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Obtaining Green Card through Marriage to a U.S. Permanent Resident

1. Get Green Card through Marriage to a U.S. Permanent Resident 

Thousands of foreign-born people become engaged or married to U.S. permanent residents every year. The immigration process for Green Card through marriage varies based on whether a foreign national intends to marry the U.S. permanent residents in the U.S. or outside the U.S. Normally, a U.S. permanent resident would file an immigration petition with the United States Citizenship and Immigrations Services (USCIS). The U.S. legal permanent resident is called the sponsor, and the alien spouse for whom the immigration petition is filed is called the beneficiary.

When a foreign national marries a U.S. permanent resident, he or she is considered as a close relative of the U.S. permanent resident. There are numerical limitations to this family-based category, and the U.S. permanent resident spouse (husband or wife) in the U.S. can file an application of permanent residence for the foreign spouse with USCIS, once the marriage has taken place. The applicant will be required to demonstrate to USCIS that the marriage was entered into good faith, and not solely for the purpose of securing immigration benefits for the foreign national. 

A lawful permanent resident is a foreign national who has been granted the privilege of permanently living and working in the United States. If a foreign spouse wants to become a lawful permanent resident based on the fact that he or she married a U.S. permanent resident, the USCIS will approve an immigrant visa petition. This petition is filed by the U.S. permanent resident spouse and must be accompanied by proof of the marriage relationship.

A U.S. legal permanent resident can be the sponsor of a family-sponsored immigration petition. However, the sponsor has to meet certain requirements and legal obligations. The sponsor has to submit a legally binding affidavit of support for the beneficiary to USCIS, in which the sponsor guarantees to maintain the standard of living of the intending immigrant at a level not lower than 125% of the national poverty level. This obligation continues until the beneficiary has become a U.S. citizen, or has worked in the United States for 40 qualifying quarters. 

2. The Immediate Relatives and the Family-Sponsored Preferences

The "immediate relatives" of a U.S. citizen (parents, spouses, widows and children being unmarried and under 21 years of age) can immigrate to the United States without being subject to any numerical restrictions. They can apply for U.S. permanent resident status without any waiting time. The rest of the beneficiaries are divided into several groups called preferences. Each preference is given a numerical quota per year to limit the number of immigrants admitted into the United States. The immigrant visa dates on the Visa Bulletin of the U.S. Department of State are updated monthly, usually around the 14th of each month.

The close family members of U.S. citizens or U.S. permanent residents are divided into several groups called preferences. Family-sponsored immigration has an overall quota per year, plus unused numbers from employment-based preferences. Each preference is given a numerical quota per year to limit the number of immigrants admitted into the United States. 

The Immigration and Nationality Act (INA) sets an annual family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Also, INA prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

The following are the immigrant visa numbers for family-sponsored preferences:

First Preference: (F1) Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference. 

Second Preference: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers: 

A. (F2A) Spouses and Children: 77% of the overall second preference limitation,
of which 75% are exempt from the per-country limit; 

B. (F2B) Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third Preference: (F3) Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences. 

Fourth Preference: (F4) Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

3. The Definition of Marriage and Spouse in U.S. Immigration law

Marriage is a subject matter of the laws of the state or country where the marriage was entered into. Federal laws usually recognize the validity of a marriage if the marriage was valid in a state or another country where the marriage was entered into. However, according to The Defense of Marriage Act, U.S. Congress clarifies that the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or wife. Apparently, U.S. Congress interprets that marriage exists only between male and female.

Immigration laws stated that a person does not qualify as a spouse, husband, or wife for immigration purposes if the marital relationship was created by a marriage ceremony, where the parties were not physically present in the presence of each other, such as a proxy marriage, unless the marriage has thereafter been consummated.

4. The Alien Relatives Who Can Immigrate to the United States

An immediate relative petition can be filed by a U.S. citizen on behalf of a spouse, parent, or child. A preference petition is filed by a U.S. citizen on behalf of a son or daughter, or by a legal permanent resident on behalf of a spouse, son or daughter.

An "immediate relative" of a U.S. citizen is the spouse, parent, widow, or child of the U.S. citizen. Specifically, a "child" is the son or daughter of a U.S. citizen, who is unmarried and under the age of 21. An adopted child qualifies as long as the adoption was finalized before the child's 16th birthday. A stepchild qualifies as long as the marriage had occurred before the stepchild's 18th birthday. A "parent" must meet the same test as for the "child". A father-in-law or mother-in-law of a U.S. citizen are not "parents" of the U.S. citizen for immigration purposes.

The immigrant beneficiaries are strictly defined, and one has to meet the definition of its category. Those who do not meet the definitions cannot immigrate to the United States through family-based immigration. The beneficiaries include spouses and unmarried sons and daughters of lawful permanent residents.

A U.S. citizen or lawful permanent resident of the U.S. may file Form I-130, Petition for Alien Relative, to establish their relationship to certain alien relatives who wish to immigrate to the U.S. A separate form must be filed for each eligible relative.  As a U.S. citizen, you may file Form I-130 for: 

1) A child (unmarried and under 21 years of age); 
2) An unmarried son or daughter (over 21 years of age); 
3) A married son or daughter of any age; 
4) Parents; 
5) Brother or sisters; 
6) Spouse; 
7) Fiancee/Fiance. 

As a legal permanent resident, you may file Form I-130 for: 

1) Spouse; 
2) A child (unmarried and under 21 years of age); 
3) An unmarried son or daughter (over 21 years of age). 

5. The Basic Requirements of Green Card Petition for Spouse or Child

The spouse or child of U.S. Permanent Resident category provides foreign spouses and children of permanent residents the opportunity to reunite with family living in the United States and become permanent residents. 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.

As a green card holder, or permanent resident, you may petition for certain family members to immigrate to the United States as permanent residents. You may petition for the following family members:

1) Spouse, husband or wife;
2) Unmarried children under 21,
3) Unmarried son or daughter of any age.

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. lawful 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. Applicants must also meet certain health and character requirements.

If your relative is already in the United States legally, he or she may apply to adjust status to become a permanent resident after a visa number becomes available using Form I-485, Application to Register Permanent Residence or Adjust Status.

If your relative is outside the United States, your petition will be sent to the National Visa Center (NVC). The NVC will forward your petition to the appropriate U.S. consulate when a visa becomes available and your relative will be notified about how to proceed. This process is referred to as “Consular Processing.”

6. The Children's Green Card Eligibility in Marriage-Based Immigration Process

If you are applying for U.S. Green Card (lawful permanent residence) based on marriage to a U.S. citizen or a U.S. permanent resident, your foreign-born child may be eligible to obtain green card along with you. This is true whether or not the foreign-born child is the biological children of your petitioning spouse.

But the foreign-born child would not get Green Card automatically. The child will have to go through the same or a very similar immigration application process as you do. The child will have to prove that he or she is not inadmissible, and that the child will be financially supported along with you.

If your child are unmarried and under age 21, he or she will be placed in the same immigrant category of applicant as you. The result will be that the child can get a visa or green card at the same time as you do.

If your child is married or over age 21, they may or may not be able to get an immigrant visa, and any visa they might get will take years longer than yours to obtain. The eligibility will depend in part on whether your spouse is a U.S. citizen or a permanent resident.


 

 


 

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