THE GREEN CARD THROUGH MARRIAGE GUIDE
Ben Frear, Esq.
Immigration Lawyer
Table of Contents
Introduction
First off…congrats!
If you have landed on this page, you are probably either recently married or planning to get married. Now, you want to know everything there is to know about getting a US green card through marriage.
This guide will provide you with valuable general information about the process and requirements for obtaining a green card through marriage. Armed with this information, you will have a solid foundation upon which to start your green card journey!
Key Terms and Concepts
Before you learn about obtaining a green card through marriage, it is important to understand some of the key terms that are commonly used when discussing this topic.
These terms include:
Beneficiary=The foreign national spouse. In immigration terminology, the “Beneficiary” is the person who is obtaining the US immigration benefit(in this case, a Green Card).
Petitioner=The US citizen/green card holder spouse who is attempting to help the “Beneficiary” obtain a green card.
Form I-130, Petition for Alien Relative=The initial filing which invites the Beneficiary to the US.
Form I-485, Application to Register Permanent Residence or Adjust Status=The application to change your status to that of a green card holder.
Form I-131, Application for Travel Document=The application that allows you to travel out of the US while your I-130 and I-485 are pending.
I-765, Application for Employment Authorization=The application to obtain work authorization. This allows you to work and get a driver’s license while you wait for your I-130 and I-485 to be adjudicated.
I-864, Affidavit of Support=The affidavit that must be filed by the Petitioner which requires them to provide financial support to the Beneficiary.
I-944, Declaration of Self Sufficiency=The document, which must be completed by the Beneficiary to demonstrate that they will not be a public charge.
DS-260=The application for an immigrant visa that is filed when the Beneficiary is going through consular processing.
Adjustment of Status=The process through which someone changes their status to that of a green card holder while remaining in the United States.
Consular Processing=The process of applying for an immigrant visa while outside of the US.
Case is “Current”=The foreign national spouse does not have to wait to apply for their immigrant visa.
Immigrant Visa=The ticket that gets you to the US to start living as a Green Card holder.
USCIS=United States Citizenship and Immigration Services–The government organization that decides if an application or petiton(such as an I-130 or I-485) will be approved or denied.
Advantages of Getting a Green Card Through Marriage
Before delving into the technical requirements and process that is used to get a green card through marriage, I want to highlight the advantages that spouses of US Citizens and Green Card Holders have compared to other family members.
Advantages for Spouses of US Citizens
Advantage #1: Shorter Wait for a Green Card
The biggest advantage for spouses of US citizens is that they are considered “immediate relatives.” As such, they are not subject to a cap, or quota that limits the number of visas that are issued each year.
Family members who do not qualify as “immediate relatives” of US Citizens oftentimes have to wait years(or decades) before they can reunite with their family members.
To illustrate, consider this example:
You are a US Citizen who is originally from India. You have always been close with your sister who remains in India. Since you want to be able to see her on a regular basis, you decide to sponsor her for a green card. After doing your research, you realize that your sister falls into a family based preference category(F-4). Then, as you explore the expected time frame for bringing your beloved sister to the US, you are shocked to see an expected wait time of 15 years!!!
A spouse of a US citizen will not have to deal with such an absurdly long wait.
Advantage #2: Adjustment of Status
Another related advantage is that spouses of foreign nationals have the ability to apply for adjustment of status to obtain their green card.
If the foreign national spouse is already in the US in valid status, they may be able to apply for adjustment of status. This option is extremely popular because it allows the couple to remain together while they go through the lengthy green card process. As an added bonus, people who apply for adjustment of status can simultaneously apply for work authorization. Once work authorization is approved(typically 5-8 months after applying) they will be able to obtain a social security number and begin working for a US employer.
Advantage #3: A spouse of a US Citizen will be able to adjust status despite certain immigration violations
Many family members who have overstayed on their visa or worked without authorization will not qualify for adjustment of status. This can create a huge problem for someone who has overstayed in the US for more than 180 days and then departs the US. An overstay of 180 days will result in a three year bar from reentry to the US while an overstay of one year or more will result in a ten year bar.
