MARRIAGE-BASED GREEN CARD
GREEN CARD THROUGH MARRIAGE TO U.S. CITIZEN OR LAWFUL PERMANENT RESIDENT (LPR):
The marriage green card process is one of the most common and closely monitored pathways to lawful permanent residence in the United States. Under U.S. immigration law, this process allows a U.S. citizen or lawful permanent resident to sponsor their foreign-born spouse for a green card, granting them the right to live and work in the country. Green card holders benefit from permanent residence, which provides stability, access to healthcare and education, and the ability to build a future together in the U.S. For many couples, obtaining a marriage green card is the first step toward achieving the American dream and, eventually, U.S. citizenship.
A U.S. citizen or LPR can bring his or her spouse to live in the United States as an LPR.
If the foreign national spouse of a U.S. citizen is inside the United States (through lawful admission or parole), the U.S. citizen can file Form I-130, Petition for Alien Relative (I-130 petition), and Form I-485, Application to Register Permanent Residence or to Adjust Status (AOS application), at the same time. This process is known as adjustment of status, which allows eligible individuals already present in the U.S. to apply for a marriage based green card without leaving the country. A filing fee is required for both Form I-130 and Form I-485, unless the applicant qualifies for a fee waiver. Immediate relatives, such as spouses of U.S. citizens, are not subject to annual visa limits, so visa availability is not an issue for them, and their applications generally process more quickly than other family based immigration categories.
However, if the foreign national spouse is outside the United States, the U.S. citizen must first file the I-130 petition. Following approval of the I-130 petition and completion of National Visa Center (NVC) processing, the foreign national spouse applies for a green card through consular processing. This involves attending an immigrant visa interview with consular officers at the appropriate U.S. Consular post abroad. During the interview, consular officers assess the authenticity of the relationship by asking questions about personal history, daily routines, finances, family, and future plans.
For an LPR whose foreign national spouse is living in the United States (through lawful admission or parole), he or she must first file the I-130 petition. After approval of the Form I-130 and upon availability of an immigrant visa number, the foreign national spouse can submit an AOS application to adjust status. A filing fee is required for these forms unless a fee waiver applies. Except in limited circumstances, the foreign national spouse must have continuously maintained lawful status in the United States in order to adjust status. For spouses of LPRs, visa availability is a key factor, as they fall under the F2A family based immigration category and may face waiting periods depending on the visa bulletin.
If the foreign national spouse of an LPR is outside the United States, the LPR must first file the I-130 petition. Following approval of the I-130 petition, and provided immigrant visa numbers are available, upon completion of NVC processing, the foreign national spouse applies through consular processing and attends an immigrant visa interview with consular officers at the appropriate U.S. Consular post abroad. Visa availability for spouses of LPRs depends on the family based immigration category and may result in waiting periods before the green card can be issued.
Eligibility and Requirements
To qualify for a marriage green card, the sponsoring spouse must be either a U.S. citizen or a lawful permanent resident. The marriage itself must be legally valid and recognized in the place where it was celebrated, and the couple must demonstrate a genuine marriage relationship. Essential documentation includes a marriage certificate, birth certificates for both spouses, and evidence that the marriage is not solely for immigration purposes. The sponsoring spouse must be at least 18 years old and meet specific income requirements to support the foreign spouse. Additionally, the foreign-born spouse must complete a medical examination as part of the process. Meeting all eligibility requirements and submitting accurate, complete documentation is critical to avoid delays or denials in the marriage green card application.
Validity of Marriage
The Immigration and Nationality Act (INA), the primary framework for U.S. immigration laws, doesn’t explicitly define the term “marriage.” However, it does define “spouse,” but only for marriages that aren’t consummated. This definition implies that a valid marriage for immigration purposes must be celebrated in the presence of both parties unless it’s already consummated.
While the INA doesn’t define “marriage” or provide a specific framework for analyzing valid marriages for U.S. immigration purposes, the interpretation of case law has established a consistent approach. This framework has been consistently applied by U.S. Attorneys General, the Board of Immigration Appeals (BIA), immigration officials, and most federal courts to determine the validity of marriages under the INA. The Department of State’s Foreign Affairs Manual also outlines this framework.
To determine the validity of a marriage for U.S. immigration purposes, the framework consists of three key components: (1) the laws of the place where the marriage took place or was celebrated; (2) the laws of the state of residence or proposed state of residence in the United States; and (3) the bona fides of the marriage for immigration purposes. A marriage must meet all three components to be valid under U.S. immigration laws.
When establishing eligibility for a marriage based green card, applicants must provide required documents such as marriage certificates, birth certificates, divorce decrees, and death certificates to prove the validity of the marriage and the legal termination of any previous marriages. Previous marriages must be legally terminated, and divorce decrees or death certificates are required as proof. Additionally, a birth certificate or naturalization certificate may be required to establish citizenship or identity.
