Marriage-Based Green CardsAs discussed elsewhere on our website, U.S. citizens and lawful permanent residents (LPRs or green card holders) can petition for certain family members to receive lawful permanent resident status, which will allow them to live and work in the U.S. This article explains the process for U.S. citizens and LPRs to file petitions for their spouses to obtain a marriage-based green card. Please see our Family Petition article for information about sponsoring family members other than spouses. The immigration process for a foreign national married to a U.S. citizen or LPR may be complicated, and the respective immigration process depends on a variety of factors. You may want to seek the assistance of an immigration attorney. However, the basic procedures for U.S. citizens or LPRs to petition for their foreign national spouse is explained here to provide you with a general understanding. For an assessment of your situation, or for assistance, please contact the immigration attorneys in our Michigan office to schedule a consultation.
The first step for a U.S. citizen or LPR to sponsor his or her
foreign national spouse for LPR status (i.e. a green card) is the filing of Form
I-130, Petition for Alien Relative. This petition must be filed with U.S.
Citizenship and Immigration Services (USCIS) in the U.S. (Note that a very
limited number of U.S. Consulates will allow certain U.S. citizens to file this
petition directly with the Consulate.) The purpose of this petition is to
establish the bona fide nature of the marriage, to confirm that it is a “real”
marriage and not one entered into merely for the purpose of obtaining
immigration benefits. Once it is determined that the marriage is bona fide and
the petition is approved, either USCIS (or the Department of State) must
determine whether the foreign national spouse qualifies for LPR status under the
law, and whether he or she merits approval. Please note that a foreign national
spouse of a U.S. citizen is not entitled to a green card/LPR status; LPR status
is considered a discretionary benefit, and unless there are compelling negative
factors, discretion is generally favorably exercised, resulting in an approved
The rest of the process, which may occur concurrently with the
filing of the I-130, depends on a variety of factors. This article will discuss
adjustment of status and consular processing for foreign national spouses of
U.S. citizens and LPRs.
For foreign national spouses present in the U.S., it may be possible to adjust status to that of a permanent resident without leaving the U.S. This may be an option for foreign nationals who are lawfully present, such as those whose I-94 has not expired, as well as those who overstayed a visa and are no longer in legal status. This may be true even where the foreign national worked without authorization. However, those who entered the U.S. without inspection may not be eligible for adjustment of status. For more details about eligibility, please see our article about Adjustment of Status.
A foreign national spouse, who is in the U.S. and eligible
to apply for adjustment of status, may file the application (Form I-485)
concurrently with the I-130 petition filed by the U.S. citizen on his or her
behalf. This is because an immigrant visa is immediately available to a foreign
national married to a U.S. citizen upon approval of the I-130. This means that
it is possible for spouses of U.S. citizens to obtain a green card as soon as
the I-130 is approved.
In the majority of cases, the process culminates with
an in-person interview of the married couple by an Adjudication’s Officer at the
local USCIS Office, during which time a determination is made as to whether the
marriage is bona fide and whether the foreign national can and should be
approved as an LPR/green card holder. Foreign nationals with any type of
criminal record, including arrests or convictions, may be “inadmissible,” and
therefore not eligible for LPR status. In some cases there may be a waiver
available, which would allow someone otherwise ineligible to become an LPR to
adjust status anyway. Denial of adjustment of status may lead to removal
proceedings, particularly for foreign nationals with a criminal record. We
strongly recommend that foreign nationals with a criminal record of any type
contact our office for a consultation.
The process of adjustment of status
may take much less time and be much simpler than consular processing, explained
below. It generally takes USCIS between three and eight months to adjudicate
adjustment of status applications. However, this estimate changes and depends in
large part on which office processes the application. Processing time estimates
are accessible via the USCIS website,
that may be sought concurrently when filing for adjustment of status include
employment authorization (Form I-765) and advance parole (Form I-131). The
filing fee for Form I-485 automatically includes the fees for these
applications. Both employment authorization and advance parole applications take
approximately 90 days to adjudicate, which often means they will be decided
before the adjustment of status application is decided. An advance parole
document allows someone who has a pending marriage-based adjustment of status
application to leave the U.S. and return while the application remains pending.
Anyone with a pending adjustment of status application who departs the U.S.
without advance parole may not be admitted to the U.S. and his or her
application for adjustment of status may be deemed abandoned and terminated by
Consular Processing Based on Marriage to a U.S. Citizen
where the foreign national spouse is outside the U.S. (or if he or she is in the
U.S. but not eligible for adjustment of status), he or she must seek an
immigrant visa (resulting in LPR status) through consular processing. This
process may take much longer than the adjustment of status method, often lasting
at least a year.