Spouses of US citizens are treated less harshly. Barring other disqualifying factors, a spouse of a US citizen can qualify for adjustment of status even if they have overstayed on a visa or have worked without authorization.
Advantages for Spouses of US Green Card Holders
Spouses of green card holders are in a good but slightly less advantageous position. For example, they may not adjust status if they worked without authorization or overstayed on a visa. Also, they are subject to a visa cap that can result in a waiting period after the approval of the initial application(form I-130).
Thankfully, at times, there is no backlog for this category(F-2A). When there is no backlog, a spouse who is lawfully in the US may apply for adjustment of status while remaining in the country. Those who are outside of the US will look at the visa bulletin once their Form I-130 is approved. This visa bulletin will inform the spouse of when they can begin the process of applying for the visa.
Green Card Through Marriage Requirements
In order to qualify for a green card through marriage, the following general requirements must be met:
- The couple must have entered into a legal marriage in the jurisdiction in which it occurred
- The law under which the marriage occurred cannot be contrary to US public policy
- The couple must show that they are in a bona fide(aka. genuine) marriage
- The couple must be able to show the legal terminations of any prior marriages
- The Beneficiary does not have a record of certain criminal or immigration violations that will prevent them from obtaining a green card
- There are no other disqualifying factors(ie. previous fraud/misrepresentation, public charge factors, etc.)
The Green Card Through Marriage Process
Step One: Forms I-130 & I-130A
The Forms I-130 and I-130A are at the starting point of all marriage based green card applications.
The I-130(Petition for Alien Relative) can be thought of as an invitation from the US Citizen/Green Card Holder Spouse to their Foreign National Spouse. The US Citizen/Green Card Holder Spouse is the “Petitioner,” while the Foreign National Spouse is the “Beneficiary.”
The I-130 which can be found HERE requests considerable details about the Petitioner and Beneficiary including biographical information, work history, address history etc. As with all immigration forms, this form should be completed carefully and completely after reviewing the instructions.
For marriage based green card applicants, the I-130A, Supplemental Information for Spouse Beneficiary must be filed along with the I-130. This form which requests additional information about the Beneficiary can be found HERE.
Typically, the I-130 must be originally signed and dated by the petitioner. The beneficiary is required to sign the I-130A if they are present in the US. If they are outside of the US, their signature is not required.
Step Two: Adjustment of Status or Consular Processing
As discussed above, the filing of the I-130 will always be the first step in the green card through marriage process.
The second step will depend on the couple’s situation.
If the Beneficiary is outside of the US, then the I-130 must be approved before consular processing begins.
When the Beneficiary is in the US, they can oftentimes file the I-130 and the application for adjustment of status simultaneously.
Adjustment of Status vs. Consular Processing
Oftentimes, I have conversations with clients about whether adjustment of status or consular processing is the better option(assuming that both options are available). During these conversations, I will discuss the benefits or each route. To summarize, here are some of the advantages of each option that I typically highlight:
Advantages of Consular Processing:
- Continuous Employment: If the Beneficiary does not have US work authorization and continuous employment is important to them, then consular processing will probably be the better option. The reason being that people who enter the US on an immigrant visa will be able to start working almost immediately. If the Beneficiary does not have work authorization before applying for adjustment of status, they will have to wait for work authorization(5-8 months) before they can obtain a social security number and begin working.
- Freedom to Travel Internationally: When a person applies for adjustment of status, they will be considered to have abandoned their green card application if they travel outside of the US before their travel document is issued(5-8 months). Those who are applying for an immigrant visa through consular processing will not have to deal with this restriction.
Advantages of Adjustment of Status:
- Family Unification: The main perk of Adjustment of Status is that the couple will not be seperated from each other during the long green card process.
- US Work Authorization: The Beneficiary will be able work in the US upon approval of the I-765 (Application for Work Authorization) which will be filed along with the Application for Adjustment of Status. Therefore, if the Beneficiary spouse does not already have work authorization and working in the US(as soon as possible) is a priority, then Adjustment of Status will be an attractive option.