Although the United States and all its constituent states unanimously recognize that a marriage, valid where celebrated, is valid everywhere, two additional variables must be met. Therefore, when evaluating the validity of a marriage for immigration purposes, while the primary focus is on the law of the state or country where the marriage was allegedly contracted, the couple’s relationship should not violate the strong public policy expressed in the criminal law of their state of domicile or intended state of domicile, and the marriage must meet the bona fide requirements.
Polygamous, incestuous, and proxy marriages (unless later consummated) are not recognized for immigration purposes. Some states recognize common-law marriages.
Bona Fide Marriage
The marriage must not be a sham marriage, meaning it was primarily entered for immigration purposes. If the couple gets divorced within two years of the noncitizen obtaining LPR status based on the marriage, there is a presumption that the marriage was a sham. Marriage must be in existence—not legally terminated—at the time the permanent residency application is adjudicated, although the marriage need not be “viable.” If the parties are separated, more proof will be required to demonstrate that the marriage was bona fide at the time it was entered. If the parties married while the beneficiary was in immigration proceedings, they will have to establish through clear and convincing evidence—as opposed to a mere preponderance of the evidence—that the marriage is bona fide.
To prove a bona fide marriage for a marriage based green card, applicants should provide substantial evidence of a genuine relationship. Key pieces of evidence include joint bank accounts, shared leases or mortgages, photos together, and other documents showing a shared life. During the marriage green card interview, officers often ask about the couple’s relationship history, such as how they met, early interactions, and important milestones like engagement and wedding plans. Officers may also inquire about the couple’s future plans, including intentions regarding children, residence, careers, and upcoming travel, to assess the authenticity and stability of the relationship.
Conditional Green Card or Lawful Permanent Resident Status
Foreign national spouses of U.S. citizens and LPRs receive conditional permanent resident status unless the marriage is more than 2 years old at the time of granting the immigrant status. The two-year period is measured from the date of the marriage to the date residency is granted. Thus, if a person obtained an immigrant visa at a U.S. embassy indicating that they are a conditional resident (CR), but they entered the U.S. after being married for more than two years, they would enter as a lawful permanent resident (LPR) rather than a conditional resident.
This nonrenewable conditional permanent residence status is intended to help USCIS determine if such marriages are bona fide. During the two-year conditional period, USCIS may terminate the foreign national’s conditional status if it determines that the marriage was entered into to evade U.S. immigration laws or was terminated other than through the death of the spouse. If a conditional green card expires without timely filing to remove the conditions, the individual may lose permanent resident status. After successful removal of conditions, the foreign spouse receives a permanent green card, which is valid for 10 years.
Removal of Conditions (Conditional to Unconditional Green Card) by Joint Petition
Within 90 days before the end of the two-year conditional period, the foreign national and his or her U.S. citizen spouse must jointly petition to have the conditional status removed. If the petitioner and beneficiary fail to file the joint petition within the 90-day period, a waiver must be obtained to avoid loss of legal status. Assuming conditions in the law have been met and an interview with an appropriate immigration official uncovers no indication of marriage fraud, foreign national’s spouse conditional resident status (green card) converts to unconditional resident status (green card).
Waiver of Joint Filing for Removal of Conditions on Green Card
If the foreign national and his or her U.S. citizen spouse cannot file jointly (where, for example, the couple is divorced), the noncitizen may file a waiver of the joint filing requirement. There are limited exceptions to the joint filing requirement, such as cases involving abuse, extreme hardship, or other special circumstances.
The waiver may be filed before, during, or after the 90-day filing window that applies to jointly filed petitions. In addition, a waiver may be filed while in exclusion, deportation, or removal proceedings as long as the immigration court has not issued a final order.
A waiver may be granted under even if the marriage is terminated or there is another disqualifying reason if the foreign national demonstrate:
- Extreme Hardship if Alien Is Removed
- Qualifying Marriage Entered into in Good Faith but Terminated Other than through Death of Spouse
- Spouse Battered or Subjected to Extreme Cruelty
- Spouse in Bigamous Relationship Subject to Battering or Extreme Cruelty
- Multiple Waiver Grounds May Be Asserted
Benefits and Rights
Once approved, green card holders gain the right to live and work anywhere in the United States. They can access healthcare, pursue educational opportunities, and eventually apply for U.S. citizenship. Green card holders may also sponsor certain family members for immigration benefits, travel internationally with fewer restrictions, and enjoy the protection of U.S. laws. Additional benefits include eligibility for a social security number, a driver’s license, and other government services. However, green card holders must maintain their permanent resident status, comply with U.S. laws, and fulfill tax obligations to retain their immigration benefits.
Denial and Review in Removal Proceedings
If USCIS denies the joint petition or waiver of joint petition, it must provide written notice of the decision stating the reasons for the denial. USCIS will instruct the conditional resident to surrender any Green Card in their possession. The foreign national’s lawful immigration status will terminate, and they will be served with a Notice to Appear (NTA) starting removal proceedings.
