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Marriage-Based Green Cards

Applying for U.S. lawful permanent residence (a green card) based on marriage to a U.S. citizen or lawful permanent resident (LPR) is relatively straightforward, but there is still lots to know because marriage does not offer immediate or automatic US Citizenship, rather, applicants must go through a long and demanding application process and prove that their marriage is real. There are multiple possibilities of obtaining legal status through a US Citizen Spouse. We intend to provide a brief overview of the options in this article.


Legal Requirements for a Marriage-Based Visa or Green Card

If you are married to a US Citizen or Permanent Resident, you can apply for Green Card based on your marriage. You and your spouse must prove the following elements: you are legally married; your marriage is real and not entered into solely with the intention of procuring Green Card; proof of your spouse’s US Citizenship or Lawful Permanent Resident status; neither of you is married to anyone else. Let’s discuss these requirements one by one.


Legal Marriage

Your marriage must be recognized by the government in the country or state in which you were married. You do not need to marry in the US for your marriage to be considered legal.  As a general rule, relationships that have not been formalized are not recognized by the US Immigration Authorities. However, there are exceptions to this rule: If you have lived together with your spouse in a place the government of which recognizes common law marriages, this may be enough for you to show that your marriage is legally recognized in that state or country. Many kinds of marriage procedures may be recognized as long as they are recognized in your home country. In the US, each state has its own marriage laws. For example, some allow couples to marry after reaching the age of 18, others require parental consent to marry at 18; family ties between the spouses may present an issue when formalizing marriage. Lastly, you will need to present the USCIS with a document showing you are legally married (unless, again, an exception applies).


Bona Fide Marriage: the term bona fide means in good faith. A bona fide marriage is one in which the spouses intend to establish a life together. However, a marriage entered into for the sole purpose of getting the immigrant spouse a green card Is never bona fide. The US Government enforces this requirement very strictly, thus, you will need to present extensive documentation in order to convince the government that your marriage is legitimate.


Marriage to a Citizen or Permanent Resident of the United States: Only these two types of people can obtain Green Card for their spouses. The more difficult scenario between the two is where the petitioning spouse is a Lawful Permanent Resident. Because it is possible to lose once US Permanent Residence, the immigrant spouse who has not finished the application process for a Green Card would lose his or her right to immigrate based on the marriage.


Your US Citizen or Lawful Permanent Resident spouse must be married to you only. Any previous marriages must have ended with supporting official documents


How And Where You Can Apply For The Green Card


If you are already married and not in removal proceedings, these are the major steps to be followed by you and your citizen spouse:


1.        Your US citizen spouse submits a visa petition on Form I-130 to USCIS along with proof that you are married and proof of his or her status as a citizen.


2.        The next step would be gathering all documents after the USCIS approves the I-130 and transfers your case to the National Visa Center (NVC).


3.        Then, the NVC will transfer your case to a US consulate in your home country. There, you will have to go through a medical exam and later attend an interview at the US Consulate where you will receive your immigrant visa.


4.        This Visa will be presented at the US border upon your arrival in the US. If you are approved for an entry, your passport will be stamped for US residency at which time you will become a Lawful Permanent Resident. If your marriage was less than 2 years old at the time you entered the US, you will notice that your green card has a two-year expiration date, which means it is “conditional”. You will need to take further steps in order to remove conditions prior to the expiration date on your green card. This is accomplished by submitting an I-751 petition to USCIS and providing supporting documents. Sometimes, the USCIS will ask you and your spouse to attend a “fraud interview” if they doubt your marriage is real.


If You are Living in The US and are Married to a US Permanent Resident:

If you are a foreign national and married to a US LPR you are not immediately eligible to obtain Green Card. Nonetheless, your spouse can take steps to start the immigration process for you as soon as possible. Being a spouse of an LPR you are a “preference relative”. Annual limits apply to the number of preference relatives who receive green cards each year, which means there is a “line”. By filing Form I-130 your spouse can put you in that line already, but if your spouse becomes a citizen in the meantime you will automatically be converted to the immigration category called “immediate relative” where there is no line and a visa will be immediately available. However, unless you have a legal status in the US while you are waiting to get a visa, it will not be legal for you to live in the US. If your authorized stay will expire before the marriage-based green card becomes available, one of the most important ways to maintain the necessary legal status in the meantime is to apply to adjust your status to that of a legal permanent resident. (Adjustment applicants are allowed to stay in the United States until USCIS makes a decision on granting a green card.) However, not everyone is eligible to adjust status, and you can apply to adjust your status only at the time the U.S. immigration agencies allow you to.


K-1 Visa


To be eligible for a fiancé visa, you do not have to intend to live permanently in the U.S. after your marriage. It’s up to you whether you want to stay in the U.S. and apply for a green card.


These are the requirements one has to meet in order to be eligible for a fiancé visa: intend to marry a US citizen; have met your intended spouse in person within the last two years (this requirement can be waived based on cultural customs or extreme hardship), and to be able to legally marry.


The requirement that you intent to marry must be proved. The US Government wants more than your assurances. You must have marriage planned in your near future. Your intendent spouse must be a US citizen and not a Permanent Resident. If your fiancé is only a permanent resident, he or she can petition to obtain permanent residency for you only after your marriage has taken place. A fiancé visa is not available to you at this time. The following requirement is that you and your Fiancé must have been together some time in the two years before filing the petition: you and your finance must  have met in person within the wo years preceding the date the initial fiancé visa petition is filed. Fortunately, if you provide documentation of the prevailing customs in your country prohibiting meeting your finance prior to marriage, USCIS may overlook this requirement. There is also an exception for people who cannot travel to be together, for medical reasons. The last element to satisfy is that you must be legally able to marry: this may present an issue if one person is under the age of consent, has been previously married and needs to prove that the marriage was legally ended, or if the fiancés are related by blood.


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Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from the Law Office of Maryana Yavdyk, pllc. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

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