The 90 Day Rule
Before you decide to file for adjustment of status, be aware of the 90 day rule. If the Beneficiary came to the US on a tourist visa or through a visa waiver program, they expressed their intention to return to their home country. If they do anything that is inconsistent with non immigrant intent within 90 days, such as applying for adjustment of status, they could be flagged for misrepresentation. This could create a huge problem.
Consular Processing(Pre-Interview Process)
The Visa application process involves submitting various documents to the National Visa Center(NVC) after the I-130 is approved by USCIS.
If the Beneficiary is a spouse of a green card holder and their category is not current, they will have to wait until their category becomes current(no waiting line) before they can apply for their immigrant visa.
Once the case is current, it will be transferred to the National Visa Center, which will then issue fee bills and instructions to proceed with online processing through the National Visa Center’s website.
The fees are currently $325 for each immigrant visa, and $120 for each affidavit of support (fees are subject to change).
Once the Immigrant Visa fee has been paid, you will be able to access the DS-260 form.
After the DS-260 has been submitted, the Beneficiary will assemble and submit the requested documents. They will also be required to attend a medical examination.
Once the Medical Exam has been completed and the NVC determines that all of the required documents have been submitted, they will schedule an interview.
Adjustment of Status(Pre-Interview Process)
Some spouses who are physically present in the US may qualify to file for adjustment of status simultaneously with the I-130. This is beneficial because the process is typically faster and avoids separation of the family. The decision to apply for adjustment of status is complex and usually comes after an immigration lawyer analyzes eligibility. In general, spouses can qualify for adjustment of status if:
- They are physically present in the US
- They legally entered the US
- They are not subject to a home residency requirement
- There are no factors(such as public charge issues, immigration or criminal violations) that would disqualify them from adjustment of status
- They are an immediate relative of a US citizen OR There is no backlog for their preference category(F-2A)
Step Three: Prepare for the Interview
Regardless of which option you select(adjustment of status or consular processing), you will attend an interview before you obtain a green card. The questions that are asked during these interviews tend to focus on:
- The bona fide nature of the marriage
- Issues related to financial support
Step Four: Enter the US on an Immigrant Visa OR Obtain a Green Card After an Interview at USCIS
For those who are adjusting status, the green card will arrive in the mail after a successful interview.
If you are going through consular processing, you will be issued an immigrant visa that will be valid for up to six months. Then, you will travel to the US while the visa remains valid in order to obtain permanent residence status. In order to obtain a physical green card, you will be required to pay an additional immigrant fee to USCIS.
Step Five(If Applicable): Apply to Remove Conditions
For many people who obtain a green card through marriage, the initial green card will be “conditional.” This conditional green card will be issued to those who obtain their lawful permanent resident status within two years of their marriage.
Those who are issued conditional green cards will enjoy the same benefits as other green card holders. However, conditional green card holders will have to apply to go through the process of removing the conditions towards the end of the two year conditional residence period in order to preserve their status.
At the end of the two-year period, the couple will typically file a joint petition with USCIS to have the conditions removed. If this petition is granted, the conditional status will be removed and the Beneficiary spouse will obtain unconditional green card status.
Documents Needed for a Green Card Through Marriage
There are a number of documents that you will gather before you apply for a green card through marriage. While these documents will vary depending on current USCIS policy, I am including a list of typical documents to give you an idea of what to expect.
One Step Adjustment of Status
- Form I-130, Petition for Alien Relative
- Form I-130A, Supplemental Information for Spouse Beneficiary
- Form I-485, Application for Adjustment of Status
- Form I-765(If work authorization is requested)
- Form I-131(If travel document is requested)
- Form I-864, Affidavit of Support
- Form I-944, Declaration of Self Sufficiency
- Copy of the Birth Certificate for both spouses
- Copy of the couple’s Marriage Certificate;
- Divorce Decrees(if either spouse was previously married)
- Eight passport style photos for the Beneficiary
- Two passport style photos for the Petitioner
- Naturalization Certificate or U.S. Passport biographical page for the Petitioner(If not born in the US)
- Beneficiary’s Medical Examination Report completed by the civil surgeon(PLEASE NOTE: This can be provided later. Since my clients typically have a lot of expenses at the beginning of the process, I usually advise them to complete the exam after the initial filing.
