Edited by Jennifer Grady, Esq.
One of the most straight-forward ways for a foreign national to obtain a Green Card (and status as a Legal Permanent Resident) is through a bona fide marriage to a U.S. Citizen. Here's a step-by-step guide to the process.
Step 1: Ensure You Meet the Eligibility Requirements
Before starting the Green Card application process, the foreign spouse (“beneficiary”) should confirm that he or she meets the requirements below:
Marriage to a U.S. Citizen or Permanent Resident: The beneficiary must be legally married to either a U.S. citizen or a Lawful Permanent Resident (Green Card holder). The marriage must be valid and recognized by U.S. law. Note, the process may be significantly longer if the U.S. spouse is a Legal Permanent Resident, depending on the number of visas available in the visa bulletin at the time of filing.
Proof of a Bona Fide Marriage: The marriage must be legitimate. If the U.S. government believes the marriage is a sham (i.e., for the sole purpose of obtaining a Green Card), it could lead to the denial of the application. The parties should provide evidence of their relationship's authenticity, like joint accounts, photos of milestones and travels together, and shared responsibilities.
Penalties for Fraudulent Marriages: In addition to denial of the application, there are potential criminal penalties, including a penalty of five (5) years imprisonment and a $250,000 fine, for any "individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws." For this reason, it is crucial that the parties enter into a marriage in “good faith” only.
Step 2: Prepare the Necessary Forms
The first official step in the Green Card process is submitting the appropriate forms, along with the supporting evidence described in the next section.
1. Form I-130 (Petition for Alien Relative): As the “petitioner,” the U.S. citizen or Green Card holder spouse must file Form I-130, which establishes the family relationship. This form provides proof that the couple is legally married, and that the U.S. citizen or Permanent Resident spouse is a legitimate petitioner. If the spouse is abroad, this form will be filed first by itself and is referred to as the “K-3 visa”.
Form I-485 (Application to Register Permanent Residence or Adjust Status): If the beneficiary (foreign spouse) is present in the U.S. at the time of filing the I-130, and meets the eligibility requirements, he or she can file Form I-485 to adjust his or her status to a Legal Permanent Resident. This is commonly referred to as “adjustment of status,” and both the I-130 and I-485 would be filed with USCIS concurrently (at the same time).
However, if the beneficiary is outside the U.S. after an I-130 is approved, he or she will instead use the consular processing route, which involves submitting a Form DS-260 to the Department of State, paying a visa fee, scheduling an interview, and attending a visa interview at the consulate (usually in the country of residence and/or nationality).
At this time, the beneficiary may request work authorization and freedom to travel abroad without abandoning the application while the case is pending.
Step 3: Gather and Evaluate Supporting Documents
Along with the forms, the parties will need to submit various supporting documents, including proof identify of the parties, official civil documents, declarations, and proof of the valid marriage.
Step 4: Submit the Forms, Evidence, and Filing Fees
An attorney can help you prepare the forms, gather and revise the supporting evidence, and package it together to submit to USCIS or the consulate. The application will be submitted along with the appropriate filing fees. Excellent presentation and quality of the evidence are key to providing an approvable case.
Step 5: Attend a Biometrics Appointment
Once the application is submitted, the petitioner will receive Receipt notice(s) with the case number(s) (if the case was filed with USCIS). If the beneficiary also submitted a request for work authorization and to travel abroad while awaiting a decision on the case, these decisions should arrive within a few months.
Later, the beneficiary will receive a notice for a biometrics appointment. During this appointment, fingerprints, photographs, and signatures will be taken to conduct a background check. Biometrics appointments typically take place at a local U.S. Citizenship and Immigration Services (USCIS) office.
Step 6: Obtain Medical Clearance
Before the interview, the beneficiary will need to attend a medical examination by a doctor who is designated by USCIS as a civil surgeon to perform the immigration medical examination required for most green card applicants. Immigration medical examinations performed outside the United States and its territories must be done by a panel physician. Panel physicians are different from civil surgeons and are appointed by the Department of State.
