The green card process involving marriage depends on a number of circumstances for both the sponsoring U.S. subject and the intended immigrant. For the purposes of our discussion, let us agree that the U.S. subject will be a U.S. citizen or U.S. lawful permanent resident (LPR), which is also known as a green card holder. According to the green card definition, family members of U.S. subjects can qualify for a green card if they meet certain requirements and follow the application process (for more see What is a Green Card? and What are green card benefits?). However, this green card process will differ depending on the location of the sponsoring U.S. subject, a location of the intended immigrant, and whether the couple is married or they simply intend to get married (they are engaged and/or they are fiancés). There are few additional circumstances one needs to consider, namely previous violations of the U.S. immigration law, before embarking on the green card process.
Green Card Through Marriage Process Steps
In our previous post, we outlined major green card through marriage process steps. From the high-level, it can be summarized as application (by the immigrant), immigrant petition (by the sponsor), wait of the visa number, adjudication, medical examination, green card marriage interview and final decision. Not all of these steps will be executed in the same order; some of these steps may be skipped or avoided all together. The process will be driven by the circumstances we outlined above.
Green Card Through Marriage: All Possible Circumstances
To summarize the different situational permutations, we pulled together a chart that lays out one and one’s partner circumstances, and highlights major process steps.
How to Read the Green Card Process Chart Above?
It all starts with the U.S. subject. The U.S. immigration law only considers green card application that are sponsored by a U.S. citizen or U.S. lawful permanent resident. If there is no sponsor for a green card through marriage, the green card application is automatically thrown out. The U.S. subject, citizen or LPR, is on the left hand side of the chart. There are two “presence” statuses for each part of the marital union: One is present in the United States, or present Overseas.
The intended Immigrant is juxtaposed in the chart above to the U.S. Subject. There are also two “presence” statuses for the Immigrant, which involves being in the U.S. or Overseas. Finally, there is also a marriage status, which defines whether the couple is married or they intend to get married (also known as they are fiancés).
Normally, if there are four options in the table, we would refer to them as quadrants (quad stands for “4”). However, our table has 16 different permutations. Thus we’d like to call them sedecimant (because latin for sixteen is “sedecim” and “-ant” will be the ending describing the block in the table). For simplicity, however, let us called them “blocks.” In order to read the table, one simply has to match ones’ circumstances to the options outlined above. For example, if the U.S. sponsor is U.S. citizen that resides overseas and the intended immigrant also resides overseas and they are engaged to be married, one starts with the U.S. citizen, narrows it down to “overseas” row in the table, then matches immigrant geographical presence to “overseas” as well, and finally the narrow down the marital status to “fiancé”, one arrives to block 8. Makes sense? Below is the summary description of how the green card process for each block works.
The Green Card Process, Part 1: High Level Overview
Block 1: The couple is married; both are in the United States
This is a very frequent scenario and the green card process is relatively straightforward, assuming that the intended immigrant is in the U.S. legally (legal entry and no significant overstays or other violations of the immigration law). The couple prepares and submits one big application often referred to as the adjustment of status packet:
The package is sent at once to the USCIS Chicago office. Within weeks (often just one week), the applicants receive confirmation that the package is received and is under review. After several months, the intended immigrant is invited for biometric appointment (which involves taking fingerprints and a photograph). Several months after, the couple receives an invitation for a green card marriage interview. Please note, the biometric appointment is for intended immigrant only; the interview is for the couple. While a green card interview experience differs from one applicant to another, on a rare occasion, the interview may be skipped (e.g., if the couple had been married for 20+ years - see marriage based green card without interview). Often the green card final decision takes place at the end of the immigration appointment or within a few short weeks thereafter. The green card arrives in the mail to the intended immigrant within a week or two of the final decision. If the marriage is entered recently, the couple will be required to demonstrate bona fide marriage (see what does bona fide mean). Two years after the approval, the couple will need to seek to remove conditions on green card via I-751 (see also I-751 interview).
