The Basic Requirements
and Multi-Step Process
1. The Basic Requirements for a U.S. Permanent Resident's Spouse to Get Green Card
To be eligible for a Green Card as a spouse or child of a U.S. permanent resident, the foreign spouse and the U.S. permanent resident must be legally married as evidenced by a valid marriage certificate. In addition, the lawful permanent resident must be residing in the United States at the time of the application. Children of the lawful permanent resident must prove relationships through birth certificates, adoption papers and marriage certificates. The alien applicants must also meet certain health and character requirements.
The spouse or child of U.S. permanent resident immigration category provides foreign spouses and children of U.S. permanent residents the opportunity to reunite with family living in the United States, and become U.S. permanent residents. The U.S. permanent residents have the right to live and work in the United States permanently, leave and return to the United States with few limitations, attend public schools and colleges, and become a U.S. citizen when eligible to do so.
Whether or not a permanent resident's spouse can be sponsored depends upon the timing of the marriage. This is a very important matter for anyone considering marrying someone from one's home country. It is vital that the marriage occur before the Green Card application (Form I-485) is approved.
If the primary applicant marries before the approval of the Form I-485, the alien spouse will be entitled to derivative immigration benefits. She or he is entitled to the same preference category as the primary beneficiary and the same priority date. This is true even if the marriage occurs well after the establishment of the priority date.
But if the primary applicant marries after the approval of his or her Form I-485, the primary applicant must file Form I-130 for the alien spouse, and the alien spouse may need to wait years to get the immigrant visa.
2. The Multi-Step Process for an Alien Spouse to Become U.S. Permanent Resident
A lawful permanent resident is a foreign national who has been granted the privilege of permanently living and working in the United States. If you want to become a lawful permanent resident based on the fact that you have a relative who is a citizen of the United States, or a relative who is a lawful permanent resident, you must go through a multi-step process.
First, the USCIS must approve an immigrant visa petition, Form I-130 Petition for Alien Relative, for you. This petition is filed by the U.S. permanent resident spouse as a sponsor, and must be accompanied by proof of your relationship. The U.S. Department of State must then determine if an immigrant visa number is immediately available to you, the foreign national, even if you are already in the United States. When an immigrant visa number is available, it means you can apply to have an immigrant visa number for you. You can check the status of a visa number in the Department of State’s Visa Bulletin.
If you are already in the United States, you may apply to change your status to a lawful permanent resident after a visa number becomes available to you, by filing for Adjustment of Status of Form I-485. If you are outside the United States when an immigrant visa number becomes available, you must then go to the U.S. Consulate servicing the area in which you reside to complete your processing. This is the other way to secure an immigrant visa number. Your spouse must prove that he/she can support you at 125% above the mandated poverty line.
If the alien spouse has been married for less than two years when the spouse enters the United States on an immigrant visa, the alien spouse's permanent resident status is considered “conditional”, in which the immigrant visa is a conditional resident visa or conditional Green Card. The couple must apply together to USCIS to remove the conditional status for the alien spouse, within the ninety days before the two-year anniversary of the spouse’s entry into the United States on the immigrant visa. The two-year anniversary date of entry is the date of expiration on the alien's Green Card.
3. The Immigrant Visa Application for Foreign Spouse outside of United States
Obtaining U.S. permanent residence through marriage to a U.S. permanent resident is a multi-step process. Some of these steps are required to be completed before the foreign spouse enters the U.S., and some can be completed after entering the U.S. For a foreign spouse, determining whether to apply for adjustment of status or consular processing will significantly depend on the location of the spouse.
If married outside the United States, the foreign spouse usually must remain in her or his country until she or he obtains the Green Card. In this case, the U.S. permanent resident needs to file an immigration petition and request that the U.S. Citizenship and Immigration Services to notify a U.S. Consulate in the country where the spouse lives.
Once the immigration petition is approved, the National Visa Center of the U.S. State Department sends a form/information package to the permanent resident's spouse, when the visa number is available. After the necessary forms are completed, the alien spouse goes to the U.S. Consulate overseas to apply for an immigrant visa. On the day that the spouse enters the United States on an immigrant visa, he or she becomes a U.S. permanent resident.
The immigrant visa application process in summary:
First, U.S. citizen spouse needs to file Form I-130 Petition for Alien Relative for the foreign spouse. This application should be filed accompanied by proof of the marriage, and the USCIS must approve the Form I-130 application.
Then, the U.S. Department of State must determine if an immigrant visa number is immediately available to the foreign spouse. The status of an immigrant visa number can be checked at the U.S. Department of State’s Visa Bulletin.
When an immigrant visa number becomes available for the foreign spouse, he or she can go to the U.S. consulate servicing the area to complete the immigrant visa application processing. The U.S. citizen spouse should prove that he/she can support the foreign spouse at 125% above the mandated poverty line.
4. Green Card Application for Foreign Spouse within the United States
If the foreign spouse resides in the U.S., it would then be possible to submit a petition for permanent residency and an application for adjustment of status. The papers filed can include applications for employment authorization (EAD) and a travel permit (Advance Parole). The USCIS issues the employment authorization and temporary travel permit early in the process.
The USCIS may examine identification, wedding photographs, and documents such as tax returns and insurance documents, and interview the couple to establish the legitimacy of the marriage. An affidavit of support from the petitioning spouse is also necessary.
The U.S. permanent resident needs to prove that the marriage was not entered into for the sole purpose of obtaining a Green Card. The burden is on the parties to establish the real marriage. At the same time, the foreign spouse should submit Form I-485 application, Green Card-type photographs, and numerous other USCIS forms, plus USCIS filing fees.
5. The Processing Time and Steps during the Family-Based Green Card Application
If you are planning on acting as a green card sponsor for a family member, various factors can stretch the process into months, depending on how long it takes you to gather documents and prepare the appropriate paperwork; who you plan to sponsor; whether there is a limit on immigrant visa numbers given out in that category; and how backlogged the various USCIS offices that you will deal with are at the time.
First, you will need to fill out USCIS Form I-130, and attach your U.S. citizenship or Green Card evidence, as well as proof of your relationship to your family member. USCIS' process for the petition can take several months. Usually later, you will need to prepare an Affidavit of Support on Form I-864, together with documents proving that you are able and willing to support the immigrant at an amount that is at least 125% of the U.S. Poverty Guidelines.
In addition, your family member will need to prepare various documents as his or her own application for a green card. The exact forms and process depend on whether your relative will be adjusting status in the U.S. or going through consular processing from another country. Your relative will also need to undergo a medical exam, and get the doctor's report to submit with the green card application. At every step of the way, you will be dealing with a government agency that is backlogged with other applicants. The typical processing steps you may encounter include:
- waiting a receipt notice after submitting Form I-130;
- if your relative will be coming from abroad and going to consular processing, awaiting transfer of the case to a U.S. consulate and correspondence from the National Visa Center;
- if your relative is in the U.S. and will be adjusting status inside U.S, awaiting a receipt notice and then a fingerprinting appointment waiting for the FBI to process your relative's fingerprints;
- waiting an interview with the U.S. consulate or USCIS office.
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