There is no appeal available from USCIS’s denial of joint petition or waiver of Joint petition, but once the foreign national is in removal proceedings, they can ask the immigration judge to review the denial. In these proceedings, the agency bears the burden of proving by a preponderance of the evidence that the information contained in the petition is false and that its denial of the petition was proper. Denial of the joint petition or waiver of joint petition can be reviewed by an immigration judge only if the foreign national previously filed it with USCIS; the joint petition or waiver of joint petition cannot be filed for the first time with the immigration judge.
Path to Citizenship
After securing a marriage green card, the foreign-born spouse may pursue U.S. citizenship through naturalization. To qualify, they must have held lawful permanent resident status for at least three years, have been physically present in the U.S. for at least 18 months during that period, and meet all other eligibility requirements. The naturalization process includes filing Form N-400, attending a biometrics appointment, and passing a citizenship test. Achieving U.S. citizenship offers significant advantages, such as the right to vote, hold public office, and travel with a U.S. passport. Unlike green card holders, U.S. citizens are not subject to residency restrictions and enjoy greater security and flexibility for themselves and their families. Understanding the path to citizenship is essential for those planning their future in the United States.
Frequently Asked Questions
Do U.S. citizens have an advantage over permanent residents when petitioning?
Yes. U.S. citizens can petition for more types of family members, including parents and married children, and may have shorter wait times compared to permanent residents. They also can take advantage of sponsoring unlimited immediate relatives.
What is the difference between “Numerically Limited” and “Unlimited” family categories?
Numerically limited categories, covering most family-sponsored immigrants, include preference categories with annual caps. When demand exceeds supply in a preference category, approved petitions enter a queue until their priority date becomes current as listed in the monthly Visa Bulletin. Unlimited categories only include immediate relatives of U.S. citizens and are not subject to priority dates.
What documents are needed for a family-sponsored immigration petition?
Required documents generally include proof of the relationship (such as birth or marriage certificates), evidence of the sponsor’s legal U.S. status, and the necessary completed application forms.
How can I bring my fiancé to the U.S.?
To bring your fiancé to the U.S., you can apply for a K-1 fiancé(e) visa. This visa allows your fiancé to legally enter the United States for the express purpose of getting married within 90 days of their arrival. After getting married, your fiancé can then apply for Adjustment of Status to obtain permanent resident status.
Can my relative remain in the U.S. while waiting for a family-sponsored green card?
Usually, applicants must maintain lawful status or wait abroad until their visa is available. Adjustment of Status within the U.S. may be possible in certain cases.
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I worked with Rabindra for preparing my RFE response. Throughout the process he has been really professional and detail oriented. He is super helpful, accessible and responded quickly to all my questions . His understanding about the subject matter was extremely thorough and professional. It was really a nice experience working with him. He...
Simran
Attorney Rabindra Singh is very knowledgeable and extremely reliable. He is very professional, focused, and detail-oriented. His work is top-notch. He is a combination of generosity and proficiency. I am so grateful to have found him. I was searching for an attorney to help me in filing a U visa petition. I come to...
Sreedevi
He is an outstanding, friendly, caring, listens, truthful, honest, responsive immigration attorney.I had met him on a couple of occasions as I needed some advice. He was kind and patient. He was attentive to what I had to say and gave me very good directions. Mr Rabi Singh is an excellent immigration attorney. He...
anonymous
We had a great experience with Mr Rabindra Singh. He was very patient and answered all of our questions and in the end helped us get the result we wanted. In my case we had to file for Nunc pro for H4. He gave the confident and prepared the petition. It got appoved. So...
Soorya
I had met him on a couple of occasions as I needed some advice. He was kind and patient. He was attentive to what I had to say and gave me very good directions. I would definitely recommend him.
Kalpana
We had a great experience with Rabindra. He was very patient and answered all of our questions and in the end helped us get the result we wanted. I would highly recommend working with him.
anonymous
I am an Australian Citizen. I hired Rabi Singh for extending my E-3 status in the United States. He was super helpful and guided me so well throughout the process. I highly recommend his and HSD immigration services.
anonymous
Would highly recommend Rabindra & his team. We got our H4 EAD quickly. We were expecting delay due to covid times but were happily surprised. Rabindra was pretty thorough and responsive during the whole process. We are also working on our green card application EB2 with him. Hoping it’ll be approved soon too.
anonymous
I worked with Rabindra to file our adjustment of status for an approved NIW case. He was so accurate when filling out the forms and collecting documents and it is why our case got approved without any REF. His price was so reasonable for the work done comparing to the others. Thank you Rabindra!
anonymous
Rabindra Singh (HSD immigration) and his team assisted very professionally, patiently with the National Visa Center (NVC) processing and Employment-Based Immigrant Visa processing at the U.S. Consulate in Mumbai, India. For sure, I will refer my friends and family who need any immigration assistance since Rabi and his team gave exceptional service to me....
Ravinder n