Green Card Through Marriage

The foreign spouse of a U.S. citizen who marries a foreign national may qualify for a marriage-based green card and become a lawful permanent resident or conditional permanent resident. Obtaining a green card by marrying a U.S. citizen allows the foreign spouse to become a lawful permanent resident (LPR) if the foreign spouse entered the United States legally, even if the foreign spouse subsequently fell out of status. When the foreign spouse is present in the United States, they may apply for a green card through USCIS without leaving the country if the foreign spouse entered legally. This procedure is known as filing for a change of status (I-485). The alien spouse can lawfully reside and work in the United States 90 days after filing for an adjustment of status when an employment authorization document, also known as an EAD, is issued. The spouse becomes eligible for an EAD 90 days after filing for adjustment status.

 In the United States, the “immediate relative” classification (which includes spouse) allows a foreign national to apply for an immigrant visa without worrying about preference categories or priority backlogs, as an immigrant visa will always be available to them. However, the green card marriage process can be complex and requires an in-depth analysis by an experienced attorney to present evidence of a valid marriage and to prepare for the green card interview by being informed of potential green card marriage interview questions. 90 days before the third anniversary of when the beneficiary spouse became a Lawful Permanent Resident, the beneficiary spouse may be eligible to apply for U.S. citizenship if certain conditions are met.

 At Garcia & Phan, we ensure that our clients feel secure throughout the entire marriage green card application process. We promptly respond to client inquiries and keep them apprised of their case’s status from beginning to end and USCIS processing times. In addition to providing legal counsel, we are renowned for delivering superior service. To learn more about how we can assist you and your spouse in applying for a green card, please contact us at (714) 868-8250.

In order to petition for their spouse, a U.S. citizen or permanent resident must submit a green card through marriage petition (I-130) to USCIS (U.S. Citizenship and Immigration Services). The U.S. Citizen petitioning for the spouse is known as the petitioner or sponsor, and the immigrant spouse marrying a U.S. Citizen or green card holder is known as the beneficiary.

In order to apply for an adjustment of status through marriage to a U.S. citizen in the United States, a foreign national must meet the following minimum requirements:

•  Physically present in the United States
• A U.S. immigration official inspected and lawfully admitted the traveller.
• Has no criminal or immigration background that would render them inadmissible.

If the foreign national does not meet the first two conditions, they may instead apply for lawful permanent resident status through the Immigrant Visa Process (IVP). The process is called consular processing if the applicant’s spouse is not in the United States. Additionally, if the individual is deemed inadmissible due to past criminal or immigration violations, they may be eligible for a waiver(s). You can find a list of additional inadmissibility grounds in INA 212(a) or on the USCIS website.

Green through card marriage applicants must submit comprehensive evidence to the United States Citizenship and Immigration Services (USCIS) to prove the bona fide marriage or legitimacy and authenticity of their marriage.

Among the list of documents for green card marriage application, the two primary forms are:

1. Form I-130 – Petition for Immediate Relative or Petition for Alien Relative (immigration visa application): Form i130 is necessary to validate the marriage. Evidence of the marriage’s legitimacy must be submitted with the form. Such supportive documents may include photographs, joint account statements, insurance policies, marriage certificates, joint leases, proof that both the U.S. Citizen and the spouse are legally allowed to marry, and other documents. This form is submitted to USCIS and currently has a filing fee of $535, which is part of the immigration fees for the CR-1 visa. Once filed, it will take about 2-3 weeks for USCIS to respond and send a receipt notice. Then, a couple of months after filing, two things can happen: 1. USCIS received the package and after reviewing, determined the form and documentation were filed correctly and the evidence to prove this is a bona fide marriage is convincing enough. 2. USCIS deems the original documentation submitted with the forms inadequate or not enough to prove the marriage is a bona fide marriage (a real marriage). If this happens, USCIS will submit a Request for Evidence (RFE). If you have already received an RFE and are looking for an immigration lawyer to help you get back on track with your application, don’t hesitate to contact us at (800) 792-9889. Regarding the timeline, the i-130 processing time for the spouse of a green card holder or U.S. Citizen vary from time to time and depends on the service centre processing it, so our recommendation is to always check for the latest USCIS processing times for this card. As for now, a Permanent resident filing for a spouse can take between 8 Months to 10.5 Months, according to current USCIS processing times. Regarding the timeline, the average i-130 processing time for spouses in 2019 was 10.6 months, and the average CR-1 processing time in 2018 was 9.7 months.

• Form I-485 – AOS.Form i485 determines whether or not the applicant is admissible and qualifies for permanent residency status. In other words, the objective of the I 485 form is to determine if the immigrant spouse is eligible to receive a marriage green card. This form is submitted to USCIS, and its current filing fee is $1140, plus $85 for the Biometric services fee. The evidence and supportive documents you must submit for the form i485 may include:

  • • Photographs: two recent passport-style photos of yourself.

    • Government-issued Identity document with photograph: Usually, this will be a copy of your passport.

    • Birth certificate: USCIS will only accept a long-form birth certificate.

    • Inspection and admission, or inspection and parole: Applicants must submit evidence that they were inspected by an immigration officer and either admitted or paroled into the United States.

    • Documentation of your immigrant category.

    • Marriage certificate and other proof of relationship: The applicant must submit a certified marriage certificate copy. Also, if any of the spouses were previously married, evidence to prove the legal termination of prior marriage must be presented.

    • Evidence that the applicant has had lawful status since the arrival to the U.S. if married to a permanent resident.

