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Marriage-Based Green Card: Everything You Need to Know

Apr 14, 2023 | adjustment of status, Green card

If you are a married to a U.S. citizen or a lawful permanent resident (LPR), you may be eligible for a family-based green card.

A green card allows you to live and work permanently in the United States, and eventually, to become a United States citizen.

In this article, we’ll cover everything you need to know about marriage-based green cards, including eligibility requirements, the application process, time line, and tips for success.

Eligibility Requirements for Marriage-Based Green Cards

To be eligible for a marriage-based green card, you must meet the following requirements:

1. You must be legally married to a U.S. citizen or an LPR

This means if you were previously married, that marriage ended legally, either through a divorce, annulment, or death of the previous spouse, before you married your current U.S. citizen or LPR spouse.

USCIS does not recognize bigamous marriages, even if your native country does.

2. Your last entry was with inspection and you were admitted into the country or you were paroled

This means you came with a valid visa and your were allowed to enter on that visa, or you were “paroled” by an immigration official after an interaction and allowed to be present in the country.

Even if you entered the country using a fraudulent visa or passport, or if you were “waived through” at a port of entry in a car, that entry counts as an entry “with inspection.”

If you entered without inspection, you have to show that you are the beneficiary of a petition filed on or before April 30, 2001. In certain situations, you will also need to show your physical presence in the United States on December 21, 2000 if you entered without inspection.

3. You must be “admissible” to the United States

This means that you must not have a criminal record, a history of immigration violations, or certain medical conditions that may make you inadmissible for entry into the United States. If you are deemed inadmissible, you may need an I-601 waiver.

4. You must prove that your marriage is bona fide

You must show that you did not get married solely to get a green card.

This is a very important component, because if USCIS does not believe that your marriage is bona fide, it can lead to a denial of the visa petition and the foreign national spouse being placed in removal proceedings.

If there is a finding of marriage fraud, it can lead to criminal liability and prosecution for both spouses, and can permanently prevent the citizen or LPR spouse from petitioning for anyone ever again.

5. You warrant a favorable exercise of discretion

Whether to give you a green card is an exercise of discretion by USCIS. So you have to be ready to show that you deserve it! This is especially true if you have any criminal history.

Application Process for Marriage-Based Green Cards

Once you determine that you are eligible, the application process for a marriage-based green card involves several steps:

1. File Form I-130

This is the first step in the process, and it involves submitting a petition to USCIS to establish the relationship between you and your citizen or LPR spouse.

You’ll need to provide proof of your marriage, such as a marriage certificate, and other documentary evidence that your marriage is bona fide, such as joint bank account statement and joint lease.

2. File Form I-485

If your spouse is a U.S. citizen, you can file the green card application along with your spouse’s visa petition.

If your spouse is only an LPR, then you may have to wait to file the green card application, depending on whether your preference category is current under the State Department’s Visa Bulletin.

When you file the green card application, you’ll also need to provide biometric data (such as fingerprints).

3. File Form I-765 (and I-131 if eligible)

With your adjustment application, you can also file an application for employment authorization.

Once USCIS issues employment authorization, you can lawfully work in the United States while your green card application is pending.

You can also obtain a Social Security card too, if you already didn’t have one.

If you are also eligible, you can apply for a travel permit (called “advance parole”) with your green card application to allow you to travel internationally while your case remains pending.

Travel on advance parole is risky for some foreign nationals, so it is best to speak with an experienced immigration attorney before obtaining and traveling on advance parole.

4. File Form I-864 or I-864EZ

Your petitioning spouse MUST submit an affidavit of financial support to show that they earn enough money to support the people in their “household.”

Household is defined specifically under immigration law, so your spouse must properly include the people they are supposed to include as part of their “household.”

Your petitioning spouse’s income must meet the requirements for their household size under the poverty guideline in effect at the time.

If your spouse’s income is insufficient to meet the poverty guideline, they may be required to have a “joint sponsor.”

