The rules surrounding marriage by a foreign national, leading to a green card, are detailed and complex, and largely depend upon whether the marriage was to a citizen or legal permanent resident and if the foreign national entered the country legally.
In order to obtain immigration benefits, there must be a valid marriage between the parties. Unlike many other immigration benefits, a citizen can apply for a marriage green card even if the foreign national has an unlawful presence in the United States.
Marriage to a US Citizen
The husband or wife of a U.S. citizen is considered an “immediate relative” by law which means they are not restricted by any quota for receiving green cards via marriage. To start the process, the citizen first needs to submit an I-130 on behalf of their spouse and if the spouse entered the U.S legally, he or she can file the I-485 adjustment of status in order to stay within the U.S.
Typically, the spouse will be issued an Employment Authorization Document (EAD) and in some cases may be approved to travel overseas before receiving a green card. If a green card is granted for a marriage that is less than 2 years old, a 2-year time limit will be imposed on the card.
One of the most important parts of the marriage-based green card process is gathering and preparing the application and supporting documents. In most situations, a marriage is valid for immigration purposes if it is recognized by the law of the state where it occurs.
However, a legally valid marriage may still be disregarded if it is found to be a “sham marriage”, entered into by the parties to obtain immigration benefits and without any intention to live together as husband and wife.
Although getting a green card through marriage can often be the easiest way to obtain residency for a non-U.S. citizen, approval is not automatic. The citizen and the foreign spouse must prove that the marriage is bona fide (legal).
If you have received your green card through marriage and wish to remove the condition after two years, you will need to submit jointly an I-751 Petition to Remove Conditions and pay the $595 filing fee along with the $85 biometrics fee.
The USCIS requires you to submit the I-751 at least 90 days before the end of your two-year period. If you don’t do so, you may find yourself in an overstay status when your marriage-based green card expires, which could have negative consequences for future immigration options.
Legal Requirements for a Marriage-Based Green Card
The marriage-based green card is one of the most scrutinized U.S. immigrant visas for processing. To qualify, you must present your case to the immigration officials to prove you meet the following legal requirements:
- You must be legally married: A marriage can only be considered legal if the government in the country where the marriage took place officially recognizes it. Therefore, you will need to prove this by presenting your marriage records officially issued by the government.
- Previous marriage(s) must have been legally terminated: Neither the petitioner nor the beneficiary can have another active marriage. If any or both of you have previously married, you must provide proof showing that the previous marriage has been terminated by legal means. The required evidence for this includes a divorce or death certificate.
- Your marriage must be bona fide: A marriage is considered bona fide if the two parties entered into it with the intention to start a family together. You will be asked many questions to ascertain that the marriage isn’t a sham entered into in order to fraudulently obtain a permanent residence. A series of documents will also be required to show how your relationship evolved to become a marriage. If your marriage was done in secret and didn’t involve relatives and friends, this may be a red flag.
- The sponsor must have U.S. citizenship or lawful permanent residence.
Required Documents for a Marriage-Based Green Card
The documents may vary depending on each individual’s case. However, the following are the generally required documents for a marriage-based green card application:
- A passport valid for at least six months beyond your planned date of entry into the U.S.
- Affidavit of Support: The I-864 Affidavit of Support must be completed by the petitioner to show that they have the ability to support the beneficiary financially when they start living in the U.S. The petitioner must prove that his or her income is at least 25% higher than the US government poverty guideline.
- DS-260: Immigrant Visa Alien Registration Application
- Two (2) copies of 2×2 photographs
- Beneficiary’s Civil Documents: This includes birth and marriage certificates, court and prison records, marriage termination documents, military records, and/or police certificates.
- Completed immigration medical examination forms.
Once the USCIS is convinced that all the necessary documents and procedures have been completed, a visa interview will be scheduled. The beneficiary, petitioner, and attorney will receive notifications containing the time, date, venue, instructions, and the required documents for the interview.
Removal of Green Card Conditions in Cases of Divorce
When the foreign national spouse of a US citizen adjusts status before a two-year wedding anniversary, the green card comes with conditions. Those conditions mean that the card expires in two years after its issuance and that you have to remove the conditions within 90 days of its expiration date by filing Form I-751 jointly with your U.S. citizen spouse in order to receive a 10-year permanent resident card.
If a couple divorces or makes plans to divorce before the green card expires, it is still possible to remove the conditions and get a 10-year card even if you do not file jointly with your spouse. This is done by filing a waiver of the joint filing requirement to remove conditions.
The applicant must first indicate the basis for waiver based on one of the following situations:
- You and your U.S. citizen spouse entered into the marriage in good faith, but the U.S. citizen spouse subsequently died
- You and your U.S. citizen spouse entered into the marriage in good faith, but the marriage was later terminated due to divorce or annulment
- You and your U.S. citizen spouse entered into the marriage in good faith and have remained married, but you have been battered or subject to extreme cruelty by the U.S. citizen or permanent resident spouse, or
- The termination of your status and removal would result in extreme hardship.
An applicant also has to provide evidence to establish the selected waiver claim including the following:
- Documents that show you entered your marriage in good faith
- Documents that show you are no longer married
- Documents that show spousal abuse
- Documents that show you will endure extreme hardship if you return to your country of origin
Contact Donald Gross Law for a free 30-minute consultation to start the application process for your marriage green card or removal of conditions.