Marriage Based Green Card Basics

1. Introduction

Marriage-based green cards allow foreign citizens to lawfully and permanently live and work in the U.S. with their U.S. citizen or U.S. permanent resident spouse. While marriage-based green cards are relatively the fastest way for a foreigner to obtain permanent residency, the process surrounding it is still complex and stringent, and the couple must prove that they have a bona fide marriage.

Marriage-Based Green Card Eligibility

To be eligible for a Green Card based on a marriage to a U.S. Citizen or U.S. permanent resident, the marriage must be bona fide which means you have to show proof to USCIS that the marital relationship is legitimate and sincere. USCIS will look for evidence that you live and behave as a married couple and a marriage certificate will not be sufficient.

Furthermore, you have to show sufficient income or assets to establish that the foreign spouse will not become a public charge. The foreign spouse must also be eligible for the green card. For example, certain past criminal violations, security issues or immigration violation could pose a problem.

– Married to a U.S. Citizen

The spouse of a U.S. citizen is considered an immediate relative. This means that they’re not subject to the quota system or a “priority date”, bypassing the waiting process that an immigration visa typically entails for many other categories.

– Married to a U.S. Permanent Resident

The spouse of a permanent U.S. resident (a green card holder) can also obtain a green card as a preference relative, they’re subject to the quota system and requisite waiting period per their priority date.

2. Criteria to demonstrate a bona fide marriage:

You have to show that you are living together, taking vacations together, attending family events together.
You should both hold yourselves out to the world as a married couple, you are financially tied together such as filing taxes together, having joint bank accounts, and insurance policies, etc.

3. Public charge issue:

When you sponsor your foreign spouse for a green card you are required to establish that he or she will not become a public charge or will not become reliant on public money or benefits.

4. Proof you will need:

You will have to demonstrate that either you or your spouse have sufficient income or assets, or that you have a joint sponsor for this purpose.
Income/assets are based on HHS Poverty Guidelines for Affidavit of Support and your household size and are published by USCIS. If your income is less than the required, but you have assets, you will need to show bearing 5 times the value of the income shortfall.
If you and your spouse are not able to meet any of these, you can have a joint sponsor who has sufficient income or assets, such as a parent or sibling.

5. Is your spouse eligible?

If the foreign spouse has any past criminal or security issues you should consult an immigration lawyer and evaluate the best way to proceed.
Further, in case of past immigration violations, some violations may not be an issue, and others may require waivers, so once again, you should consult an immigration lawyer, and evaluate the best way to proceed.
Many of these issues are very complex and beyond the scope of this introductory, however, it is important to understand that if you have any such issue, you should proceed with caution and preparation.

6. The Process

To begin the application, the petitioner (the U.S. citizen or permanent resident) must submit an I-130 form along with supporting evidence. The succeeding steps will depend on whether the beneficiary resides in the U.S. or not. In cases where the foreign spouse is in the US, both the I-130 and the AOS can be done concurrently.

7. The Process for a Foreign Spouse Residing in the U.S.

A beneficiary who is present in the U.S. is eligible to file for permanent residence from within the U.S., also called Adjustment of Status, if they:

Are admissible under U.S. immigration laws
Have been inspected and paroled/inspected and admitted by an immigration officer
Get approval for the I-130 petition
Properly file Form I-485
Submit the necessary forms and supporting documents

Forms

I-130 (Petition for Foreign Relative)

This is the first form that must be submitted in a marriage-based green card application.

I-130A (Supplemental Information)

With this form, the beneficiary indicates their residential and employment background for the last five years. It must be submitted along with the I-130.

I-639 (Medical Record)

This form will be filled out by a USCIS-authorized medical doctor (called a Civil Surgeon) after conducting a medical examination of the beneficiary, and assesses the beneficiary’s admissibility for a green card based on their health as required by immigration laws. According to immigration laws in the U.S., a beneficiary is inadmissible if they lack the required vaccinations or have a communicable disease that endangers the public. Those with evidence of drug misuse or a history of harmful mental or physical behavior may also be inadmissible to the U.S.

I-864 (Affidavit of Support)

This form serves as an assurance to the U.S. government that the petitioner can provide for their spouse financially, and that their spouse will not be reliant on government support after becoming a permanent resident.

I-485 (Form for Permanent Residence)

This petition allows a beneficiary to adjust their status to a permanent resident.

I-765 (Form for Employment Authorization)

The USCIS grants a non-mandatory Employment Authorization Document to petitioners with a pending I-485. Since the approval process for the I-485 takes from months to even over a year, beneficiaries may file for temporary employment authorization (I-765) in the meantime.

