The husbands and wives of U.S. citizens or permanent residents qualify for their own Green Cards. However, the rules and waiting times are different depending on the spouse’s nationality and length of marriage. Also, issues can arise with the applicant’s work authorization, legal status, or marital complications. An experienced immigration attorney can navigate the legal process and help present the proper evidence, and can even accompany the couple to the in-person marriage interview.
Marriages to U.S. citizens fall under the Immediate Relative category and follow those same rules. This includes the ability to file concurrent Petition and Adjustment of Status application, the availability of an interim Work and Travel card if forms are filed properly, and “forgiveness” for overstaying status. Marriage to a Green Card holder does not have the same benefits and will often have a wait time. Continue reading for more details specific to marriage with a U.S. citizen, and for details on marriage to a Green Card holder.
Evidence in a Marriage-Based Petition:
In order to get a marriage-based green card, you must prove that the marriage is valid and “bona-fide.” To prove a marriage is valid, the Petitioner (citizen or permanent resident spouse) must show that both of you are qualified to be married at the time of filing your applications. Disqualification typically results from previous marriages by either party that weren’t properly dissolved or divorced, or other state based laws that determine when marriages are valid. Also keep in mind that some states have laws voiding marriages that occur too soon after the divorce of a preceding marriage. As such, your immigration attorney will determine whether your marriage is valid and approvable under immigration laws, and will further help you to show the marriage is “bona fide.”
Marriage-based green cards are only issued for “bona fide” marriages, or those that are intended to form a life together and not merely done for immigration benefits. The government does not care whether a marriage is viable, whether the couple will last a long time together, or whether they are a compatible couple. The question of “bona fide” essentially asks whether the couple’s marriage is a sham or fake. The primary purpose of the USCIS in-person interviews are to determine whether marriages or bona fide or not. In order to demonstrate that a marriage is “bona fide,” you should submit evidence such as, but not limited to:
- Marriage license (translated if necessary);
- Evidence of shared assets or financial accounts;
- Evidence of cohabitation, or living together
- Wedding memorabilia (photos, cards, etc.);
- Affidavits from loved ones;
- Couple’s vacation photos;
- Evidence of communication during courtship;
Conditional Permanent Residence:
Those who are granted permanent resident status whose marriages are more than two years old will be granted a full and permanent Green Card. But those who are applying based on a marriage that is less than two years old will be given two-year conditional Green Cards and must apply to remove those conditions at the end of the two-year period. The removal of conditions is done via form I-751, which must be filed during the 90 day period before the second anniversary of conditional residence. This date is very important because late applications will not be accepted without an acceptable explanation of good cause for missing the deadline.
In order for I-751 to be approved the couple must remain married and satisfy the “dual signature” requirement. There are some exceptions where the marriage has ended before two years for widowers, victims of spousal abuse, and those who can prove the marriage was entered into in good faith but nonetheless ended in divorce. The USCIS can require another in-person interview at this stage of the process if they feel it is necessary.
What to Expect at the Marriage Interviews:
A strong selection of documentary evidence will make your case strong, but you will still be required to perform an in-person interview at your local USCIS office towards the end of the Adjustment of Status process. Another marriage interview could even be required after two years when applying to remove conditions and get a permanent Green Card. At the marriage interview(s), a USCIS officer will go through the application with you and your spouse to ensure everything is approvable. They will ask questions about your work history, your residence history, any criminal record, and your marriage’s legitimacy.
USCIS officers use this opportunity to observe how the couple acts in person, and any perceived suspicious conduct at this interview can result in further investigation of the marriage’s legitimacy, including unscheduled home-visits. If the investigation is elevated by perceived suspicion, the officers have been known to separate couples during unscheduled visits and ask each of them the same set of questions to see if they answer differently, which indicates fraudulent relationship. These questions can range from trivial, such as “what was the last restaurant you ate at together?” to intimate, such as “when was the last time he two of you engaged in intercourse?” Further, the USCIS can inspect the listed marital residence to see if there are signs of cohabitation, such as couples’ toiletries in the bathroom, and garments for both spouses in the bedroom closet. Again, a successful marriage interview will not result in the enhanced scrutiny of a home-visit, but you should know the bounds of the government’s review.
The USCIS allows applicants to bring attorneys to this interview, which is highly recommended especially for any cases with complications. Having your immigration attorney present can help keep the case on track if there are documents that the government cannot find in their system, and the attorney will be on hand if any of the USCIS questions require legal explanation.
Spouses of Green Card holders:
Marriage to a Green Card holder is not considered immediate relative such as marriage to a U.S. citizen. Rather, marriage to a Green Card holder is the first priority in the USCIS family Preference Categories. Spouses of Green Card holders qualify for their own Green Card, but they do not benefit from the immediately available visa number. In other words, they will have to wait between applying for their own Green Card, and adjusting into the Green Card status. The current wait time can be found on the DOS Visa Bulletin. Depending on the timing of your relationship with the Green Card holder, and how that person obtained their Green Card, you might also qualify for “follow to join” benefits.
“Following to join” allows the pre-existing spouse and/or children (under 21) of certain Green Card holders (the principal) to obtain permanent residence without submitting separate I-130s and without having to wait for an available visa number. This can be done at a U.S. consulate or by adjustment of status from within the USA. Note that this benefit is not available for marriage to a U.S. citizen, and only applies to those who became permanent residents through a preference classification. The spouse and/or children of Green Card holders may follow to join if:
- the relationship existed at the time the principal was issued a Green Card, and;
- The principal’s Green Card was based on employment, the diversity lottery, or family preference categories (not immediate relatives).
How to Get the Process Started:
Contact Pilehvar Law now for free consultation regarding when and where to get married if you have not already done so, the evidence you should submit with the forms, and the timing of the whole process. There are a lot of considerations in this process, but a lifetime of benefits if done properly. Your immigration attorney will tell you what to expect and will ensure that your case is strong and filed correctly.