- Copy of the Beneficiary’s Biographical Passport Page, Visa and I-94
- Copy of Petitioner’s most recent tax transcript
- Copy of Petitioner’s most recent W-2 and income tax return
- Employer Verification Letter for Petitioner
- Petitioner’s most recent pay stubs
Evidence of a Bona Fide Marriage
- Joint ownership of real property or joint tenancy;
- Joint ownership of personal property or commingling of financial resources;
- Birth certificates of children born from the relationship;
- Declarations from persons who have known the married couple who can attest that it was bona fide;
- Photos or other proof of the wedding;
- Insurance forms naming the other spouse as a beneficiary;
- Joint tax returns
Consular Processing Documentation
The documentation requirements vary by consulate. However the requested documents will likely include:
- Affidavit of Support
- Copy of Birth Certificate;
- Copy of Passport Biographic Page;
- Original Police Records;
- Court Records(If Applicable);
- Military Records(If Applicable);
- The couple’s marriage certificate;
- Passport-Style Photos
NOTE: These documents will be requested after the I-130 is approved. When filing the I-130 as the initial step, many of the documents listed above(in the I-130 and I-485 document list) will be initially submitted to USCIS.
Green Card by Marriage Cost(LEGAL AND FILING FEES)
One Step Adjustment of Status Fees:
- I-130: $535
- I-485: $1140
- Biometrics Fee: $85
NOTE: There is not currently a fee for the I-131 or the I-765 if filed simultaneously with the application for adjustment of status.
Consular Processing Fees
- I-130: $535
- Affidavit of Support Processing Fee: $120
- Immigrant Visa Application Fee: $325
- USCIS Immigrant Fee:$220
Green Card Through Marriage Attorney Fees
Attorney fees for the Green Card through marriage process will vary depending on a number of factors. These factors include:
- Location: In large metropolitan areas, fees tend to be higher
- Expertise: If a firm focuses on a particular type of case, they tend to command larger fees for that specialty
- Overhead: Firms with significant overhead(expensive lease, staff, etc.) will oftentimes need to charge more to account for the overhead costs
- Ability to Pay: Some firms will charge more if they get the sense that a prospective client has the ability to pay more
- Workload: The fees that attorneys charge will oftentimes fluctuate depending on their workload. If an immigration lawyer is overloaded, they will oftentimes quote a higher fee than they would if the work is steady or slow
- Speed: If a client expects the work to be expedited, many lawyers will charge a premium
- Vibe from Client: It is extremely important for immigration lawyers to establish a good relationship with their clients. If an immigration lawyer senses that a particular client will be difficult to work with, they will oftentimes decline to take the case or charge a premium.
Anyone who is exploring green card through marriage attorney fees can get a sense for how much the process will cost by looking at immigration lawyer websites. My firm and many others offer transparent flat fees. My fees can be found HERE.
The Green Card by Marriage Timeline
The green card by marriage timeline can be difficult to predict since the timeline will depend on:
- The workload at various governmental agencies
- Your ability to gather all of the required documentation
- Your immigration lawyer’s workload
In general, the timeline will look like this:
One Step Adjustment of Status
For a one step adjustment of status case, the timeline will be as follows:
- Determine strategy, gather documents and complete the forms–one to three months
- Receipt notices for the forms(I-130, I-130A, I-765, I-131, I-485)–two to five weeks after filing
- Approval of the I-765 and I-131–five to eight months
- Interview for the I-130/I-485–ten to fourteen months
I-130 and Consular Processing
For consular processing, the timeline will look like this:
- Determining strategy, gathering documents and completing forms–one to three months
- Receipt notices for the forms(I-130, I-130A)–two to five weeks
- Approval of I-130–six to twelve months
- Notification from the National Visa Center(NVC) regarding the fee bill and required documents–up to 60 days from the approval of the I-130
- Immigrant Visa Application–three to five months from the date of the I-130 approval
- Interview–one to two months after NVC receives all of the documents
Green Card by Marriage Interview Questions
All beneficiaries who are seeking a green card can expect questions about their relationship. Specifically, you can expect questions about:
- Spouse’s Background–birth date, birth place, names and location of siblings and parents, residences over the last ten years, occupation, schools attended etc.