USCIS looks at finances closely, so this is probably one of the most critical parts of your case.

5. Provide a medical exam report

You will also be required to submit a medical exam in a sealed envelope.

This medical exam must be conducted by a USCIS-authorized civil surgeon.

USCIS now requires COVID-19 vaccines to have been taken prior to approving the green card application.

However, you may be able to request a waiver of the vaccine requirement under certain circumstances, such as your religious beliefs.

6. Attend an interview

Marriage-based green card cases often get interviews.

However, USCIS has been waiving interviews for some marriage-based green card cases recently.

There is no way to know whether you will have an interview or not. You should prepare your case as if you will have an interview.

At the interview, you and your spouse will meet with a USCIS officer, who will review your application, supporting evidence, ask you both questions about your marriage.

If additional documents or a waiver is required, you may also be given a deadline to submit them before a decision can be made on your adjustment application.

Marriage-based green card interviews can be long and intimidating, and you will be asked about details of your marriage.

Marriage fraud interview

If USCIS has any doubts about whether your marriage is bona fide, the officer can ask you both to return for another interview, where both spouses will be separated and asked a series of questions to see whether you both answer similarly.

This is a called an “I-130 interview” or “marriage fraud interview” or a “Stokes interview.”  Some of these interviews can last 4-5 hours or longer.

You should never go to a marriage fraud interview unprepared or without a lawyer.

While there are no specific list of questions you can prepare from for such an interview, an immigration lawyer can generally help you prepare adequately for such an interview.

7. Receive Conditional or Permanent Green Card

If your marriage is less than two years old at the time you receive your green card, then you’ll receive a conditional green card.

When the marriage is more than two years old, you will get the 10-year permanent green card.

If you get a conditional green card, to remove the conditions on your green card and obtain a permanent green card, you’ll need to file Form I-751 within 90 days of the expiration of your conditional green card.

Time line for Marriage-Based Green Card Process

Time line is difficult to predict, but generally, you should expect the process to last anywhere from several months to a year or longer. That is just the reality.

Various factors contribute to your time line, such as whether USCIS asks you for additional evidence or whether they want to schedule you for an interview.

USCIS issues processing times on its website, but those processing times are not very reliable, as your case can move faster or slower than the time frame given.

Tips for Success in the Marriage-Based Green Card Process

Here are some of my tips, based on my 20+ years of being an immigration lawyer, to help you navigate the marriage-based green card process successfully:

Be honest

USCIS takes marriage fraud very seriously, so it’s important to be completely honest throughout the process.

If you have a lawyer, make sure to discuss everything honestly with your lawyer from the initial consultation, so that they can properly guide you.

Having a lawyer by your side with whom you can openly communicate and ask questions can make a world of difference going through this long process.

Start early

The process can take several months or even years, so it’s important to start as early as possible. This way, you are not feeling rushed and the process will not seem overwhelming.

You will need time to gather evidence.

Get organized

Keep track of all your important documents, USCIS receipts and notices, marital evidence, and deadlines, in a clear and organized manner.

Being organized will also put your mind at ease, knowing you have everything you are supposed to have and you know where to find it.

Seek professional help

If you’re unsure about any aspect of the process, or if you encounter any difficulties during the process, consider consulting and hiring an immigration attorney.

Even simple cases can turn into a nightmare if you file the wrong version of forms, send them to the wrong place, fail to submit the correct filing fees, miss a deadline, or fail to show up for an interview.

Most people just do not want to deal with the process alone, so having an attorney can take the pressure off your mind, so that you can focus on your family and work, but still get your immigration case completed.

Conclusion

A marriage-based green card can be a complex and lengthy process, but it’s worth it if you want to live and work permanently in the United States. By following the eligibility requirements, application process, and tips for success outlined here, you’ll be well on your way to obtaining your green card and achieving your American dream.

Ruchi Thaker