I-131 (Application for Travel Document)

If the beneficiary needs to travel outside the U.S., they must file Form I-131. In the event that the beneficiary fails to file the form and secure a valid travel document while their I-485 is still pending, the USCIS may terminate their I-485 application, with some exceptions.

Required Documents

Marriage Certificate

This is proof of the validity of the couple’s marriage.

Divorce Decree, Annulment Decree, or Death Certification (if applicable)

This is to prove that past marriage/s that any of the spouses has had is legally terminated.

Proof of Name Change

If the spouse changed names through marriage, they must submit a marriage certificate. For reasons outside marriage, they must present a court order.

Birth Certificate

A copy is accepted, but the original is required for the interview.

I-94

Issued by the Customs and Border Protection, this serves as evidence that the beneficiary has been admitted as a foreigner in the U.S.

Proof of U.S. Citizenship or Green card (for petitioner spouse)

This is to validate their status as a U.S. citizen or green card holder.

Criminal Record (if applicable)

If the beneficiary was convicted in the past, they must provide their criminal record. It’s advised to consult an attorney in this matter.

Other Evidence of a Bona-Fide Marriage

Since the basis of this Green Card application is the marriage to a U.S. citizen or permanent resident, various types of evidence is needs to establish that the marriage is bona fide, including financial evidence and personal evidence.

8. The Process for a Foreign Spouse Residing Outside the U.S.

A marriage-based green card applicant outside the U.S. is eligible for permanent residence by:

Getting their Form I-130 approved by USCIS
Completing the National Visa Center (NVC) process
Going through consular processing

Required Documents (Consular Processing)

I-130

The petitioner must submit Form I-130 on behalf of their spouse who is outside the U.S. Once the form is approved, it will be processed by the National Visa Center, which will notify the couple about the status of their petition.

The following documents must be submitted along with Form I-130:

I-864 (Affidavit of Support)

This includes the Affidavit of Support form and documents showing evidence of the petitioner’s financial status, such as tax transcripts and proof of assets/income.

DS-260 (Immigrant Visa Application Form)

The beneficiary must complete and submit this form online.

Civil Documents

These include marriage certificates, birth certificates, and police certificates. Divorce decrees, annulment decrees, or death certifications are also included, if applicable. Additionally, the beneficiary must present prison records and military records, if applicable.

Evidence for Name Change

A marriage certificate is required if a spouse changed names through marriage. Meanwhile, for reasons outside marriage, court orders are needed.

Valid Passport and Passport-Sized Photos

The specifications of the photos are indicated in the form to be used.

Other Evidence of a Bona-Fide Marriage

9. Marriage-Based Green Card Government Fees

The government fees vary depending on if the beneficiary is in the U.S. or not, and are subject to change. Here is a breakdown of the government fees:

Form I-130: $535
Form I-485: $1,140 (for beneficiaries in the U.S.)
Form I-864: $120 (for beneficiaries abroad when I-864 is filed in the U.S.)
Form I-765: No fee when filed based on an I-485 (for beneficiaries in the U.S.)
Form I-131: No fee when filed based on an I-485 (for beneficiaries in the U.S.)
Biometrics: $85 (for beneficiaries in the U.S.)
State Department Processing Fee: $325 (for beneficiaries abroad)
U.S. Immigrant Fee: $220 (for beneficiaries abroad)
Medical Examination Fee: Depends on the medical examiner (usually ranges from $500 to $800), excluding the cost of any required vaccinations or medical treatment needed

10. How long does the process take?

It depends on many factors, such as whether the foreign spouse is in the US and will file for Adjustment of Status or if the foreign spouse will apply for consular processing abroad.
The advantage of filing for AOS in the US, is that the foreign spouse will receive an Employment Authorization Card while the green card is being processed and will be able to live and work in the US.
The Employment Authorization Card is normally received in a few months. A foreign spouse who will apply for consular processing abroad will generally have to remain abroad during the process.
USCIS does publish I-130 processing times on its website. Generally, expect a year or more before the foreign citizen spouse can get a greencard.

11. Removing Conditions on Green Card

Green cards granted to marriages that are less than two years old will have a 2-year time limit. The beneficiary must file a Form I-751, signed by them and their spouse, along with supporting evidence, at least 90 days before the card’s expiration date to have the conditions removed, which simply means to get a 10-year green card.

12. Additional Resources

Marriage Based Green Card Interview Guide

If you have any questions about marriage-based green cards, please feel free to contact us at Ramchand & Raval, where we have helped many couples with their marriage-based green cards. Ramchand & Raval has been providing excellent immigration law services for over 15 years, and we represent individuals and corporations from all over the world with their U.S. immigration needs.

Take advantage of our firm’s services. Schedule your consultation today.