- Relationship History–meeting circumstances, first date, trips, proposal, marriage details, anniversaries
- Details about Residence–decor of the rooms, number of televisions, color of the couch, etc.
- Personal Details–birth marks, favorite movie, favorite color, favorite food, nicknames, etc.
For those who are applying through consular processing, the focus of the interview will be slightly different. The Beneficiary is excepted to know details about their spouse. However, they will not be expected to know everything about their residence.
During the interview at the consulate, the Beneficiary should be prepared to respond to questions about their:
- US immigration history
- Employment history
- Financial situation
- Medical issues
- Relationship with spouse
- Educational background
Do you need an Immigration Lawyer? How do you find one?
Do you need an Immigration Lawyer?
I have never worked with a client who was not capable of completing the immigration process without my help. My clients have all been smart, hard working and resourceful. However, they simply did not want to go through the hassle of learning all that they needed to know to successfully navigate the process. Working with a friendly, knowledgable and responsive immigration lawyer will make your life easier. The right lawyer will save you time and increase your odds of success while simultaneously reducing your stress level.
When deciding whether to use an immigration lawyer, consider the following questions:
- Are you comfortable handling your own case knowing that a minor mistake can lead to a denial?
- Are you committed to learning everything that you need to know so that you can obtain an approval?
- Would you feel anxious if you did not use a lawyer?
- If you can’t afford a lawyer, are there pro bono organizations in your area who could help you?
Handling your own case is possible. However, before you make this important decision, please thoroughly understand the process, the requirements and the risks of proceeding without a lawyer. If price is the sole issue, please know there are many amazing pro bono organizations who can help you for a modest fee.
How to Find an Immigration Lawyer
Those who are interested in hiring an immigration lawyer have an abundance of options. Since immigration law is federal in nature, the immigration lawyer that you select does not have to be licensed in the state in which you or your spouse resides. This gives you an amazing opportunity to conduct a nationwide search to find the lawyer that is right for you.
There are three main questions that you should ask yourself when you are hiring an immigration lawyer:
- Does the lawyer have the knowledge to help me succeed?
You can usually get a sense of the lawyer’s knowledge by reading the content on their website or by speaking with them about the process and requirements. Before you start your relationship with an immigration lawyer, you should be confident in their ability to help you.
2. How will I feel during the process?
In my opinion, this is where you can see vast differences amongst immigration lawyers(and lawyers in general). There are a lot of lawyers who can solve your problem. However, they differ in the way that they will treat you.
Some will be friendly and responsive. Lawyers in this group will reduce your feelings of stress and overwhelm by making themselves available throughout the process. Other immigration lawyers will assign your case to employees or require you to go through gatekeepers to reach them. Unfortunately, others will be difficult to reach.
Keep this reality in mind when you are having an initial call with a prospective immigration lawyer. Will they be personally available to discuss your case? If not, who will handle daily correspondence? There is nothing wrong with working with associates, paralegals or assistants. However, you will want to know the communication protocol before beginning your relationship.
As Maya Angelo famously said:
”I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.”
You want an immigration lawyer who makes you feel that you and your goals are important. You do not want a lawyer who makes you feel like you are a burden or a pest. Luckily for you, there are a ton of amazing immigration lawyers across the country who will treat you with the respect that you deserve.
3. Can I Afford Them?
Before you sign a representation agreement with an immigration lawyer, make sure that you are comfortable with the fee. If you are concerned about the fee you can always shop around or explore the possibility of using a pro bono organization.
Conclusion: Green Card Through Marriage
Now that you have read this guide, I hope that you have a better understanding of the green card through marriage process. If you have any questions, feel free to reach out to me at ben@frearlaw.com.
