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Green Cards Through Marriage

There are different procedures for obtaining a green card (legal permanent residence) based on one’s marriage to a U.S. citizen or legal permanent resident, depending on whether the foreign spouse is in the U.S. or abroad.

For couples where one spouse is a U.S. citizen, if the foreign spouse is in the U.S. and entered lawfully, a visa petition will need to be filed with USCIS along with biographic information, other forms including an affidavit of support, and proof of the marriage. In most cases, the foreign spouse can apply for adjustment of status to permanent residence at the same time.  The couple will be called for an interview before USCIS decides whether to approve the case.  For couples who have been married less than two years, the resulting green card will be “conditional,” that is, it will expire after two years and the couple must file to lift or remove the conditions for the spouse beneficiary to obtain permanent residence.

For couples where one spouse is a legal permanent resident but not a citizen, the spouse wishing to obtain a green card must first obtain approval of the visa petition, and will then  need to wait for a visa number to be “available” in order to apply for the green card. He or she may be eligible to adjust status in the U.S. or may have to go through consular processing in their home country. Foreign spouses who have spent time out of status in the U.S. should consult an attorney before deciding whether to consular process, as leaving could trigger a 3 or 10 year bar on re-entering the U.S.  Waivers of the unlawful presence may be available for eligible applicants but require thorough understanding of the required documentation and risks.

Obtaining a green card/ permanent residence through marriage is one of the more common ways to gain legal status, but the marriage must be proven to be bona fide, i.e. made in good faith.  The petition will be thoroughly scrutinized by the U.S. government to ensure that the marriage is not fraudulent.

K-3: Spouse of U.S. Citizen

If you are already married and have petitioned for your spouse using an I-130 immediate relative petition, your spouse may be eligible to enter the U.S. more quickly with a K-3 visa while the I-130 visa is pending. Currently, however, K-3 visa processing time is roughly the same duration as consular processing through an I-130 visa petition.

 

News for same sex couples: The New Jersey Law Journal  has published an article by Laurie Woog focusing on immigration benefits for same sex couples, such as green cards for spouses of U.S. citizens and temporary visas for foreign dependents. To read the article, click here.

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