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Family-based Green Cards (Part 5): Marriage Eligibility

Posted by Ann Badmus | Oct 19, 2012 | 0 Comments

Please note that this “express lane” to obtaining a green card is only available for foreign nationals who marry for love (or at least, not solely for immigration purposes). If USCIS determines that the marriage is a sham, then it will not issue a green card. Perhaps, more importantly, the Yiddish proverb that states, “She who marries for money earns every penny” is equally applicable to those who marry for a green card. In determining whether the marriage is “legitimate,” the USCIS will look for proof such as:

  • Leases showing that the spouses lived in the same place;
  • Documents showing that the spouses owned property together; and
  • Birth certificates of children.

The process for obtaining a green card by marriage is straightforward. Shortly after the marriage takes place, the U.S. citizen spouse should submit the Petition for Alien Relative, Form I-130, on behalf of his foreign national spouse.

If the foreign national spouse already resides in the U.S. under a temporary visa (even if expired), she should immediately file an Application for Adjustment of Status, Form I-485. On the other hand, if the foreign national spouse is not in the U.S. at the time of the marriage, then the green card process must be initiated from abroad after the Form I-130 approval. This process will usually take anywhere from six months to two years.

However, in the interim, the foreign national spouse may file for a temporary K-3 visa, which will allow her to reside in the U.S. while the green card request is being processed. Also, there is a K-4 visa for her unmarried children under the age of 21.

To apply for K-3 and K-4 visas, the petitioning U.S. citizen spouse must file a Petition for Alien Fiancé(e), Form I-129F, after receiving confirmation of the Form I- 130 filing with the USCIS. Once approved, the petition will be forwarded to the applicable consulate so that the spouse (and children) may apply for K-3/K-4 visas. In general, this process will take three to six months.

Once the green card application has been approved, the foreign national spouse will receive permanent residence. However, if the marriage is less than two years old at the time the green card application is approved, the foreign national spouse will receive conditional permanent residence valid for a period of two years. During the 90 days before the end of the two-year period, both spouses must file a joint resolution, Form I-751, to make the green card permanent. If the marriage does not survive this two year period, the foreign national may still apply alone if she has divorced, her spouse has died, her removal from the U.S. would cause her extreme hardship, or she has been battered or subjected to extreme mental cruelty at the hands of her citizen spouse, or removal from the U.S. would.

About the Author

Ann Badmus

Principal and Managing Attorney


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