Marriage Based Immigrant Visa

Marriage based Green Card

Marriage for love to a US Citizen can lead to obtaining a green card. The rules surrounding marriage and green cards are detailed and complex, and largely depend upon the location of where the marriage took place and the overseas spouse’s current residence and the sponsoring spouse’s Immigration Status.

Marriage Outside of the United States

If the marriage between the foreign resident spouse and the United States citizen took place outside of the United States and the foreign resident spouse does not have legal non-immigrant status to stay in the United States, the applicant will need to apply for an Immigrant Visa. The processing time for an Immigrant Visa varies, depending on the workload of a particular immigration agency/office, as of April 2011, it is 5 to 9 months on average. Upon approval of an Immigrant Visa through Marriage and entry into the US on the Marriage Immigration Visa, a green card will be mailed to the Immigrant. The Immigrant Visa process can be complex and detailed, mistakes can jeopardize the case and/or cost you delays. Careful planning is required when determining the Marriage Green Card Application process.

General Requirements for Marriage based Green Card

  • Valid recognized marriage between foreign spouse and US citizen
  • Marriage in existence – i.e. not legally terminated, though in some cases, parties do not have to live together.
  • Financial Support – The US citizen must provide an affidavit of support, guaranteeing the support for the immigrant spouse for at least 10 years or until the immigrant spouse becomes a US citizen. In guaranteeing this support, the sponsor must meet the annual income requirement of 125% of the current federal poverty guidelines or show that he or she has enough assets to support the immigrant spouse. If the sponsor cannot meet this income requirement, then the sponsor may find other joint sponsors
  • Marriage must not be a sham and just for immigration purposes

General Legal Factors for Determining Legitimate Marriages

In preparing a marriage based green card application, it is essential to submit strong evidence to support the case. The United States Citizenship and Immigration Services (“USCIS”) and overseas Consulates use several factors in determining whether a marriage is legitimate and not just for immigration purposes which are:

  • Whether the couple have known each other for a reasonably long time
  • The frequency of meetings of the couple prior to the marriage
  • Whether the couple has lived together in the past or presently live together
  • Whether the couple married only after one party became the subject of an investigation, removal, or deportation proceedings by the USCIS. An immigration petition may not be approved for the alien who was married after the commencement of removal, exclusion, or deportation proceeding until the alien has resided outside the U.S. for at least two years, unless the alien spouse can prove the marriage was a good faith marriage and not solely for immigration purposes
  • Whether the couple comes from diverse cultural background or speaks a common language.

Foreign Resident Marriage to a Lawful Permanent Resident

A U.S. permanent resident may petition for his alien spouse, however, it is usually a significantly longer process. The alien spouse of a U.S permanent resident is categorized as a beneficiary of Second Preference A under the family based immigration discussed under Family Green Cards.

Each year the Department of Homeland Security (“DHS”) establishes a maximum number of family based green cards, made available for families of Lawful Permanent Residence (“Green card holders). The DHS distinguishes between “Immediate Relatives” and “Preference Relatives”.

Immediate relatives are not subject to a numerical limit, as long as they are eligible, a green card will be granted upon approval of the application. On the other hand, preference relatives are subject to a numerical limit due to the availability of green cards are limited and usually require a wait time between the approval of the applications and the granting of the actual green cards. Consequently, it is advantageous to be categorized as an Immediate Relative to a sponsoring US Citizen.

Two Year Conditional Permanent Residence (“Conditional Green Card”)

After a marriage based marriage card is granted, it is usually conditional for the first two years from the date the conditional residence spouse lawfully admitted to the United States on an immigrant visa or pursuant to adjustment of status. The reason for this two year condition is to ensure that the marriage was not entered solely for the purpose of gaining permanent residence in the US. In fact, Immigration law does presume marriage was entered into for the purpose of immigration. Consequently, the US citizen spouse and conditional resident spouse must prove that they did not enter into marriage solely for immigration purposes. This process is called Removal of the Conditions. Approval of the removal of conditions application leads to a permanent green card. If the Applicant and US Citizen are no longer married, a waiver will likely be required proving that the marriage was bona fide and thus the conditional residence spouse is eligible to become a permanent residence/ green card holder.

Methods for Removing Conditional Residence

The following are methods of removing conditional permanent residence by proving that:

  • You are still married to the same U.S. citizen or lawful permanent resident after two years (your children may be included in your application if they received their conditional resident status at the same time that you did or within 90 days);
  • You are a child and cannot be included in the application of your parents for a valid reason;
  • You are a widow or widower of a marriage that was entered into in good faith;
  • You entered into a marriage in good faith, but the marriage was ended through divorce or annulment;
  • You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S. citizen or lawful permanent resident spouse;
  • The termination of your conditional resident status would cause extreme hardship to you;

Marriage and Green cards is an extremely complex and detailed area of immigration law. If you are considering marriage or are married with a foreign residence, contact Cipolla Law Group for a consultation.