Who can apply for their spouse to get a green card (legal permanent residency)?
Both U.S. citizens and legal permanent residents can petition for their spouse to stay in the U.S. permanently. However, visas are only immediately available to spouses of U.S. citizens. The spouse of a legal permanent resident must wait until their priority date is current in the Visa Bulletin before they can adjust to a legal permanent resident as well. They also must maintain valid legal status to wait for their priority date to become current from within the U.S. For some couples, it is quicker and a better option to wait for the green card holder spouse to naturalize to a U.S. citizen and then apply for their spouse. You can also upgrade the petition once the spouse naturalizes. If the immigrant spouse is out of status, they must seek an immigrant visa when their priority date is current.
If your spouse must wait outside the U.S. and wait for their priority date to become current, it is possible for the legal permanent resident spouse to wait outside the U.S. with them and they can both immigrate together back to the U.S. when the time is appropriate. It is very important that you use a U.S. based immigration attorney to handle your case while you are outside of the country so that you do not abandon your application or your legal permanent residency with your absence.
What if my spouse did not enter legally?
The spouse of a U.S. citizen does not have to wait for their priority date to become current in the Visa Bulletin. The petition can be filed at any time, and the spouse does not have to be in legal status to apply. However, if the immigrant spouse did not enter the country legally (using a visa), then they must apply through a different process and cannot adjust their status from within the U.S.
If your spouse did not enter the country legally, they are ineligible for adjustment of status. Instead, they must first pursue a Form I-601A Provisional Waiver. This waiver is special in that it is filed from within the U.S. and argues that a severe hardship would be caused if this person were to be deported and the family had to move abroad. The success rates for these waivers if very promising, but it takes a lot of preparation and evidence to prove that your spouse is eligible for the waiver. In the end, it is up to USCIS to determine that the hardship warrants an approved waiver. Once the waiver is approved, that essentially allows the immigrant spouse to leave the U.S. and interview in their home county for an immigrant visa. If approved for the immigrant visa, they automatically become a legal permanent resident upon entry and the green card will come in the mail.
While you wait for a provisional waiver to be approved and navigate the immigrant visa process, there is no work or travel authorization like a typical spouse adjustment of status. Leaving the country before approval will greatly extend the process and a different waiver will be needed at that point to re-enter the U.S.
What if my spouse overstayed their visa?
When an immigrant overstays their visa, but marries a U.S. citizen, their unlawful presence in the U.S. is automatically waived and forgiven. The immigrant can be out of status when they apply to adjust their status within the U.S. so long as they entered legally with a visa and can prove so. The person remains deportable until a valid petition for legal permanent residency is lodged with USCIS so it is imperative that you seek legal representation quickly and file as soon as you are eligible.
There are special considerations for immigrant spouses that held a J-1 status and it is very important that the person is not subject to the two-year home residency requirement or they will not be able to adjust their status. There is a waiver of the requirement that requires very legally specific arguments. Make sure you disclose the details of your J-1 to your immigration attorney before filing to make sure you are eligible.
What if my spouse entered on a tourist visa?
If you enter on a tourist visa and then get married too quickly, there can be a presumption of fraud. Never get married within 30 days of entry or you will not be approved for a green card. It is our general advice that you should wait at least 90 days to avoid any presumptions that you had an intent to get married when you entered the country. If you met the person after you arrived, your case may look much better than if you knew the person when you entered and had a longstanding distance relationship. Always disclose these relationship details with your immigration attorney to develop a strategy for your application if you entered on a tourist visa and married less than 90 days later.
What is the process to apply for your spouse to get a green card?
The first step is to discuss with an immigration attorney your eligibility – including how the immigrant spouse entered the U.S., how you met, when you married, and whether you live together.
There are approximately nine forms that need to be submitted on your behalf for a concurrent filing for adjustment of status. Concurrent means you are filing Form I-130 and Form I-485 at the same time and asking USCIS to approve your spouse for a green card is one big packet. Once USCIS receives the forms, they will do an initial review to make sure everything is filled out correctly and that all the civil documents are in order. You must also submit two passport photos or both you and your spouse and the filing fees for the forms.
Forms and filing fees change periodically. Your application will be returned or denied if it is not filed correctly.
Approximately 3-6 weeks after filing, the applicant (immigrant) must appear at a USCIS office for their biometrics appointment. Every applicant for legal permanent residency must be fingerprinted and those prints are used to required your criminal record to make sure you are not inadmissible.
Approximately 90 days after filing, if filed correctly, the immigrant will receive an EAD/AP combo card. Your EAD is an Employment Authorization Document that allows the person to accept any legal employment in the U.S. and also apply for a social security number. The AP part is a designation for Advance Parole. This means that if you leave the U.S. your application will not be deemed abandoned and you may re-enter and continue the process in the U.S.
The wait time for an interview is dependent on your local USCIS field office and their backlog. You can check their general timeframes online or ask your attorney. The wait varies across the country from 3 to 10 months.
How do you prove a “good faith” marriage?
Your immigration attorney will review your case and determine the best way to prove that you got married in good faith. In other words, you have to prove that you did not get married for immigration benefits alone. Typical evidence includes a joint lease showing that you live together, joint bank accounts, photos from your wedding and family events, and birth certificates of any biological children.
What is a conditional resident and what does that mean for my spouse?
If you have been married for two years or less as of the date of interview, your spouse will become a conditional resident. You and your spouse must jointly file to remove the conditions within a very specific time frame within two years of approval. Failure to remove the conditions on a green card can result in removal proceedings. It is imperative that you comply with all requirements as a conditional resident and timely remove the conditions. If you have divorced when it is time to remove the conditions, there is a special waiver for the spouse to apply for that seeks to again show that the marriage was entered into in good faith and not for immigration benefits.
