Who Can Apply For A Marriage-Based Green Card?

The topic of marriage-based green card always needs further clarification. When it comes to matters concerning immigration, especially where marriage is involved, it is always good to understand the ins and outs of this topic to avoid delays or denials when filing your application.

Assuming you are a non-U.S. citizen who is married to a U.S. citizen or green card holder, here is everything you need to know prior to applying for a marriage-based green card. This article is also helpful if you are the sponsoring spouse of a non-U.S. citizen seeking a green card.

Marriage Based Green Card Eligibility Requirements

Generally, any non-U.S. citizen who is married to a U.S. citizen or green card holder may file for a marriage-based green card. However, even though most marriage-based green card applications are usually approved, the decision solely belongs to the United States Citizenship and Immigration Services (USCIS). There are certain eligibility requirements that must be met prior to approving the marriage-based green card. Below are the most common requirements that apply to both spouses.

Validity Of The Marriage

This is usually the most common and important eligibility requirement that must be met for anyone seeking a green card through marriage. The marriage must be legally recognized in the country where it happened. To prove this, the USCIS requires the applicant to provide a legal marriage certification. If any of the spouses was previously married, there must be evidence of the termination of the previous marriage. This evidence may be in form of a divorce certification, annulment, or legal termination of marriage through death.

Foreign Divorce Certificate Requirements

If previously married, either spouse must be legally divorced prior to starting the application process for the green card. The USCIS will not accept applications for a green card without a valid certificate of divorce if one or both of the spouses were previously married.

However, the validity of a foreign divorce depends on the interpretation of the divorce laws in the foreign country that certified the divorce, and the reciprocity laws in the U.S. where the foreigner remarried. Therefore, if the divorce is not final under the laws of the country where the divorce was granted, it will be considered invalid in the United States in matters concerning immigration.

Intention Of The Marriage

In most cases, the marriage certificate aside, the USCIS requires additional proof that the marriage was based on good faith. The marriage green card application will be denied if the USCIS establishes that the couple entered the marriage for the purposes of attaining a marriage-based green card. This is usually considered marriage fraud and is subject to criminal prosecution.

Type Of Marriage

The type of marriage could also determine if an applicant is eligible to apply for a green card. Here’s what you need to know.

Same-sex marriages

It is worth noting that the United States government also recognizes same-sex marriages. If you have a same-sex spouse who is also a US citizen or green card holder, you are eligible to apply for a green card if you are not a U.S. citizen. This immigration law has been in effect since 2013.

Transgender marriages

Marriage between transgender individuals is also recognized by the United States Citizenship and Immigration Services (USCIS). However, for this type of marriage to be considered legal, the state or local jurisdiction in which the marriage happened must recognize the marriage as valid.

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Relationships That Do Not Qualify As Marriages Under U.S. Immigration Law

However, it is also important to keep in mind that there are certain types of relationships that are not recognized as marriages by the USCIS. Here are some notable few:

Domestic Partnerships

Domestic partnerships are not recognized as marriage by the federal government. If you are in this type of partnership, you do not qualify for a green card until you are married officially.

Civil Unions

The same case applies to civil unions. Even though a civil union may provide legal protections to a couple, this only happens at the state level.

Polygamy

Similarly, the United States government does not recognize polygamy. This federal rule stands even if polygamy is allowed in the country of the spouse of a U.S. citizen or green cardholder. This also applies to a U.S. citizen or permanent resident; if they are married to anyone else, they cannot sponsor a non-US citizen for a marriage-based green card since it is considered polygamy under U.S. law.

Absentee Marriages

If one party is not present during the wedding ceremony, the USCIS may not recognize the marriage as legal. However, the marriage may be considered legal if it has been consummated.

Other than meeting the above-mentioned requirements, there are some additional requirements that must be met by both the U.S. citizen or green card holder, and the person being sponsored for the marriage green card. Let’s take a look at these requirements for both individuals.

