Congratulations! If you are reading this you and your US citizen fiancé are either planning on getting married or you are already married—the great news is that as an immediate relative/spouse of a US citizen, you have the right to apply for a Green Card so you can permanently reside here in the US with your spouse.

The journey towards permanent residency and US citizenship can be an anxiety-ridden process if you don’t know what to expect. In this article, we will unpack for you, all the steps involved. 

HOW DO WE BEGIN THE PROCESS OF FILING A MARRIAGE GREEN CARD?

Whether you are in the US or abroad, as the spouse of a Green Card holder/US citizen, the whole process begins with the filing of USCIS Petitions IN THE UNITED STATES. This is true whether the marriage occurs abroad or in the United States. The first step must be the filing of the Petition for Alien Relative (Form I-130) IN THE UNITED STATES along with proof of the relationship such as photographs, communications, including text messages between the couple, social media evidence if applicable, and evidence of joint responsibilities and liabilities, if any. The fundamental difference is the following:

• If the foreign national spouse is in the US (and entered with a valid visa), the following documents must be filed for Adjustment of Status: Forms I-130; I-130A; I-485; I-131; I-765; I-864; and I-944.

• If the Foreign National spouse is abroad, the following documents must be filed: Forms I-130; and I-130A.

Common related questions: 

• Does it matter where I marry my wife?

• Does it make a difference if we get married in the United States or abroad?

• Will my marriage still be valid for immigration purposes if we get married abroad?

It does not matter if you get married in the United States or abroad. The important thing to keep in mind is the marriage must be legal in the actual jurisdiction it occurs in. For example, if a country abroad does not recognize a religious marriage as legally valid without a formal registration of marriage, then USCIS will also not recognize the religious marriage as a legal one, as the couple failed to register the marriage.

One of the important things to keep in mind, however, is that, if you get married abroad, it is not as easy for the foreign national spouse to visit the United States on a visa, and here is why: Once the immigration papers are filed with the USCIS, the foreign national spouse’s intent has been communicated to USCIS. You’ve basically stated that you are applying for an immigrant visa. When you attempt to travel to the US with a B2 visitor visa, the CBP will likely question you on why you are entering as a non-immigrant and whether you have any intention of defrauding the government by staying in the US and continuing your immigrant visa processing while living in the US. The best way to avoid any problems is to travel with evidence that you will be returning to your home country such as evidence of your job that you have to return to or evidence of financial obligations abroad (lease; mortgage, etc.). With this evidence and more, you can convince the CBP officer that you are only visiting temporarily. 

After applying for our marriage Green Card case, can I mail USCIS more evidence?

The couple has what we call “two bites at the apple” (two opportunities) to prove that the marriage is a real one. The first opportunity to provide proof that your marriage is a real marriage is when you first file Form I-130 (first bite). USCIS will then process the case and the couple will have the whole period of time between the filing of the case and the Green Card interview (whether in the US or abroad) to continue to collect documentation that they can submit at the interview (second bite). 

There are also some additional conditions that we need to keep in mind when you are filing an Adjustment of Status if you are marrying a Green Card holder, not a US citizen:

• The beneficiary’s visa (foreign national) must be valid at the time the Form I-130 is filed with USCIS—it is imperative that the beneficiary is not out of status at the time of filing. This means that, as seen on your Form I-94, you should not have overstayed the allowed period in the US.

• There are restrictions on the number of visas issued to spouses of legal permanent US residents—this is called the “F2” category on the visa bulletin, therefore, you must make sure there are visas (Green Cards) available at the time of filing.

• You should never have worked illegally in the US. If you have, you will be denied a Green Card as you won’t be deemed admissible.

Consular Processing

If you live outside the US or do not fulfill the criteria for status change, you should apply to the US Consular Office abroad for an immigrant visa. One thing you must also keep in mind is that if you have resided in the US and fell out of status, going abroad could trigger the travel ban that could leave you stuck outside the US for up to 10 years. 

Applying for a Green Card based on Marriage Abroad

The procedure of applying at a US Consulate or Embassy abroad for an immigrant visa is known as consular processing or visa processing. As mentioned above, the process begins by filing Form I-130 and Form I-130A. Once that is approved and you have passed through document clearance at the National Visa Center, you will also submit Form DS-260 to apply for an immigrant visa. The DS-260 is submitted online (also known as the "Immigrant Visa Electronic Application”). You will also have to be medically examined by a qualified doctor and submit a Police Clearance Certificate from each country you have lived in for more than six months after you turned 18. Eventually, you will attend an interview at a US Consulate or Embassy. During this interview, the immigration official will review documents and evidence related to your marriage and your medical examination and will ask questions regarding your marriage.

On successful completion of the consular interview, an immigrant visa will be attached to your passport within a week to two weeks. The immigrant visa can be used to enter the US and will be valid for six months.

Conditional Permanent Resident vs. Unconditional Permanent Resident

If you become a permanent resident within the first two years of marrying (your spouse must be a US citizen or permanent resident), you will be considered a "conditional" permanent resident for two years. This is the government’s way of saying, “You have only been married for less than two years, so we believe that you are really married, but come back in two years to renew your card and we will check again that you got married for non-immigration purposes.”

If at the time you become a permanent resident, you have already been married for two years or longer; then you become an "unconditional" permanent resident directly. You will then have rights and privileges similar to other permanent residents. 

Converting your Conditional Status to Unconditional Status

You will have to file a joint petition at the end of the two-year duration of conditional permanent residency to remove the conditions from your permanent resident status by filing Form I-751 within 90 days of the expiration of the two-year Green Card. The card, of course, must be filed with evidence of the continued marriage.

Should you have any questions please do not hesitate to contact us for more information. We understand that these are difficult times but we are available to take your call so we can discuss the best options for you! Contact us to discuss your marriage based Green Card case today! You can call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for a immigration consultation.