Green Card through Marriage & Adjustment of Status

You can apply for marriage based green card through the adjustment of status process if you are inside the U.S. and entered legally and you are otherwise eligible.  Some individuals are not eligible.  For example, those that entered unlawfully/illegally are ineligible as are those who entered the country as a C1/D Crewman.  There are other circumstances which may bar you from adjustment of status as well - DISCUSS WITH YOUR ATTORNEY.

Immigrant Relative Petition & Adjustment of Status

The first part of the the green card marriage process is for the U.S. citizen spouse to submit an Immigrant Relative Petition on behalf of his/her foreign national spouse.  The petition is used to establish the family relationship between the U.S. citizen spouse and his/her foreign national spouse.

The second part of the green card marriage process is for the foreign spouse to submit an Adjustment of status application.  This application is used to show that the foreign spouse is eligible to adjust his/her status in the U.S.

Affidavit of Support

The Affidavit of Support is a very important part of the marriage green card application and is required to be completed by the U.S. citizen spouse regardless of his/her income.  The idea behind the affidavit of support is that the U.S. government does not want the foreign national to become a "public charge" (receive welfare or government assistance in the U.S.).  If it is determined that the foreign national spouse is likely to become a public charge, then the application will not be approved.  The affidavit of support essentially is a contract between the sponsor and the U.S. government guaranteeing that under certain circumstances the sponsor will pay the foreign individual's living expenses so that the U.S. government does not have to support the foreign individual once he/she becomes a green card holder.

If the U.S. citizen spouse does not meet the guidelines, which is quite common, then either a joint sponsor will be needed or, in some cases, the income and/or assets of the foreign spouse can be taken into account.  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.

How long does the Affidavit of Support bind the person who signs it?

This is a long term commitment by all who sign an Affidavit of Support.  It is legally enforceable by the government for any means-tested public benefits utilized by the sponsored foreign national, meaning that if the foreign national spouse were to go on welfare, the U.S. government could make the individual/s who signed the Affidavit of Support pay the money back.  The obligation to support the foreign national ends when the foreign national becomes a U.S. citizen, has earned 40 work quarters (equivalent to approximately 10 years of working), dies, or permanently leaves the U.S.

Work authorization

When applying for a green card, you are eligible to apply for work authorization.  Work authorization generally arrives within 45-90 days after submitting the application.  If you are in the U.S in another nonimmigrant status, such as the H-1B status, and you have maintained your status, you may not find it necessary to apply for work authorization.  You should discuss this with your attorney.

Advance Parole

Advance parole allows you to travel outside of the U.S. while your 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 application, unless you are in H-1B or L-1 status.  Advance parole generally takes up to 30-60 days to receive.

If you have any unlawful presence issues or you are an overstay, you should NOT use advance parole as you could be subject to a 3 or 10 year bar if you leave the country.  Furthermore, you should be aware that if you do use advance parole to re-enter the U.S. after a trip abroad, you will be treated as an "arriving alien".  This can be problematic if you have any issues with your application.

The safe approach is to not use advance parole, except for in the case of an emergency situation, and even then you must be certain that you do not have any unlawful presence or overstay issues.

Marriage Green Card filing fees

The total filing fees for a green card through marriage application are $1,365.  This is comprised of $355 for the Immigrant Relative Petition and $1,010 for the Adjustment of Status application and Biometrics.  Filing fees for work authorization and advance parole are waived when these two items are applied for as part of the green card through marriage application.

The Marriage Green Card Interview

Many dread the marriage green card interview, whether it's because of rumors heard from others, information obtained online, or just a general fear of dealing with the government face to face.  It is important to work closely with your lawyer prior to the marriage green card interview to make sure you are well-prepared for the interview and that you have gathered all necessary information.

You will be notified about the day, time, and location of the marriage green card interview via a USCIS notice that will arrive in the mail.  On the day of the interview, it is important for you and your spouse to arrive early to the USCIS location (at least 30 minutes early).  Upon arrival, you and your spouse will check in to the specific floor or room stated on your notice.  The interview will be conducted in either a cubicle or closed office.  The examiner will have the application you submitted and all supporting materials, but it is very important that you bring originals of all documents and any additional information that may be needed for your case.  The examiner will review your application and ask you questions, many of which are personal and about your relationship.  You should be well prepared with documents proving your relationship and other items that your attorney will advise you of.   It is very important for you to work closely with your attorney in preparing for the marriage green card interview.

Conditional permanent residency

If you have been married for less than 2 years at the time of the interview, then you will receive a conditional green card, which is valid for only 2 years.  You must apply to remove the conditional nature of your green card within 90 days of the two year expiration date.  In applying to remove the conditional nature of the green card, the validity of your marriage will be re-examined.  It is highly important to discuss your case with your attorney prior to applying to remove the conditional nature of your green card, as certain factors can complicate your case.

Conclusion

It is important that you fully understand your situation and the requirements of your case, as each marriage based green card case is different.  You will have to submit numerous amounts of supporting documents and detailed information about you and your spouse.  The preparation of all applications and documents in an accurate and organized manner is extremely important and can help avoid delays and potential denials.  Furthermore, it is highly important for you to understand what supporting materials are necessary for your case, as the lack of required supporting materials can result in significant delays and/or a denial.