the case will move forward.
As "preference relatives," spouses of U.S. green card holders are subject to annual limits on allotments of green cards. A long waiting list has developed, often lasting up to two years. (In recent years, however, there has not always been a wait in this category, known as "F2A.")
The immigrant might have a choice with regard to the application process going forward:
With consular processing, the immigrant will be guided through the application process by the NVC and consulate, and have to supply various forms and documents to them, undergo a medical exam, and ultimately attend an interview and pay various visa fees. The U.S. spouse need not attend the interview, but the immigrant will have to answer questions about whether the marriage is bona fide. At or soon after the interview, the immigrant will receive an immigrant visa for U.S. entry.
With adjustment of status, the immigrant will need to either wait for USCIS approval of Form I-130 and then make a copy of that notice to accompany Form I-485 and related forms and documents, including a medical exam report; or if filing the I-130 concurrently (described above) submit the whole packet. This is done by mail, and must include a fee payment.
After this, USCIS will call the person in for biometrics (fingerprinting) and later an interview at a local USCIS office. The U.S. spouse must accompany the immigrant to this interview, and the two will be questioned about the bona fides of their marriage. At or soon after the adjustment interview, you should be granted your permanent resident status.
Where possible, most immigrants tend to prefer adjustment of status. That's especially true because it avoids an inadmissibility issue faced by applicants going through consular processing, in which any U.S. overstay of 180 days or more can be penalized with a bar on returning to the U.S., of several years.
An important part of this process is that the petitioning U.S. spouse must prove to the U.S. government an ability to provide sufficient financial support to the immigrant, so that he or she won't need to rely on government assistance.
The most important evidence for this is given on USCIS Form I-864 Affidavit of Support. This form is required in every case, along with supporting documents (such as evidence of tax paid and income earned), even if the sponsor's income isn't high enough. The sponsor's household income must, in most cases, be at least at 125% of the current poverty level (per guidelines shown on Form I-864P).
The law also requires that the U.S. spouse currently reside in the United States in order to serve as a sponsor. U.S. spouses living overseas will have to show plans to move back in the near future.
When the U.S. sponsor's income isn't high enough, high-value assets can sometimes be used to fill the gap, or joint sponsors can sign onto the support obligation. Even with all of this, however, it's possible for the U.S. government to decide that the immigrant is likely to become a "public charge" (need government assistance) and deny the green card.
In the case of couples whose approval for adjustment of status or entry to the U.S. on an immigrant visa occurs PRIOR to their two-year marriage anniversary, USCIS will issue a "conditional green card."
This will expire in two years unless the couple takes steps to remove the conditions, by filing USCIS Form I-751 and supporting documents to show that the marriage is ongoing and genuine, and not simply a means of gaining permanent U.S. residence. Assuming those steps are taken, the conditional residence is turned into permanent residence, and the immigrant can move on toward eligibility for U.S. citizenship.
In most but not all cases, children of the foreign-born spouse will be eligible to apply for permanent residence along with the parent.
If the U.S. parent is a permanent resident, unmarried children under age 21 can ride along on the parent's application as "derivatives."
If the U.S. parent is a citizen, each child will need a separate I-130 petition filed for them, most likely showing a step-parent relationship (for which the marriage must have taken place before the child's 18th birthday).
After approval of the relevant I-130, the children's cases will move forward along with the parents'. If the parent is a conditional resident, the children will also receive conditional residence, and ideally need to be included on the parent's I-751 application in approximately two years. (It is possible for children to file separately, however, as sometimes becomes necessary in situations like a parental divorce.)