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Marriage-Based Green Cards

As discussed elsewhere on our website, U.S. Citizens and Lawful Permanent Residents (LPRs or Green Card Holders) can petition for certain family members to receive Lawful Permanent Resident status, which will allow them to live and work in the U.S. This article explains the process for U.S. Citizens and LPRs to file petitions for their spouses to obtain a marriage-based green card. Please see our Family Petition article for information about sponsoring family members other than spouses. The process for a U.S. Citizen or LPR married to a non-immigrant can be complicated, and the applicable process depends on a variety of factors. You may prefer to seek the assistance of an immigration lawyer with this petition.  However, the basic process for U.S. Citizens is explained here to provide you with a general understanding. For an assessment of your situation, or for assistance, please contact the immigration attorneys in our Michigan office to schedule a consultation.

The first necessary step for a U.S. Citizen or LPR to sponsor his or her foreign national spouse for LPR status (i.e. get a Green Card) is the filing of Form I-130, Petition for Alien Relative. This petition must be filed with U.S. Citizenship and Immigration Services (USCIS) in the U.S. (Note that a very limited number of U.S. Consulates will allow certain U.S. Citizens to file this petition directly with the Consulate.) The purpose of this petition is to establish the bona fide nature of the marriage, to confirm that it is a “real” marriage and not one entered into merely for the purpose of obtaining immigration benefits. Once it is determined that the marriage is bona fide, either USCIS (or the Department of State) must determine whether the alien spouse qualifies for LPR status under law, and whether he or she merits approval. Please note that an alien spouse of a U.S. Citizen is not entitled to a Green Card / LPR status, it is considered a benefit granted by discretion, though unless there are negative factors involved, discretion generally favors approval.  

The rest of the process, which can occur simultaneously to the filing of the I-130, depends on a variety of factors. This article will discuss Adjustment of Status and Consular Processing for spouses of U.S. Citizens.

Adjustment of Status based on Marriage to a U.S. Citizen

For alien spouses present in the U.S., it may be possible to adjust status to LPR / Green Card holder without leaving the U.S. This may be an option for aliens who are lawfully present, such as those whose I-94 has not expired, as well as those who overstayed a visa and are no longer in legal status. This may be true even where the alien worked without authorization. However, those who entered the U.S. without inspection may not be eligible for Adjustment of Status. For more details about eligibility, please see our article about Adjustment of Status.

An alien spouse, who is eligible to apply for Adjustment of Status from within the U.S., can file the application (Form I-485) on his or her own behalf along with the I-130 petition filed by the U.S. Citizen on his or her behalf. This is because for aliens married to U.S. Citizens, unlike most other family member beneficiaries, an Immigrant Visa is automatically available upon approval of the I-130. This means that it is possible that spouses of U.S. Citizens are able to obtain a Green Card as soon as the I-130 is approved.

In the majority of cases, the process culminates with an in-person interview of the married couple by an Adjudication Officer at the local USCIS Office, when it is determined whether the marriage is bona fide and whether the alien can and should be approved as a LPR / Green Card Holder. Aliens with any type of criminal record, including arrests or convictions, may be “inadmissible” and therefore not eligible for LPR status. In some cases there may be a waiver available, which would allow someone otherwise ineligible to become an LPR to adjust status anyway. Denial of Adjustment of Status can lead to Removal Proceedings, particularly for aliens with a criminal record. We highly recommend that aliens with a criminal record of any type contact our office for a consultation.

The process of Adjustment of Status can take much less time and be much simpler than Consular Processing, explained below. It generally takes USCIS between three and eight months to adjudicate Adjustment of Status applications. However, this estimate changes and depends in large part on which office processes the application. Processing time estimates are accessible via the USCIS website, www.uscis.gov.

Additional benefits that can be sought concurrently when filing for Adjustment of Status include Employment Authorization (Form I-765) and Advance Parole (Form I-131). The filing fee for Form I-485 automatically includes the fees for these applications. Both Employment Authorization and Advance Parole applications take approximately 90 days to adjudicate, which often means they will be decided before the Adjustment of Status application is decided. An Advance Parole document allows someone who has a pending marriage-based Adjustment of Status application to leave the U.S. and return while the application remains pending. Anyone with a pending Adjustment of Status application who departs the U.S. without Advance Parole may not be let in and his or her application for Adjustment of Status can be deemed abandoned and terminated by USCIS.

Consular Processing Based on Marriage to a U.S. Citizen

In cases where the alien spouse is outside the U.S. (or if he or she is in the U.S. but not eligible for Adjustment of Status), he or she must seek an Immigrant Visa (resulting in LPR status) via Consular Processing. This process can take much longer than the Adjustment of Status method, often lasting at least a year.

Again the first step is for the U.S. Citizen spouse to file the I-130, Petition for Alien Relative, with USCIS in the U.S. If the petition is approved it will be forwarded to the National Visa Center (NVC). The NVC will request additional documentation and fees from the petitioner. The petitioner has up to one year to provide the documentation and pay the fees, or the approved petition will be terminated and no longer viable. The petitioner may notify the NVC prior to the one-year deadline that he or she intends to pursue the visa and request that it not be terminated. Once the petition is terminated, a new I-130 must be filed.

Upon receipt of the properly submitted documentation and fees, the NVC will then forward the petition and supporting documentation to the applicable U.S. Consulate, depending on the location of the alien spouse. The U.S. Consulate will then notify the alien spouse of his or her interview date at the U.S. Consulate and inform him or her of any procedures or documentation necessary for the interview. This includes details about how and where the alien spouse can complete the Medical Examination prior to the interview. Each U.S. Consulate maintains its own rules and procedures for preparing for and attending the Immigrant Visa interviews. Wait times for interviews are dependent on the U.S. Consulate.

For those alien spouses who are present in the U.S. but not eligible for Adjustment of Status, which is true for most of those who entered the U.S. without inspection, they may be able to obtain LPR status via Consular Processing. In this case, he or she will need to depart the U.S. and attend the interview at the U.S. Consulate. Depending on the country of origin, he or she may need to obtain civil documentation requested by the NVC in person, and therefore may need to depart the U.S. well before the U.S. Consulate even receives the petition. If you seek assistance with this process, please contact our office for a consultation.

For alien spouses of Legal Permanent Residents (LPRs), rather than of U.S. Citizens, the major difference in the process is that the alien spouse can not automatically proceed when the I-130 is approved by USCIS. Instead, he or she must wait until an Immigrant Visa becomes available before the NVC will request and accept the documentation and fees required to forward the petition to the U.S. Consulate for an interview. The wait time for visa availability is accessible via the U.S. Department of State web page for the Visa Bulletin. Spouses of LPRs fall under Family-Sponsored Preference 2A. As of the April 2011 Visa Bulletin, Immigrant Visas are available for alien spouses whose I-130 was approved in April 2007. This means the current wait time is four years (five years for citizens of Mexico) from the time the USCIS approves an I-130 to the time NVC will be ready to resume the process. 

This article is intended only for informational purposes and does not constitute legal advice. Please contact our office to schedule a consultation if you would like to discuss your case in detail.