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If you marry a United States citizen or permanent resident, you could be eligible for a marriage-based green card. This process is one way to become a legal permanent resident in the United States. The process and likelihood of obtaining this form of green card would vary depending on whether the marriage was with an American citizen or permanent resident and whether that person came to the U.S. legally.
A marriage-based green card is an option even for those who entered the country illegally or stayed in the country after their visa expired.
The beneficiary is the individual applying for the green card, while the petitioner is the U.S. citizen/permanent resident to whom the beneficiary is married.
You must prove to immigration that you meet the following legal criteria to qualify for a marriage-based green card:
• The marriage must be legal: The country where the marriage occurred must recognize the union as legal. Thus, marriage records effectively verify the legal legitimacy of the marriage in question.
• The petitioning spouse must be a U.S. citizen or permanent resident.
• You must provide evidence of legal termination of any prior marriages: Neither party can be part of a separate, active marriage. If either spouse has been previously married, documents are required to prove the termination of said previous marriage(s) is lawful. Forms of such proof may include either divorce-related papers or a death certificate.
• The marriage must be bona fide: A bona fide marriage is genuine; the couple intends to establish a life together as partners. Marriages legally recognized by the state where the marriage occurs automatically grant eligibility to apply for a marriage-based green card. However, during the application process, immigration officials investigate any possibility that the marriage was an attempt to gain an immigration-based advantage related to a green card. Therefore, the citizen and spouse must prove that their marriage is legitimate and honest by providing documents that demonstrate how the relationship has progressed to marriage.
The application process for a marriage-based green card starts with the petitioning spouse (U.S. citizen or a permanent resident) filing an I-130 Petition for Alien Relative with the United States Citizenship and Immigration Services (USCIS). Usually, within 90 days of applying, the beneficiary is issued an Employment Authorization Document (EAD) and may receive approval to travel abroad.
Once the I-130 is approved, subsequent steps depend on the current residence of the beneficiary—if they are in the U.S. or abroad.
When the Beneficiary Lives in the United States
Suppose the beneficiary came to the country lawfully and is currently residing in the United States. In that case, they must file an I-485 Petition to Adjust Status with the USCIS to stay in the country during this application period. Birth certificate, proof of nationality, and evidence of legal entry into the U.S., including a document such as an I-94 travel record, need to be included with the I-485 submission.
NOTE: If the beneficiary is in the U.S. and the petitioner is a U.S. citizen, they can submit the I-130 and I-485 together.
Once the paperwork is filed, and the supporting documents are submitted, the green card interview is scheduled, generally within 3 to 11 months.
When the Beneficiary Resides Outside the United States
If the beneficiary seeking a green card is residing outside the United States, they must first become a permanent resident of the U.S. through consular processing. Consular processing involves a visa issued by the USCIS using Form I-130. Once the I-130 petition is approved, the National Visa Center (NVC) will receive the document. The NVC then provides a case number for the petition, and the beneficiary must complete the DS-261 Choice of Address and Agent if they do not have an attorney. The beneficiary is not required to complete the DS-261 if they already have an attorney.
After the petitioner and the beneficiary pay any relevant charges, the NVC will process the case. For a marriage-based green card, the processing fee includes a medical examination fee of $85 and a $325 filing fee for the visa application. Additional charges for translation and photocopying may also apply.
After the payment is processed, the beneficiary must submit any remaining documents to the NVC to obtain an immigrant visa.
Required Documents
Properly preparing the necessary documents for this green card can be very challenging. Assistance by an immigration attorney is often required to ensure that there will be no rejections.
The specific documents required for this application process can vary depending on the individual circumstances of the petitioner and beneficiary. However, there are several standard documents necessary for a typical marriage-based green card application:
• A valid passport. The passport must not expire within six months of the beneficiary’s date of entry to the U.S. The required validity period of the passport may be more than six months, depending on the circumstances. It is best to consult your country’s embassy or consulate to verify this information.
• The petitioner must complete an I-864 Affidavit of Support to prove they can support the beneficiary financially in the U.S. by demonstrating that their income is higher than the HHS poverty guideline by at least 25%.
• DS-260 Immigrant Visa Alien Registration Application.
• You must provide two copies of photographs, 2-inch×2-inch in dimension.
• Beneficiary’s Civil Documents: A set of relevant personal documents such as birth and marriage certificates, divorce-related documents, prison records, military history, court records, or police certificates.
• You will need the medical examination test results from exams completed during immigration processing.