Marriage Green Card Requirements For The Sponsor

The sponsor, also known as the petitioner, must meet the following requirements prior to submitting the green card application for the foreign individual.

File Affidavit of Support

The sponsor must file an affidavit of support, a legally binding form that states that the sponsor will be financially responsible for the foreign national if granted a green card through marriage. This form is also known as form I-864.

Provide Proof Of Financial Stability

Other than just signing Form I-864, the sponsoring spouse must also provide proof that they are financially capable to sponsor the foreign national applying for a green card. This proof may be in form of tax returns, pay stubs, and any other relevant financial documents. If they do not meet this requirement, the sponsoring spouse could have a friend or relative sign for them as a joint sponsor.

The Sponsoring Spouse Must Live In the United States

The sponsoring spouse must be actively residing in the United States. If not residing in the U.S. at the time of filing Form I-130 (Petition For Alien Relative), the petitioner must prove their intention to return to the U.S. This evidence may be in form of U.S. job offers, businesses, leases, etc.

Marriage Green Card Requirements For The Beneficiary

The beneficiary, in this context, is the person who is married to a U.S. citizen and is eligible to obtain a green card. Their eligibility to become a permanent resident of the United States could be affected by the following factors:

Failed Medical Examination

Prior to becoming a lawful permanent resident of the U.S., the beneficiary is required to pass a medical examination conducted by a USCIS approved doctor. If it is established that the beneficiary has certain communicable diseases, mental illnesses or have not received the required vaccinations, they may be denied a green card.

Immigration Offenses

Certain immigration offenses can also lead to the denial of a green card. The most common ones include:

  • Lying to the USCIS or Customs and Border Protection (CBP)
  • Falsely claiming to be a citizen of the United States
  • Failing to attend a removal hearing

If the beneficiary entered into the United States without a valid visa and did not go through inspection at the port of entry, they cannot be granted a green card through adjustments of status. They will be required to leave the country and apply from outside the United States.

However, if the beneficiary overstayed their visa, and married a U.S citizen, they can still get a green card by applying for adjustment of status. If married to a permanent resident but overstayed their visa, they will have to leave the country and apply for a green card from outside the United States.

Lastly, if the beneficiary arrives in the United States on a temporary visa and files for a green card within 90 days of their arrival, the U.S. government may deny their application. This denial is based on the assumption that the foreign national left their home country for the sole purpose of obtaining a green card in the United States, and not to be in the country temporarily as stipulated in their visa application.

Common Reasons For Denial Of A Marriage Green Card

Even if the sponsoring spouse meets the aforementioned requirements, the green card application may be denied for the following reasons:

Recent Remarrying

If the petitioner is a lawfully permanent resident of the United States, who gained their permanent residence through marriage, they cannot sponsor an applicant for a green card until five years from the day the sponsor obtained permanent resident status.

Offenses Against Minors

The sponsoring spouse cannot sponsor a foreign national if the sponsor has ever been convicted of certain offenses against minors. This may include but not limited to child pornography, soliciting a minor to engage in sexual conduct or any other conduct that is considered an offense against a minor.

Risk To Sponsored Spouse

If the USCIS determines that the sponsoring spouse poses a threat to the beneficiary of the green card, the petition may be denied. The threat may be in form of domestic violence, abuse, and so on.

The Green Card Application Packet

This is basically a collection of processes, including forms, that need to be filed throughout the application process for a marriage-based green card. Typically, the petitioner may need to file the following forms:

Form I-130, Petition For An Alien Relative

The sponsoring spouse will file form I-130 to formally notify the USCIS about their marriage to a non-U.S. citizen, and their intention to sponsor them for a green card.

Form I-864, Affidavit Of Support

The petitioner signs affidavit of support form to prove their financial capability to support their spouse, who is not a United States Citizen.

On the other hand, the beneficiary is also required to file certain forms to expedite the application to become a lawful permanent resident of the U.S. They include:

Form I-130A, Supplemental Information For Spouse Beneficiary

This form provides further information about the beneficiary of the green card. Typically, it is filed along with Form I-130.

