Get real about US immigration by marrying a US citizen

marriage based US green card

US immigration is a dream for many and there are many ways that they try to achieve it. Marriage is one such way. While the premise seems perfectly simple, the reality is not. Just being the spouse of a US citizen or resident will not make you an easy path to settle in the US.

It’s essential to learn the specifics of marriage-based US citizenship. Guidance of an experienced immigration attorney can help you go through the process pretty smoothly.

The marriage-based green card is a part of USA immigration. To get this green card, you have to go through an application process. The process will be followed to get a lawful permanent residence. It will be based on your marriage to a lawful permanent resident or a US citizen. The permanent residents of the USA have already gone through the process of green cards. US citizens get citizenship following a legal process that follows their birth.

Both these parties can petition US Citizenship and Immigration Services on behalf of their spouses. For this, they need to fill out a USCIS I-130 form. This will be the step to make a petition for immigrant visa classification. Upon getting approval, the immigrant spouse can apply for lawful permanent residency.

If one makes such an application, that applicant may face a delay in its processing. This is because the applicant may get into a waiting list. This is owing to a quota allotted to immigrant visas for spouses of permanent residents of the US.

The annual quotas are not applicable to spouses of US citizens. But that may not relieve them from the processing delay. Such delays could go up to many months.

Once the I-130 gets approved, the immigrant spouse may start with the immigrant visa process overseas. In case the immigrant spouse has already entered the US legally, the applicant can file USCIS form I-485. This is the Application to Adjust Status. In fact, the applicant can simultaneously fill the I-130 and I-485 forms.

Adjusting status is all about the change in the legal position from having a temporary visa to becoming a permanent resident of the US. The adjustment may occur even from a no visa classification too. The disqualification of the applicant may occur on the grounds of –

  • Prior immigration violations
  • Certain criminal convictions
  • Admitted criminal acts (even if they didn’t end in a conviction)
  • The likelihood that the immigrant may become a “public charge” (if they have any health or economic concerns)

This disqualification may happen even to the spouse of a US citizen from a green card. This can happen even if the I-130 is approved.

US Immigration law stipulates requirements that apply to an immigrant wanting to adjust status to a green cardholder. The immigrant must have legally entered the US, having gone through the inspection procedure. This applies to spouses of permanent residents and citizens. If the immigrant violates this stipulation, he/she would have to leave the US. Then they will have to apply for an immigrant visa via their home consulate.

Foreign nationals unlawfully present in the US for over 180 days may be denied permission to return to the US. This denial could be for a period of up to 10 years. The process of the green card is much different for those who entered the US having been granted asylum or taken in as refugees.

Requirements for the process

The spouse of either a US citizen or a lawful permanent resident must show that:

  • He/she has the legal capacity to enter into the marriage. This could involve clearing any pending divorce cases
  • The marriage is bona fide. This means the marriage has not been solemnized solely to gain immigration benefits
  • There are no criminal, economic or health reasons to not let them into the US as a lawful permanent resident

In case the marriage-based green card is allowed prior to the second anniversary of the marriage, a “conditional residence” is issued by USCIS. This means that the couple must file a joint petition seeking removal of the conditions (USCIS Form 1-751) within 90 days of the second anniversary of obtaining the green card. Failure to file the I-751 could result in loss of green card status and deportation.

Special circumstances

An immigrant could have been battered or subjected to other serious abuse by their legal permanent resident spouse or US citizen. If that happens, the immigrant may be eligible for the status of “special immigrant”. Under such circumstances, they can file a petition for themselves as a “special immigrant” (via USCIS Form I-360). If they have conditional status already, they may be eligible to file USCIS Form I-751. This way they can ask for the conditions on their lawful permanent resident status to be removed.

Help from an attorney

An immigration lawyer is the right person to advocate on behalf of individuals and families in such matters. They can take you through the complicated laws, regulations and governmental requirements to get the results needed. The present uncertainty around immigration makes it important to seek a licensed attorney’s advice. Take an attorney’s guidance to secure visa status for a family member or for helping a loved one to steer clear of deportation.

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Anshul Singhal

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