Once the NVC receives the required documents and the necessary procedures are complete, the NVC will schedule the visa interview. The beneficiary, the petitioner, and the attorney (in applicable cases) will be notified of when and where the interview will occur. Additionally, the NVC will include instructions for which documents to bring to the discussion.
If the interview is successful and an immigrant visa is issued, the passport and immigrant visa will be given to the beneficiary by the embassy or consulate. You will also receive a package that contains your submitted documents, which is to be opened by the immigration officials in the U.S. upon your entry. You will also undergo a screening by the Customs and Border Protection (CBP) officials to verify if you are eligible to enter the country. If you are declared a permanent resident, you will get your green card (I-551) by mail.
Generally, the purpose of a marriage-based green card interview is to determine the intentions and validity of your relationship. Below are some common questions asked in the interview.
Keep in mind that the questions asked of you may be slightly different depending on your specific situation.
• How and in what context did the both of you initially meet?
• Do you have any common hobbies or interests the both of you?
• When did your relationship become romantic?
• For how long were you in each other’s lives before choosing to get married?
• What is a typical day at your household like, in terms of your routine? To state an example, who wakes up earlier?
• Who typically performs all the errands in the house?
• How much does your spouse earn every month? What is the division of bills like in your house?
Of course, other questions are likely to be asked throughout your interview. Remember to remain calm and be honest with your answers.
Tips for a Marriage-Based Green Card Interview
This interview process can be stressful, but we are here to help. Thus, we have created a list of ten essential tips to make this procedure easier.
1. Arrive 30 minutes before your scheduled meeting with a USCIS officer.
2. First impressions are important. Therefore, dress professionally and conservatively for your interview.
3. Prepare for the different types of questions that may be asked during the interview. However, do not worry if you do not know some. Instead, be honest and prepared to state that you are unsure.
4. Try to remain calm and organized even though this entire procedure may seem overwhelming. If you have nothing to hide, the interview should not be a stressful situation.
5. You do not need to prepare extensively or memorize answers for the interview as the questions about your relationship will be basic.
6. Do not exaggerate your actions or your affection for your spouse. Some couples may do this as an attempt to display the authenticity of their relationship. However, officials in USCIS undergo training to notice when behaviors seem out of place and may categorize the couple’s behavior as a red flag.
7. The officials sometimes interview the couples separately in different rooms. If this happens to you, remain calm and follow the officer’s instructions.
8. Bring with you all the documents that prove the legitimacy of your relationship, such as wedding photos, bank statements, children’s birth certificates (if any), etc. Seek your attorney’s advice regarding the paperwork that may be required.
9. If you still feel under-prepared by the date of your interview, talk to your attorney. Since your attorney understands your case, they will be able to guide you when needed.
Your priority date, which is the date of receipt of the I-130 petition, will be determined by the USCIS. Though the petition processing time takes about six months, you will not receive your green card until your priority date is current. This date is considered current by the system once a visa number becomes available. Unfortunately, backlogs have built up in every category under marriage-based green cards. The delay is due to a quota limiting the number of immigrant visas (green cards) that can be issued. Therefore, this step may take some time.
NOTE: If the petitioner is a citizen of the United States, the foreign spouse is legally considered an “immediate relative” and is therefore not limited by a quota when applying for a marriage-based green card.
Each category is given a different level of preference, depending on your situation. That preference is then further classified by your origin country. You can monitor the priority dates on the Department of State’s monthly bulletin to see if the dates are at or before your priority date. When the dates align, it means that your priority date is current. There are two options at this point:
• Adjustment of Status – for this, an I-485 form is submitted to the USCIS. After the form is submitted, you should expect a processing period of about six months. You will be declared a legal permanent resident once the form is approved.
• Consular Processing – in this case, you must visit a U.S. consulate or embassy in your country that the USCIS. From there, you must make an appointment to interview with a consular officer.
If you reside in another country, your only choice is to go through consular processing. However, if you are already in the U.S. with a nonimmigrant visa, both options are available to you. To determine which route to take, please seek your attorney’s advice. Adjusting your status may seem more beneficial than consular processing, but it may prove to be an expensive, time-consuming affair that could delay your green card.
Can I Use Premium Processing?
Premium processing is unavailable for marriage-based green cards. Premium Processing is only available to those applying for green cards by filing the I-129 and I-140 petitions.
Cost of a Marriage-Based Green Card
Fees related to obtaining a green card, as listed by the USCIS, are:
• $535 for the I-130 petition
• $85 for the biometric examination services
• The fee associated with filing the I-485 application is variable, depending on your age and circumstance. Please refer to the USCIS website to determine this cost.
