Getting a green card through marriage to a U.S. citizen is one of the fastest ways to obtain permanent residence (and citizenship) in the United States. But it can also create significant immigration problems for couples that don’t understand the U.S. immigration system.
Permanent residence is not automatic. There is an application process that must be followed. Although a green card through marriage to a U.S. citizen is one of the quickest ways to immigrate, there are several steps that include application forms, a medical examination, fingerprinting, and various approvals. For certain people, applying for a green card through marriage can create significant, long-term immigration problems.
Apply for a Green Card through Marriage to a U.S. Citizen
The process begins by filing Form I-130, Petition for Alien Relative. By filing the Form I-130 petition, you are establishing a relationship between you and your spouse. At the same time, you are requesting that a visa be reserved for your spouse. When the I-130 petition is approved, the government is acknowledging that there is a valid relationship and that a visa has been reserved.
Because spouses of U.S. citizens are considered immediate relatives, this relationship is given a degree of priority over other relationships. There are no numerical limits on the immediate relatives to obtain a green card. Preference categories, on the other hand, can require several years to obtain a visa number as there are restrictions on the number of people that can obtain a green card through a preference category. Learn more in Overview of the U.S. Immigrant Visa Process.
Spouses that are already in the United States can apply to adjust status to permanent resident (green card holder) at the same time as filing Form I-130. Because a visa can be immediately reserved, most couples file the Form I-130 as part of a larger adjustment of status packet of USCIS forms that will expedite the process. By filing the Form I-485, Application to Adjust Status, and other required forms concurrently with the Form I-130 petition, couples give USCIS everything necessary to process the case and make a decision as soon as possible. The typical adjustment of status packet includes:
- Form I-130, Petition for Alien Relative
- Form I-485, Application to Register Permanent Residence or Adjust Status
- Form G-325A, Biographic Information
- Form I-864, Affidavit of Support
- Form I-693, Report of Medical Examination and Vaccination Record
- Form I-765, Application for Employment Authorization
- Form I-131, Application for Travel Document
A complete adjustment of status packet will also include several supporting documents as required by each USCIS form.
Eligibility for Green Card through Marriage
Basic eligibility for the immigrant visa (also known as the green card) through marriage to a U.S. citizen requires that:
- There’s a legal marriage (from any country); and
- Neither spouse is married to someone else at the same time.
But that’s not all. Eligibility for a green card through marriage hinges on other factors such as the bona fides of the marriage, periods of unlawful presence, other grounds for inadmissibility and even the use of prior non-immigrant visas.
The speedy nature this immigration path also makes it a prone to fraud by certain individuals that fake a marriage in order to gain immigration benefits. Therefore, getting a green card through marriage is closely scrutinized by U.S. Citizenship and Immigration Services (USCIS). And this just makes it more difficult for honest people.
It’s easy to get a marriage certificate. There is also a burden on the couple to prove that the marriage is genuine and there is the intention to stay together. USCIS will scrutinize your case to confirm there is no attempt to evade immigration laws with a fraudulent marriage.
Therefore, it will be necessary to submit evidence that you and your spouse have a genuine, bona fide marriage. To establish the bona fides of your marriage, the following items are examples of acceptable forms of evidence:
- Documents showing co-mingling of financial resources such as joint bank accounts, credit card statements, tax returns, insurance policies, home mortgages or other loans
- Documents showing joint ownership or property such as a home or auto title
- A lease showing joint tenancy of a common residence
- Birth certificate(s) of child(ren) born into the marriage
- Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the marital relationship. (Such persons may be required to testify before an immigration officer as to the information contained in the affidavit.) The original affidavit must be submitted and also contain the following information regarding the person making the affidavit:
- his or her full name and address; and
- date and place of birth; and
- relationship to you or your spouse; and
- details explaining how the person acquired his or her knowledge of your genuine, bona fide marriage.
Each of these documents must include the name of both spouses. It’s highly recommended that you submit as many documents as possible to strengthen your case.
Complications for Undocumented Spouses
Generally a foreign spouse that is already in the U.S. at the time of filing the Form I-130 petition may also file Form I-485, Application to Adjust Status, concurrently (at the same time). The Form I-485 allows the immigrant to adjust status from the non-immigrant status to that of an immigrant visa (green card) without returning to the home country. But this is where additional complications arrive for some applicants.
The foreign spouse’s admission to the United States is a significant factor. He or she will be required to prove that entry to the U.S. was legal.
There is an important distinction between those that initially entered legally and those that never had a lawful admission to the U.S. As long as the foreign spouse entered lawfully, he or she can generally adjust status to a permanent resident.
Entered the U.S. with lawful means that has now expired
People that have legally entered the U.S. were generally inspected by a Customs and Border Protection (CBP) officer at a port of entry such as an airport, seaport or border crossing. The individual would have entered with one of the following:
- A valid non-immigrant visa such tourist visa, student visa or temporary worker visa; or
- A border crossing card; or
- Under the Visa Waiver Program.