Form I-485, Application To Register Permanent Residence Or Adjust Status

If the green card applicant already resides in the United States, this is the form they need to file to adjust status to become a permanent resident.

Form I-765, Application For Employment Authorization

While waiting for a response about their application to become permanent residents of the U.S., applicants may file this form to be allowed to legally work in the country.

Form I-131, Application For Travel Document

This form is for US-based applicants who wish to become permanent residents after being legally married to a U.S. citizen but are also planning to travel outside of the country while their application is pending. It grants them permission to travel outside the country without being considered to have abandoned their application.

DS-260, Application For An Immigrant Visa

This form is reserved for applicants based outside the United States. It is usually submitted to the National Visa Center, along with other supporting documents.

Read more: Supporting Documents for a U.S. Marriage Green Card

Frequently Asked Questions About Marriage-based Green Cards

Now that you know the basics of this type of green card, let’s take a look at some of the most common questions asked about it.

How Long Does It Take To Get Green Card Based On Marriage?

This process could take anywhere between 10 to 13 months. However, to find out the exact processing time for your application to become a lawful permanent resident, you may use the Processing Times tool available on the website of the U.S. Citizenship and Immigration Services.

Read more: Marriage Green Card Application Timeline Explained

What Questions Are Asked In A Marriage Interview For Green Card?

The exact questions vary depending on the nature of your application. Generally, they will focus on your history as a couple, your first date, the marriage proposal, where you first met, and so on. As long as your relationship is genuine, you wouldn’t have any problems answering most of these questions.

How Can I Pass My Green Card Interview?

There is no specific formula for passing a green card interview other than telling the truth, reviewing your application prior to the interview, and presenting as much evidence as you can. For example, if you were married before, make sure you have a copy of your divorce certificate.

What Happens If You Don’t Pass The Interview?

If you don’t pass the interview, chances are the USCIS will give you the chance to provide additional information. This may be in form of a marriage certificate, divorce certificate, or other supporting documents.

To avoid failing the interview during their first attempt, most people consult an immigration attorney from a reputable law firm for further guidance. This lawyer is usually conversant with the ins and outs of U.S. immigration services and the associated laws. An immigration attorney can also help review the paperwork from both the sponsor and beneficiary prior to filing in order to avoid unnecessary delays or denials.

Read more: Questions To Expect In A Green Card Application

After How Long Can I Become A U.S. Citizen After Getting A Green Card (Marriage Based)?

The journey to citizenship through this type of green card starts when your U.S. citizen spouse files form I-130. You will then prepare Form I-485 (application for adjustment of status). If you and your spouse already live in the United States, you may file these forms together at the same time, in what is commonly known as concurrent filing.

Approximately seven months later, you and your spouse will be invited for an interview with the USCIS. If you pass the interview, you will be granted a two-year conditional resident status. Exactly 90 days before the end of the two-year conditional period, you and your spouse will file Form I-751, which petitions the U.S. government to lift the conditions on your green card and approve your permanent residence. Several months later, this request may be approved.

If you stay married to your U.S. spouse for at least three years from the date you were approved for a conditional residence, you may file for U.S. citizenship. This is done by filing Form N-400 Application for Naturalization.

It is worth noting that there is no guaranteed or specific processing time for such applications. Factors such as the Covid 19 pandemic, for example, have influenced the processing times for many immigration petitions. This is especially evident in green card applications that require one-on-one interviews with USCIS officials. As a result of the pandemic, some USCIS offices have been closed temporarily while others are understaffed, consequently increasing the processing times.

The best thing to do, whenever you wish to find out the estimated processing time for your specific case, is to use the Processing Times tool available on the USCIS website. This tool gives you a rough estimate of when you should expect to hear from USCIS, and what to do if you do not get a response after the provided timeframe. All you need to do is to provide the number of the form you filed, the name of the processing center, and then click on the Get Processing Time button.

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