Obtaining Permanent Residency (Green Card) Through Marriage

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 by marrying a U.S. citizen or permanent resident who will serve as their sponsor.

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 application process for each of these is slightly different, as we'll describe below.

Step One: Get Married!

If you and your U.S. sweetheart are not yet married, you do have some choices regarding what to do next and which application process to follow; choices that might impact how quickly you can complete the process or gain entry to the United States. Your options include:

• getting married (either overseas or in the United States) and seeking an immigrant visa for the foreign-born spouse and any children to enter the United States as lawful permanent residents; or if you're already lawfully in the United States, adjusting status here without departing, and
• getting a nonimmigrant (K-1) visa to enter the U.S. as a fiancé (plus K-4 visas for any children), then after the marriage, the foreign-born spouse applies to adjust status to become a permanent resident.

Here, we'll focus on the first option. The second is discussed separately, in Who Is Eligible for a K-1 Fiancé Visa?. In the meantime, you'll find a summary of the comparative advantages to each application process below.

Advantages of a Marriage-Based Immigrant Visa

A marriage-based immigrant visa could be best for you if you're interested in these positive aspects of the process:

• A marriage-based immigrant visa is approximately $1,000 cheaper overall than a K-1 visa.
• You can marry anywhere in the world before applying for the immigrant visa. And you can get married tomorrow, if you wish, rather than waiting the many months it will take to get a K-1 visa.
• Upon entry to the U.S., the immigrant will immediately qualify for a green card, and be able to start working.
• If the process gets dragged out and the immigrant enters the U.S. more than two years after your wedding, they won't have to spend time as a conditional resident (which has a two-year expiration date unless you take further action by filing USCIS Form I-751), but will immediately receive permanent resident status.

Advantages of a K-1 Fiancé Visa

Your decision might lean toward starting the immigration process with a K-1 fiancé visa based on these pluses:

• A K-1 visa typically gets the intending immigrant into the U.S. faster, by a factor of months, than a marriage-based immigrant visa (though additional processing will be required before that spouse receives a U.S. green card).
• The K-1 is a natural choice if you want to hold your wedding in the United States (though doing so and leaving afterwards to pursue an immigrant visa from abroad is also an option).
• The K-1 could overcome barriers you might face to marrying in your home country (for example, if same-sex marriage is illegal there).
• If the would-be immigrant wants to bring children who are over 18 but under 21, a K-1 is the only option to get them green cards at the same time as the immigrant (since, for a marriage-based visa, the children must be under 18 to immigrate as stepchildren).

Step Two of Applying for Immigrant Visa: U.S. Permanent Resident or Citizen Files I-130 Petition

Assuming the immigrant wishes to continue on to become a lawful permanent resident based on an existing marriage, the U.S. citizen spouse will need to file USCIS Form I-130 with U.S. Citizenship and Immigration Services (USCIS). This petition serves to establish the relationship of the foreign-born spouse to a U.S. citizen or resident. The submission involves showing that the relationship is both legally valid (by presenting a marriage certificate) and bona fide; that is, not entered into in bad faith, as a fraud to obtain a green card.

A few applicants don't actually need to file the I-130 as a separate step one. If the petitioning spouse is a U.S. citizen and the would-be immigrant is living lawfully in the United States, or made a lawful entry to this country, the couple can submit a complete packet of the "adjustment of status" application materials to USCIS (described below). The I-130 is combined with the I-485 and supporting documents and filed concurrently.

All applicants are required to submit, along with the I-130, 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.

Step Three (For Spouses of U.S. Permanent Residents Only): Await a Current Priority Date

As "preference relatives," spouses of U.S. green card holders are subject to annual limits on allotments of green cards. A long waiting list usually develops, typically lasting from two to four years. Applicants can 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.

Step Four: Consular Processing or Adjustment of Status

The immigrant might have a choice with regard to the application process going forward:

• An immigrant who is overseas will use "consular processing," which involves communicating with the National Visa Center (NVC) and then interviewing at a local U.S. embassy or consulate to be approved for an immigrant visa and U.S. entry. (Only upon entry does the immigrant actually become a U.S. permanent resident.)
• An immigrant who is in the U.S. might have a choice between leaving the U.S. for consular processing and staying, to do an "adjustment of status." However, the requirements for who can apply to adjust status are narrow. The person must be either lawfully in the U.S. (most likely with a temporary visa and unexpired I-94); in the United States after a lawful, non-fraudulent entry (regardless of any overstay) and be marrying a U.S. citizen; or fall under some old laws allowing adjustment of status (rare; consult an attorney for details).

Consular Processing

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 visa interview, the immigrant will receive an immigrant visa for U.S. entry.

Adjustment of Status

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.

Proving Financial Capacity

In either of the cases described above, an important part of the process will be for the petitioning U.S. spouse to prove to the U.S. government an ability to provide sufficient financial support to the immigrant, so as to prevent them from relying on government assistance.

The most important evidence for this is given on USCIS Form I-864 Affidavit of Support. It's required in almost every case, though there are some exemptions, and some sponsors can file a shorter, simpler version of the form. The sponsor will also need to include supporting documents, such as evidence of taxes paid and income earned, even if their income isn't high enough to provide sufficient support. 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).

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.

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.

Step Five for Some: Two-Year Marriage Requirement and Conditional 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 naturalized U.S. citizenship.

How Children of Immigrating Spouse Can Also Obtain Green Cards Based on the Parents' Marriage

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.)

Do We Need to Hire an Immigration Lawyer?

Given the complexities inherent in this application process, the important choices to be made, and the natural desire to avoid delays and frustration, many applicants find their best bet is to seek the assistance of an experienced U.S. immigration attorney. The attorney can analyze your family's personal situation, give up-to-date information on government delays and policies, prepare the forms for your signature, and monitor the process to a successful conclusion.