If that legal means of entry has now expired, the immigrant is out of status and considered to be undocumented. But it is possible to obtain a green card based on marriage to a U.S. citizen even if the foreign spouse has overstayed the visa. He or she will need to prove the legal entry in the application, by submitting a copy of either a visa stamp or the Form I-94 (Arrival/Departure record).
Entered the U.S. without any visa
A person that has entered the U.S. without inspection is generally considered to be unlawfully in the U.S. and classified as “entered without inspection.” Persons that have entered without inspection typically snuck across the border or entered through a border crossing but avoided inspection (i.e. hiding in a car). Even persons that have been granted Deferrred Action for Childhood Arrivals (DACA) are included in this group.
The situation becomes much more complicated for spouses that entered the U.S. without documents. The undocumented immigrant must return to the home country to apply through the U.S. consulate. Unfortunately, once an undocumented immigrant enters the U.S., stays for more than six months and then leaves, he or she triggers a three- or ten-year bar on reentry. This is a major obstacle and requires that the undocumented immigrant submit a Form I-601A provisional waiver application to USCIS before departing the United States for the consular interview.
It is possible for an undocumented spouse to obtain a green card through marriage to a U.S. citizen. But this is a complex procedure that requires thorough analysis by a legal professional and contingencies if additional complications arise. There are risks involved. A failed provisional waiver could result in the foreign spouse being barred from entry to the U.S. For these reasons, persons in this situation are highly encouraged to consult with an experienced immigration attorney before filing any USCIS forms.
Grounds of Inadmissibility
Everyone who applies to enter the United States is checked for inadmissibility. People with histories of criminal or terrorist activities, drug abuse, infectious medical problems, or certain other characteristics will generally not be allowed to enter the U.S.
The following list summarizes some of the major classes of inadmissibility. In some cases, a waiver can be obtained.
|Classes of Inadmissibility||Waiver Available?|
|People with communicable diseases like tuberculosis|
|People with physical or mental disorders that may cause harm to themselves or others|
|Drug abusers or addicts|
|People without proper vaccinations|
|People with convictions for crimes involving moral turpitude|
|People who have violated immigration laws|
|People with multiple criminal convictions|
|People likely to become dependent on need-based government assistance|
If your situation may include any of the above conditions, please consult with an immigration attorney before attempting to file any USCIS form.
It’s possible that your spouse is already in the United States. For example, your spouse may be in the U.S. with a tourist visa, student visa or temporary worker visa. If your spouse is already in the U.S., it’s very important to understand the concept of “wrongful intent” as it applies to visas.
When U.S. issues a non-immigrant visa (such as a tourist visa, student visa, etc.), it does so with the understanding that the visitor intends to return to the country of origin. However, if a foreign alien uses a non-immigrant visa as a way of gaining U.S. entry with the actual goal of adjusting status, the U.S. government considers this visa fraud. If USCIS believes that the non-immigrant visa was used as a way to reach the United States to adjust status, a green card through marriage will not be approved. The green card will be denied based on the misuse of the non-immigrant visa.
Your fiancé or spouse should not travel to the U.S. on a temporary visa (except for a K-1 visa) with the intention of staying permanently because you will file Form I-130 and I-485. This is considered a misuse of the visa and the green card application will most likely be denied.
With that said, there are legitimate cases where the intent of the non-immigrant visa was to travel for temporary reasons. During the course of travel, life circumstances changed and there was a need to stay.
Fiancés Use a Different Path
This article is written for couples that are already married. Couples that are engaged to be married and plan to marry inside the United States use a different process. Instead, the U.S. citizen obtains a K-1 visa for the fiancé by filing Form I-129F, Petition for Alien Fiancé. Within 90 days of arriving in the United States, the couple must get married and the alien fiancé must adjust status to a permanent resident by filing the adjustment of status packet.
U.S. immigration law does not permit a permanent resident to petition a fiancé. There are two options. If eligible, the permanent resident can apply for U.S. citizenship. Once a U.S. citizen, the petitioner can file Form I-129F and bring his/her fiancé to the United States. Alternatively, the couple can marry outside the United States. Once married, the permanent resident can petition the spouse.
CitizenPath is the online service that makes immigration forms simple. The website provides simple, step-by-step guidance through USCIS applications and petitions. The low-cost service helps to simplify the process by explaining each question and providing alerts if your answer to a question could be a problem. Most people do not need a lawyer to prepare USCIS forms, but many need a little assistance. That’s where CitizenPath can help. CitizenPath provides support for the Petition for Alien Relative (Form I-130), Citizenship Application (Form N-400), Green Card Renewal (Form I-90), and several other popular forms.