The charges stated above are only the mandatory fees as listed by the USCIS. There may be several other costs throughout the process, such as travel costs, attorney fees, and other external expenses.
The initially issued green card is only valid for two years. Married couples that wish to extend their green card beyond that two years must file an I-751 to be eligible for a ten-year green card. This process includes additional fees of $595, along with an $85 biometrics fee.
You must file the I-751 at least 90 days before the initial green card’s expiration date, which is two years from the date of its issuance. If you fail to do so, your status as a permanent resident in the U.S. will end once your marriage-based green card expires.
K-1 Visas are nonimmigrant visas, commonly known as fiancé visas. They are generally used to bring your fiancé into the U.S. legally, on the condition that the marriage happens within 90 days of the fiancé entering the country. To convert your K-class visa to a green card upon marriage, follow this process:
1. The petitioner must initially file an I-130 petition on the beneficiary’s behalf.
2. Once the USCIS approves the I-130 petition, you must then wait for your priority date to become current.
3. Finally, you must submit an I-485 form, which will enable the beneficiary’s K-class non-immigrant status to transition into an immigrant green card status.
If you are in the U.S. with a K-class status, you can skip the step of consular processing. However, USCIS, at its discretion, can mandate a consular interview to anybody applying for a green card.
Following-To-Join Benefits
Children of marriage-based green card beneficiaries may qualify for follow-to-join benefits. If your green card has been approved through an immigrant visa preference level, but your children have not been declared permanent residents, you do not need to file a separate petition for them. Instead, you can submit these documents to USCIS to get permission for them to enter the country:
• An I-824 Application for Action on an Approved Petition
• A copy of your previously submitted I-130
• A copy of the I-797 Notice of Action you previously received when petitioning for the green card
• A copy of your green card
If the USCIS denies your application for a marriage-based green card, they will most likely communicate the reason for the denial. These are common reasons for denial:
• The marriage was determined not bona fide: If gaining immigration benefits is the sole purpose of your marriage, you will likely encounter problems in the interview process.
• Problems with your background check: This could happen if there are criminal records against you or evidence of prior violations of immigration status, including if you have ever been considered “out of status.”
A mistake or erroneous claim was found within the filed petition: If there is any incorrect, inconsistent, or incomplete information, your petition could be rejected but not ultimately denied. The petition failed during the preliminary evaluation, where the accuracy and completeness of the data were determined. However, you may correct such errors and refile the petition if you pay an additional fee. The denial letter will also include information about options to appeal the decision. Since the process of appealing requires considerable legal expertise., you may wish to consult your immigration attorney if you wish to appeal.
If I want to move to the U.S. to be with my spouse, my green card is being processed; which visa do I need?
If your marriage-based green card is still pending and you want to enter the U.S., apply for a K-3 visa, a temporary option that allows you to enter the country upon approval.
How old must an individual be to sponsor a marriage-based green card?
To sign an Affidavit of Support Form, which is necessary for this green card, the individual must be at least 18 years old.
What steps must I take if I filed a green card petition on behalf of my spouse when I was a permanent resident, but I am now a citizen?
The previously filed petition must be upgraded from an F2 green card (family second preference) to an immediate relative (IR) category by submitting evidence of your citizenship to the NVC. The process of obtaining the green card will then be accelerated as applications of an immediate relative are prioritized.
NOTE: Unmarried children of a U.S. citizen under the age of 21, or the parents of a citizen, can also apply for a green card under the immediate relative category.
How soon after marrying can I apply for a green card?
There is no specified waiting period. You may apply as soon as you are officially married.
What happens if we file for divorce before the 2-year period ends?
We recommend that the foreign-born spouse submits Form I-751, an application for a “good faith marriage waiver.”
Why you should hire an immigration lawyer for your Green Card case?
It is the responsibility of the applicants to prove the legitimacy of their marriage. However, an immigration attorney can be of great help during this application process. Immigration lawyers are invaluable at preparing and submitting applications and other documents and offering sound advice throughout the process.
At Oasis Legal Group, our immigration attorneys have significant expertise in all aspects related to the marriage-based green card process. Our immigration lawyers have negotiated hundreds of such cases, including fiancée visas and marriage immigration cases.
We offer support through every step of the process for each client, including accurately completing forms, gathering all the necessary documents, and properly preparing clients for proceedings such as the final interview.
To learn more about the different services we offer and how we can assist you in obtaining a marriage-based green card, you can call us at (608) 424-5788 to schedule a consultation with one of our attorneys.
Let us help guide you through this process and determine which option will work best for you.