  • Police and court records: the applicant must submit certified documents for criminal charges or convictions.

Additionally, the following two ancillary forms must be submitted:

1. Form I-693 – Medical Exam Results:

A USCIS-approved civil surgeon must conduct a medical examination of the foreign national spouse to ensure they are not inadmissible on medical grounds.

1. Form I-864 & I-944 – Affidavit of support & Declaration of self-sufficiency for marriage green card:

Form I 864 checks whether the U.S. citizen spouse can financially support the immigrant by signing an affidavit letter of support.

Form I 944 checks if the applicant is likely to become a public charge in the future. If so, this could be grounds to render the applicant inadmissible.

Finally, the following forms may be submitted to establish or preserve the foreign national spouse’s employment eligibility and travel privileges:

1. Form i765 – Application for Employment Authorization

A foreign national may file the form i765 alongside the adjustment of status (AOS) paperwork to receive employment authorization while their adjustment of status case is pending. If the i765 is approved, they receive an Employment Authorization Document (EAD), which allows \

them to work in any position for any employer.

1. Form I-131 – Application for Advance Parole

A foreign national may file this alongside adjustment of status paperwork to retain international travel privileges while their adjustment of status case is pending. If approved, they receive an Advance Parole Document.

If an applicant departs the U.S. before the adjustment of status application is granted and without advance parole, they may forfeit their application for an adjustment of status for a marriage green card.

When the application is approved, the applicant’s spouse receives a conditional green card (CR1), which is temporary and valid for two years if the marriage is less than two years when the green card is issued. It is essential that 90 days before the end of this conditional period, the couple files together form I 751 (“Petition to Remove Conditions on Residence”) to obtain a ten-year green card through marriage, known as a permanent green card which is valid for 10 years. USCIS will re-evaluate the authenticity of the marriage before granting this “immediate relative” green card, or ir1. Some of the criteria to remove the conditional status are:

• The conditional green card was obtained through marriage to a U.S. Citizen.

• This conditional green card will expire within the next 90 days.

• There is evidence of a bona fide marriage (this can be proven by showing financial co-mingling such as joint bank accounts or joint tax returns.

Once the spouse obtains the permanent green card, the spouse can apply for naturalization through Form N-400 (“Application for Naturalization”) after 3 years of marriage to a U.S. citizen and living in the USA. For this step, some of the general requirements are:

• Being a permanent resident (G.C. holder) for at least 3 years.

• Have been living with your U.S. Citizen spouse for at least 3 years.

• Have lived within the State for at least 3 months before applying.

• Have continuous residence in the U.S. as a permanent resident for 3 years.

• Have been physically present in the U.S. for at least half the 3 years (18 months).

• Have basic knowledge about U.S. civics.

• Be a person of good moral character.

The K-1 visa, also known as the fiancé visa, is the visa used to bring a foreign fiancé to the United States so that the couple can marry within 90 days and afterwards apply for a marriage green card for the foreign partner to obtain citizenship. As the name implies, the K-1 fiancé visa is meant for couples who are still not married. If you are a U.S. citizen and your fiancé lives abroad and wants to bring them to the U.S. and have your wedding here, the K-1 visa might be the right path for you. Garcia & Phan has a 100% approval rate in K-1 visa applications. If you are interested in pursuing a fiancé visa, call (714) 868-8250 to get a consultation.

The Department of Homeland Security (DHS) has announced a considerable increase in immigration fees starting October 2nd, 2020. Any application, petition, or request postmarked on or after this date must include payment of the new, correct fees established by this final rule.

Current (post-October 2nd, 2020) Government fees payable directly to the U.S. Department of Homeland Security are:

• I-130 filing fee: $560

• I-485 filing fee: $1,130

• Biometrics service fee: $30

• I-765 Application for Employment Authorization: $550 (Optional)

• I-131 Application for Advance Parole (Travel Document): $590 (Optional)

Please note that the I-765 employment authorization and the I-131 travel document were included in the I-485 adjustment of status application. Now, with the new fee structure, they are no longer included and optional.

Call Garcia & Phan now at (714) 868-8250 to get a consultation and start your marriage-based green card process.

If the foreign spouse is living abroad, they can still apply for an I-130, but this time the process is called “Consular Processing”, as part of it will take place at their home country’s consulate. When applying for a green card via consular processing, you still need to file the I-130 petition for Immediate Relative and wait for USCIS ‘decision. Once USCIS approves the petition, it is sent to the Department of State NVC (National Visa Center), where the application will be processed.

NVC will create a case file and notify you of the necessary documents and fees for immigrant processing and then forward your case to the U.S. Consulate or U.S. Embassy, where you will be scheduled for an interview with a consular officer that will determine whether or not you qualify for an immigrant visa.

If everything goes well in the interview and you are granted the immigrant visa, you will be given a packet of information (known as a visa packet) that you will have to present to the U.S. CBP (Customs and Border Protection) when you arrive in the United States.

If you have overstayed your visa in the United States, you might still be eligible to apply for an adjustment status through marriage if you are married to a U.S. Citizen. If you have overstayed, don’t hesitate to contact our office at (714) 868-8250 to speak with an experienced attorney who can advise you on your options.

If you, or your spouse, are looking to apply for a Spousal Green Card, contact us at Garcia & Phan. With more than 80 years of combined experience, 35,000 cases approved, and a 99.9% Approval Rate, we are the best option to secure your future in the U.S.