Most people are aware that applying for a green card through marriage to a U.S. citizen is one of the fastest ways of obtaining a green card in the United States. Unlike most other U.S. immigration matters, a foreign individual can apply for a green card through marriage to a U.S. citizen, assuming he or she is inside the U.S., even if he or she has an unlawful presence in the United States or has overstayed a visa. However, there are limited circumstances where one may not be eligible to apply for U.S. permanent residency through adjustment of status.
One is eligible to apply for a marriage green card by means of adjustment of status if he or she is inside the U.S. and is otherwise eligible. Some individuals are not eligible for adjustment of status. For example, the following types of individuals are not eligible for adjustment of status in the U.S.: 1) a foreign national who entered the United States without being inspected; and 2) a foreign national who entered the U.S. as a D-1 or D-2 Crewman (there are other circumstances which may also bar one from adjustment of status as well).
The first stage of the adjustment of status marriage based green card process is for the United State’s citizen spouse to submit an I-130 Immigrant Relative Petition on behalf of the foreign national spouse. The I-130 petition establishes the family relationship between the U.S. spouse and the foreign spouse.
The second step is for the foreign spouse to submit an I-485 Adjustment of status application either simultaneously with the I-130 petition or anytime after the I-130 has been sent and/or approved. Typically, most I-485 applications are submitted at the same time as the I-130 petition. In addition to the I-485 application, the foreign national will have to have a medical exam conducted by a USCIS designated surgeon who will complete an I-693 form as part of the medical exam. The I-693 must be submitted with the I-485 as part of the marriage green card application.
In addition to the medical exam, an Affidavit of Support must also be submitted with the marriage green card application. The Affidavit of Support is a highly important part of the application and must be completed by the U.S. spouse regardless of his or her income. The idea behind the affidavit of support is that the United States government does not want the foreign spouse to become a “public charge” (receive government assistance or welfare in the United States). If the affidavit of support requirements are not met through either the sponsor or a joint sponsor, then the application for adjustment of status will not be approved. The affidavit of support is a legally enforceable contract obligating the U.S. citizen spouse and any joint sponsor to financially support the foreign spouse under certain circumstances.
If the U.S. citizen does not meet the income guidelines for affidavit of support, which is common, then either a joint sponsor will be required or, in some cases, the income and/or assets of the foreign spouse can be used. The usual situation is that a joint sponsor is used and that person also completes an Affidavit of Support application in addition to the U.S. citizen spouse. A joint sponsor can be any U.S. citizen or permanent resident (green card holder) and he or she need not be related to either the U.S. citizen spouse or the foreign national spouse.
The Affidavit of Support is a long term commitment by all who sign it. It is legally enforceable by the U.S. government for any means-tested public benefits utilized by the sponsored foreign spouse. The obligation to support the foreign spouse ends when the foreign spouse becomes a United States citizen, has earned 40 work quarters (equivalent to approximately 10 years of working), dies, or permanently leaves the United States.
As part of the adjustment of status process, the foreign spouse will be allowed to apply for work authorization and advance parole while the application is pending. Work authorization will give the foreign spouse legal authority to work in the U.S., while advance parole can be used to travel outside of the U.S. while the adjustment of status application is pending. If you travel outside of the U.S. while your adjustment of status application is pending before receiving advance parole, you will have abandoned your adjustment application, unless you are in H-1B or L-1 status.
After filing the applications receipt notices will be issued by USCIS confirming receipt of the applications. In addition, a biometrics appointment will be scheduled for the foreign national spouse. There will also be a wait (approximately 45-90 days) for work authorization and advance parole. Shortly thereafter, a notice will arrive scheduling an appointment for an interview, which is the last step of the process.
Many dread the green card interview, whether it’s because of rumors heard from others, information obtained online, or just general fear of dealing with the government face to face. If you have entered your marriage in good faith, are well-informed regarding the interview process, and have all the necessary supporting documents, you have nothing to fear with a well-prepared case. It is important to work closely with your lawyer prior to the interview to make sure you are well-prepared for the interview and that you have gathered all the necessary supporting materials.
In the case of a green card marriage application, it is highly important that both spouses fully understand their particular case and the steps involved in the process. Competent legal counsel is important through all parts of the application process and therefore it is strongly advised that you work with an attorney experienced in these matters before moving forward. A green card is a highly sought after U.S. immigration benefit and something that should be pursued with great care.