In addition, the beneficiary must also meet vaccination requirements.
Step 7: Attend an Interview
The next step in the Green Card process is an interview. For many applicants, this is one of the most crucial parts of the process.
If the beneficiary is adjusting status in the U.S., he or she will be required to attend an interview at the local USCIS office. Both the beneficiary and the U.S. spouse will attend this interview. A USCIS officer will ask questions about the relationship to ensure its authenticity and review the answers provided in the application. It is also possible that the officer may separate the parties to compare their responses to interview questions.
If the beneficiary is outside the U.S., he or she will attend an interview at the U.S. consulate or embassy in his or home country or country of residence.
The questions will generally revolve around the parties’ relationship history, daily life together, and other personal details to prove the legitimacy of the marriage.
Step 8: Receive a Green Card Decision
After the interview, the USCIS officer or consular officer will make a decision regarding the Green Card application. The officer will either:
Approve the Green Card: If everything is in order, and the officer believes the legitimacy of the marriage, the Green Card will be approved, and beneficiary will be sent a permanent resident card (Green Card) in the mail.
Request for Additional Evidence (RFE): Sometimes, USCIS may ask for more documents or clarification. If an RFE is issued, it is important to respond promptly with the requested information.
Deny the application: If there is insufficient evidence, or if USCIS determines that the marriage is not legitimate, the application can be denied.
Step 9: Remove Conditions on Green Card (I-751) (If Applicable)
If the marriage is less than two (2) years old when the beneficiary is granted a Green Card, he or she will receive a Conditional Green Card. This conditional status requires that the petitioner and beneficiary file Form I-751 (Petition to Remove Conditions on Residence) within the 90 days before the two-year anniversary of receiving the Green Card.
This is a critical step, as failure to remove the conditions could result in the loss of permanent resident status. It is important to calendar this deadline, and to communicate with your attorney about filing this application on time.
To remove the conditions on a conditional Green Card:
In a year and nine (9) months, the petitioner and beneficiary will file Form I-751, along with supporting documents that prove the ongoing legitimacy of the marriage.
If the petition is approved, the beneficiary will receive a ten (10)-year Green Card, and become lawful permanent resident without conditions.
Step 10: Apply for Naturalization to Become a U.S. Citizen (optional)
After three (3) years of Legal Permanent Resident status, the beneficiary can apply for naturalization based on marriage to a U.S. citizen. Find out more about the naturalization process.
When to Use an Attorney
Obtaining a Green Card through marriage can be a complex but rewarding process. It’s important to be diligent and thorough at each step, ensuring that all forms are filled out accurately and that all supporting documents are submitted on time. Throughout the entire process, the parties will need to prove that their marriage is genuine and not solely for the purpose of obtaining immigration benefits.
In order to avoid a Request for Evidence or denial, the parties will have a higher likelihood of success if a licensed immigration attorney reviews their case, provides helpful feedback, and files the case on their behalf as counsel of record. The attorney can also communicate with USCIS or the consulate on the parties’ behalf, and attend an interview in person or via phone. Having an attorney present is especially important if the beneficiary has any issues in his or her past, such as arrests, convictions, drug use (including marijuana), domestic violence, or membership in certain organizations. Such issues may also require detailed research and explanations that the attorney can prepare.
If you feel uncertain about any step, it may be helpful to consult with an immigration attorney to guide you through the process and help you avoid potential pitfalls. With patience and the right preparation, you can successfully navigate the process and achieve permanent residency in the United States.
To find out how we can help you achieve your American Dream of Legal Permanent Residency, and eventually U.S. citizenship, schedule a complimentary consultation with The Grady Firm’s attorneys by booking a call online, or calling +1 (949) 940-6725.
The Grady Firm has offices in Southern California, and its attorneys work remotely with clients from around the globe.
*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular case, as each case has its own set of circumstances and must be evaluated individually by and attorney and adjudicated by USCIS or the relevant consulate.
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