Obtaining Permanent U.S. Residence Through Marriage
When a United States Citizen (USC) or Lawful Permanent Resident (LPR) marries a resident of another country, the foreign spouse can typically receive a Green Card, granting him or her permanent U.S. residence. In order for the foreign spouse to receive LPR status, the couple must follow the proper procedures, and the foreign spouse must meet certain qualifications. Obtaining a visa and LPR status through marriage has great advantages, one being the absence of statutory limitations (or caps) on the number of these visas that will be issued to immediate relatives each year. Immediate relatives are the spouses, parents and unmarried children under the age of 21 of U.S. citizens. A spouse of a LPR and any unmarried children under the age of 21 are subject to the annual visa cap and may qualify for a Green Card once a visa becomes available to them in the family-based second preference group.
Valid Marriages for Obtaining LPR Status
A couple may marry within the United States or abroad, so long as the marriage is legal and valid where it occurred, and is a type of marriage that U.S. Citizenship and Immigration Services (USCIS) will recognize. Ultimately, the couple will need to demonstrate theirs is a bona fide marriage; not one entered into for the purpose of obtaining immigration benefits. The application process varies depending on whether the foreign spouse is already in the U.S. or needs a visa in order to travel here. In either scenario the USC or LPR must begin the process by filing an I-130 Petition for Alien Relative with USCIS.
Generally approval of the I-130 requires the petitioning USC or LPR spouse to provide by a “preponderance of the evidence” indications of a valid marriage, including (but not limited to) proof that:
- The petitioner is a U.S. citizen or qualifying LPR;
- Any previous marriages of petitioner and beneficiary (foreign spouse) have been legally dissolved; AND
- Any and all evidence tending to demonstrate the marriage is bona fide and valid, including items such as: the marriage certificate, leases or bank accounts held jointly by the couple, affidavits of friends and family members attesting to the validity of the marriage, photos and evidence of a typical marital relationship, etc.
At times the petitioner’s burden of proof becomes elevated to a clear and convincing standard when there are unique personal circumstances surrounding the case such that USCIS would want to see additional documentation in proving the bona fide nature of the relationship. Examples include when a petitioner refiles on behalf of a spouse for whom he has filed and then withdrawn a visa petition previously; a petitioner submits a petition on behalf of a relative who should have been, but who was not, listed on the forms filed with the USCIS when the petitioner was seeking his own immigration benefits.; a LPR petitioner through marriage petitions for a subsequent spouse within five years of being granted his own residency; and when the marriage which forms the basis for the visa petition takes place after the government initiates removal proceedings against the foreign spouse. In any of these situations consulting with an immigration attorney in advance would be advisable.
Bringing a Spouse or a Foreign Fiancé to the U.S.
Once the USC’s I-130 petition is approved, the foreign national can apply directly in her country for a Visa if she remains or returns abroad. This is called consular processing, and the foreign national will eventually be interviewed at the embassy or consulate that has jurisdiction over her place of residence. Once approved, the foreign national spouse will receive a Visa allowing her entry to the United States, where she will be granted lawful permanent residency in the U.S.
Alternatively, a citizen can petition for a K-3 nonimmigrant visa for his spouse, which will allow her to travel to the United States and apply for adjustment of status within 90 days of entry. For any unmarried children under the age of 21 who will be either accompanying or later joining the foreign spouse in the U.S., the petitioner can include a request for K-4 visas for these children.
The process is similar if the couple has not yet married and the foreign spouse wishes to enter as the USC’s fiancé by applying for a K-1 visa. Once the fiancé has arrived, the K-1 visa gives the couple a 90-day time period in which to marry. The foreign spouse may then apply to adjust her status to a lawful permanent resident. For either the K-1 or the K-3 visa, the U.S. citizen will first need to file with USCIS Form I-129F, and in the case of the K-3 visa, also an I-130 petition to document the marriage.
Adjusting Status After Marriage
To apply for permanent residence the USC and the foreign spouse can simultaneously file Form I-130, Petition for Alien Relative, and Form I-485, Application to Register as a Permanent Resident or Adjust Status (also known as a Green Card application). In the case of a LPR petitioning for his spouse and any minor children, the LPR spouse would first file an I-130 Petition with USCIS. Then, if his foreign spouse and any unmarried children under 21 are already present in the United States in a lawful status, an adjustment of status application may then be filed with USCIS if visa numbers have become available at that time. Otherwise, adjustment of status would not be an available option to the foreign spouse and any minor children who are outside of the U.S. and would instead need to apply for consular processing as discussed above.
Approval of the I-485 requires the beneficiary (foreign spouse) be considered admissible to the country. There are many statutorily defined reasons a foreign national may be considered inadmissible, but the general categories include:
- Health-related grounds, such as people with serious communicable diseases;
- Those with records of certain criminal convictions or who have violated immigration laws; OR
- Those who may pose a security risk to the United States.
To be admissible a foreign spouse also has to have been inspected and lawfully admitted into the U.S. It is important to understand that generally a foreign national who is in the U.S. but is “out of status” (i.e., someone whose authorized period of stay has expired); who entered the U.S. without inspection (EWI); or who violated other immigration laws (like working in the U.S. without employment authorization) will likely be denied adjustment of status to LPR, with only a narrow set of exceptions and waivers. Fortunately, in most instances the law is quite lenient with the spouse of a U.S. citizen and despite having been out of status or even worked without authorization the foreign spouse could still adjust status as long as he or she meets all the other necessary requirements.
Removal of Conditions
Foreign spouses who is either admitted as a permanent resident or applies for permanent residence based on marriage to a USC or LPR within two years of their marriage would be subject to an additional requirement. Within the ninety-day period immediately preceding the second anniversary of the approval of Form I-485, the couple must petition to have the conditions on the foreign spouse’s permanent resident status removed. At this time, the couple jointly files Form I-751, along with additional evidence to support the existence of a continuing, bona fide marriage. USCIS will review evidence of the couple’s marriage one last time to make a final determination on the validity of the marriage and eligibility for LPR status. The agency may ask for more information before it makes a determination. The couple may be asked to personally appear before an immigration officer for an interview regarding their petition.
If the petition is successful, the conditions will be removed, and the spouse (and any derivative beneficiary children) will be granted a Green Card valid for ten years.
In situations where the couple has separated or divorced before an I-751 petition is filed with USCIS, the foreign spouse may elect to file the petition by herself and ask for a waiver from the joint filing requirement.
So long as the couple meets the statutory requirements and follows the steps USCIS requires, marriage can be an efficient way to become a permanent U.S resident. While this article outlines the basics of this process, immigration procedures and laws are complicated, and it is always best to consult with an experienced immigration attorney before taking any actions that might affect you or your family’s eligibility for immigration benefits.