Again the first step is for the U.S. citizen spouse to file
the I-130, Petition for Alien Relative, with USCIS in the U.S. If the petition
is approved it will be forwarded to the National Visa Center (NVC). The NVC will
request additional documentation and fees from the petitioner. The petitioner
has up to one year to provide the documentation and pay the fees, or the
approved petition will be terminated and no longer viable. The petitioner may
notify the NVC prior to the one-year deadline that he or she intends to pursue
the visa and request that it not be terminated. Once the petition is terminated,
a new I-130 must be filed.
Upon receipt of the properly submitted
documentation and fees, the NVC will then forward the petition and supporting
documentation to the applicable U.S. Consulate, depending on the location of the
foreign national spouse. The NVC, in coordination with the U.S. Embassy or
Consulate will schedule an interview at the appropriate U.S. Embassy or
Consulate. The foreign national will be notified of any procedures or
documentation necessary for the interview. This includes details about how and
where the foreign national spouse may complete the medical examination prior to
the interview. Each U.S. Consulate maintains its own rules and procedures for
preparing for and attending immigrant visa interviews. Wait times for interviews
depend on the U.S. Consulate.
For those foreign national spouses who are
present in the U.S. but not eligible for adjustment of status, which is true for
most of those who entered the U.S. without inspection, they may be able to
obtain LPR status via consular processing. In this case, he or she will need to
depart the U.S. and attend the interview at the U.S. Consulate. Depending on the
country of origin, he or she may need to obtain civil documentation requested by
the NVC in person, and therefore may need to depart the U.S. well before the
U.S. Consulate even receives the petition. If would like assistance with this
process, please contact our office for a consultation.
Consular Processing Based on Marriage to an LPR
For foreign national spouses of LPRs, rather than
of U.S. citizens, the major difference in the process is that the foreign
national spouse cannot automatically apply for and/or obtain a green card when
the I-130 is approved by USCIS. Instead, he or she must wait until an immigrant
visa becomes available before the NVC will request and accept the documentation
and fees required to forward the petition to the U.S. Consulate for an
interview. The wait time for visa availability is found at the U.S. Department
Visa Bulletin website. Spouses of LPRs fall under the
“Family-Sponsored Preference 2A” category. According to the July 2016 Visa
Bulletin, immigrant visas are available to foreign national spouses for all
chargeability areas except China, India, Mexico, and the Philippines, whose
I-130 was assigned a priority date before November 15, 2014. This means the
current wait time is at least two years from the time the USCIS approves an
I-130 to the time NVC will be ready to begin the immigrant visa process.
This article is intended only for informational purposes and does not constitute legal advice. Please contact our office to schedule a consultation if you would like to discuss your case in detail.
The Law Firm of Antone, Casagrande & Adwers, P.C. helps individuals and businesses worldwide with all of their US immigration needs including employment visas, obtaining green cards for business and corporate employees and family members, visas for doctors, nurses, therapists, and other health care workers, together with waivers for physicians under J visa training program, labor certifications (PERM), national interest waivers, marriage-based adjustments and green cards, fiancee visas, family immigration preferences, students, naturalization and citizenship, including medical waivers, asylum, deportation, hardship waivers, voluntary departure and removal. We serve clients in southeast Michigan including the Detroit Metro area, Ann Arbor, and Lansing. With offices in Farmington Hills, MI, we are close to Southfield, Troy, West Bloomfield, Birmingham, Novi, Rochester and Auburn Hills in Oakland County; Canton, Plymouth, Dearborn, and Detroit in Wayne County; Warren, Sterling Heights, and Mount Clemens in Macomb County; Brighton and Howell in Livingston County; Lansing in Ingham County; City of Monroe in Monroe County, Ann Arbor in Washtenaw County; Grand Rapids in Kent County; Battle Creek in Calhoun County; Kalamazoo in Kalamazoo County; Benton Harbor in Berrien County; Holland in Ottawa County; Flint in Genesee County; Ludington in Mason County; Muskegon in Muskegon County; and Traverse City in Grand Traverse County, Michigan. Although many of our clients are located in the tri-county area of Wayne, Oakland and Macomb, we also serve clients in many cities and states in the U.S. including Cleveland, Toledo and Cincinnati, Ohio; Chicago, Illinois; Milwaukee and Green Bay, Wisconsin; Indianapolis, Indiana; Buffalo, New York; Los Angeles, San Francisco and San Diego, California; Phoenix and Tucson, Arizona; Dallas, Houston, El Paso and Galveston, Texas; Miami, Florida; Washington D.C.; Virginia, Minnesota, Pittsburgh and Philadelphia, Pennsylvania, and many others. In addition to the United States, we also serve Canadian nationals from numerous provinces in Canada, including Toronto and Windsor in Ontario; Montreal in Quebec; Halifax in Nova Scotia; and Vancouver, British Columbia. We also serve cities and countries such as London, England; Scotland and other countries of the United Kingdom (U.K.); Mexico, Paris, France; Frankfurt and Berlin, Germany; Tokyo, Japan; India; Brazil; Rome, Italy; Shanghai and Beijing, China; Belgium; the Philippines, and many other countries in Europe, Asia and South America.