If you are married to a U.S. citizen, you may qualify for a marriage-based green card. The rules surrounding marriage and green cards are detailed and complex, and largely depend upon whether the marriage was to a citizen or legal permanent resident and if they entered the country legally.
In order to obtain immigration benefits available to a spouse, there must be a valid marriage between the parties. Unlike many other immigration benefits, you can apply for a marriage green card even if you have unlawful presence in the U.S. or you have overstayed a visa.
Married to a U.S. Citizen
The husband or wife of a U.S. citizen is considered an “immediate relative” by law which means they are not held against any quota restrictions for receiving green cards via marriage. To start the process, the citizen would first need to submit Form I-130 on behalf of their spouse and if they entered the U.S legally, they 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) within a 90-day window and in some cases may be approved to travel overseas. If a green card is granted to a marriage that is less than 2 years old, a 2-year time limit will be imposed on the card. To receive a ten-year green card the couple needs to submit Form I-751 within the 90-day period before the expiration of the initial green card.
What happens if they divorce before the end of the 2 year period?
If a divorce occurs before the 2 year period ends, the foreign-born spouse is advised to file Form I-751 in order to apply for a “good faith marriage waiver”.
Apart from the spouse, unmarried children under the age of 21 and parents of U.S. citizens (over 21) may apply for a green card as an immediate relative.
Married to a Permanent Resident
In relation to green card applications based on marriages to citizens, there are more who fall into the category of marriages to U.S. permanent residents than married to a citizen. For that reason, the demand is often very high. As there are some risks involved in getting a green card by marriage application, our immigration attorneys review all cases very carefully to ensure a successful result.
One of the most important parts of the marriage-based green card process, which we can help you with, is the gathering and preparation of the application and supporting documents. In most situations, a marriage is valid for immigration purpose if it is recognized by the law of the state where it occurs.
However, a marriage that is legally valid 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. U.S. citizens applying for a fiancée visa or marriage green card must be aware that immigration officials will scrutinize their applications to ensure that the marriage is legitimate and bona fide, and not for the sole purpose of gaining immigration benefits.
The citizen and the foreign spouse must prove that the marriage is bona fide. If the citizen and foreign spouse have been married less than 2 years at the time the spouse becomes a permanent resident, a conditional 2-year green card will be issued.