Understanding Marriage Based Green Cards

a U.S. citizen with his wife who obtained a marriage based green cardImmigrants who are married to U.S. citizens or permanent residents may qualify for a marriage-based green card. While most visas require legal entrance to the U.S., a marriage-based green card may be available if you have unlawful presence in the U.S. or have overstayed a visa. The following guide will help you get started in determining whether you qualify for a green card due to marriage.

When Married to a U.S. Citizen

The spouse of a U.S. citizen is considered an immediate relative, meaning that immigration quota restrictions for green cards do not apply to them. To start the green card process, a citizen must file Form I-130 or I-485 on behalf of their spouse, depending on whether the spouse has already entered the U.S. and needs their status adjusted. The immigrant spouse can then be issued an Employment Authorization Document within 90 days. If the marriage is less than two years old, the green card will only last for two years. A 10-year green card will be issued if the couple submits Form I-751 within 90 days before the expiration of the original green card.

If the couple divorces before the end of the two-year green card period, the immigrant spouse should file Form I-751 to apply for a “good faith marriage waiver,” which shows that the marriage was not fraudulent.

When Married to a Permanent Resident

Demand for green cards for spouses married to permanent residents of the U.S. is high. In most cases, these marriages are considered valid as long as they are legally recognized by the state where they occur. However, the marriage may still be disregarded if it is found that the couple got married solely to obtain immigration benefits.

As when marrying a U.S. citizen, a green card will last for two years. To remove any conditions on the card, you will need to submit an I-751 Petition to Remove Conditions within 90 days before the end of the two-year period and pay a filing and biometrics fee.

Applying for a Green Card When Outside of the U.S.

a United States green card obtained by an individual on a K-1 visaWhen seeking a green card outside the U.S., you can become a permanent resident through consular processing. In this process, USCIS issues a K-3 visa, which allows you to become a permanent resident upon entry to the U.S. You can then join your spouse in the U.S. while your green card is being processed.

The Marriage Based Green Card Process

Your initial interview will be scheduled about three or four months after filing initial paperwork. After you file the I-130 petition, USCIS will note your priority date, or the date they received your petition, which will then take a minimum of six months to process. However, a fixed number of green cards for people not designated immediate relatives are available each year, and there is usually a backlog of visas.

When the dates within the Department of State’s monthly visa bulletin match or pass your priority date, your date will be considered current. You can then file for adjustment of status by filing an I-485 form, which automatically adjusts your status to that of legal permanent resident after about six months. You can also travel to a U.S. consulate or embassy for an interview with a consular officer to undergo the consular processing route. If you are outside the U.S. when your priority date becomes current, you can only use the consular process. Your marriage-based green card process cannot be shortened by premium processing.

Marriage Based Green Card Costs

In addition to travel costs and attorney fees, USCIS requires the following payments:

  • $535 fee for the I-130 petition
  • $85 biometrics services fee
  • I-485 fees, as applicable

K-1 Visa Special Requirements

If you have a K class visa and want a green card through marriage, your spouse will need to file a Form I-130 petition on your behalf. When your petition is approved and your priority date is current, you can file the I-485 form that will have your K class status adjusted to immigrant green card status. While you typically do not not have to go through a consular interview if you are already in the U.S., USCIS may request one regardless.

Following-to-Join Benefits

man playing with child at the airport after they received marriage based green cardsChildren may be candidates for follow-to-join benefits, which allow them to accompany you to the U.S. If your children are not permanent residents, but you have obtained your green card through an immigrant visa preference level, you can submit the following paperwork to have them follow without filing a separate petition for them:

  • An I-824 Application for Action on an Approved Petition
  • A copy of the I-130 form used for your green card
  • A copy of your green card
  • A copy of the I-797 Notice of Action that you received with your green card petition

Denial of a Green Card

If your green card is denied, it may be because your marriage was not seen as legitimate. To avoid this, be sure to submit sufficient evidence of your relationship to show that it was not undertaken solely to receive a green card. You may also be denied if you have a criminal history or one of violating your immigration status in the past. Errors and inconsistencies on your application can also cause problems though, your application may be rejected instead of denied, allowing you to correct the mistake and file a new fee. If your application is denied, USCIS will send a letter describing how to appeal the decision if desired.

Working with an Immigration Attorney

Speak with the attorneys at Johnson and Masumi for more information about marriage-based green cards and applications. The firm’s experienced attorneys can help you select the right application, fill it out, compile evidence of your relationship, and submit the necessary forms, helping you increase your chances of having your application accepted. The firm can assist with green cards, student visas, worker visas, fiancé visas, deportation cases, and more.

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