For many foreign-born persons, the most sought after U.S. immigration benefit is permanent resident status (a green card). One of the most common ways an immigrant will get a green card is through marriage to a U.S. citizen or permanent resident.
Due to a perceived prevalence of people marrying U.S. residents fraudulently in order to obtain green cards, however, these marriages are closely scrutinized by the U.S. government to ensure that they are genuine.
A foreign spouse becomes either an "immediate relative" after marriage to a U.S. citizen or a "preference relative" after marriage to a U.S. permanent resident. In either case, the foreign spouse has fairly rapid access to permanent residency. The process for getting a family-based green card for the spouse of a U.S. citizen or resident is briefly described below.
Warning: The coronavirus or COVID-19 pandemic has created long delays in every part of the immigration process, owing to government office closures to in-person visits both in the U.S. and overseas. Spouses of U.S. citizens are exempt from the immigration bar that Trump issued in April 2020, but that still doesn't solve the problem of closed consulates. Even after things reopen, expect long delays to affect the normal procedures that are 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, that is, made in good faith, and not fraud with the purpose of procuring a green card.
Also note that a few applicants don't 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, one 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 so on.
Applicants are required to submit documentary evidence of a bona fide marriage, such as wedding announcements, 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, typically lasting around two years. Applicants must track their place on this waiting list by checking their "Priority Date" (shown on the USCIS approval notice) and then checking the State Department's monthly Visa Bulletin.
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 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 be at least at 125% of the current poverty level (per guidelines shown on Form I-864P).
The law also requires that the spouse currently reside in the United States. 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.
Even with a sufficient I-864, it's possible for an immigrant to be found inadmissible as a likely public charge. Under Trump-era regulations, the government will look at the "totality" of the immigrant's circumstances, including such factors as education, job skills, and source of health insurance.
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.
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, most likely showing a step-parent relationship (for which the marriage must have taken place before the child's 18th birthday).