Please note, the green card process above describes the scenario when the intended immigrant is in the U.S. legally. If one entered the U.S. illegally, or significantly overstayed one’s authorized stay (e.g., overstaying one’s visa by more than 180 days), the couple will need to consult with an immigration attorney, because the intended immigrant does not have the status within the U.S., which he or she will be looking to adjust. There may be green card options for illegal immigrants (see how can illegal immigrant become legal), which the attorney and the couple will explore together. The Obama administration had initiated a series of executive orders allowing for certain exceptions to the green card process for illegal immigrants.
While the green card process may appear straightforward, the supporting documentation, sponsorship forms, biometric forms and other materials will require diligent preparation and gathering. In our experience, it is easy to fill out and submit forms I-485 and I-130. It is with the backup papers where many stumble. We have prepared a detailed Green Card Through Marriage Guide on how to prepare and submit the application for green card through marriage. It contains detailed instructions on how to fill out the forms, what papers to submit as supporting documentation, and outlines several time and money saving shortcuts that guarantee your application success. Most importantly, the guide will let you start and finish the application in hours, whereas if you do the research yourself, you may be looking to spend 100+ hours to fully master the green card process.
Block 2: The couple is engaged; both are in the United States
Well, this one is very simple. There is nothing the couple can do until they get married.
The easy part is that most states do not inquire about one’s immigration status. So the couple can get married through a variety of venues. A popular option is to file an application with a City Hall; depending on the state, the couple can be married within 30 days. Some courts and/or judges also have the power to marry. Some churches or other religious organizations or even non-religious ones have ordained officers with the authority to merry people. Finally, don’t forget Las Vegas: There, you can quite literally get married without exiting your car in a drive-through marriage chapel.
Once the couple is married, the green card process for them is outlined in Block 1.
Block 3: The couple is married; the intended immigrant is in the United States, while the citizen is overseas
We envision this scenario for the green card process occurs when a citizen military officer being stationed overseas or a citizen executive living abroad for an extended business assignment. We believe there is no physical requirement for the U.S. citizen to be within the United States to prepare and submit Form I-130. It is still would be our recommendation to submit all documents as one package, thus you will follow the process outlined in Block 1.
However, it is also possible to submit Form I-130 and Form I-485 in two separate application packages. The green card process may differ depending on the state of residency of the intended immigrant, so one needs to check with the USCIS to which office each application should be filed.
Please keep in mind, the burden of proof regarding authenticity of the marriage will lie with the applicants. If the couple does not (or has never lived together), the applicant needs to be prepared to answer some tough questions about their marriage in the supporting documentation. Furthermore, the USCIS may still require that both people in the marriage be present for the interview. If one fails to show up, the green card application may be considered abandoned. Sometimes, this may be a cause for the removal of the intended immigrant from the United States.
Block 4: The couple is engaged; the intended immigrant is in the United States, while the citizen is overseas
Like with Block 2, there is nothing the couple can do until they get married. The way we envision this, there are two scenarios to mitigate that. One is that the intended immigrant travels overseas and gets married to the U.S. citizen abroad. Or, the U.S. citizen returns to the U.S. (for however short period of time), and the couple gets married in the States. Then, depending on the circumstances, the couple may follow the green card process outlined in Block 1, Block 3 or Block 7 or Block 8.
The Green Card Process, Part 2: The U.S. Citizen Sponsor
Block 5: The couple is married; the intended immigrant is overseas, while the citizen is in the United States
This scenario may occur when the intended immigrant does not have the U.S. visa or is coming from a country, which does not have a U.S. visa waiver program in place. The U.S. citizen and the immigrant get married abroad, and the citizen, subsequently, returns home to pursue his or her career or studies (or whatever else) while the immigrant paperwork is being processed.
This green card process involves the U.S. citizen filing Form I-130, Petition for Alien Relative, with the nearest USCIS office, which involves fees and supporting documentation. The I-130 may take up to 6-9 months to get approved. Once it is approved, the intended immigrant applies for an immigrant visa. He or she submits visa application form, visa fees and supporting documentation to the local consul’s office of the United States. Once the consulate officers review the paperwork, they issue an invitation for an interview. The consul office typically is able to take biometrics during the interview or shortly thereafter. After several weeks or months, the intended immigrant should receive an immigrant visa or green card.
Some people estimate the marriage visa application may take up to a year from the time when Form I-130 is approved until the green card is issued. This green card process is extremely lengthy. Unless the U.S. citizen visits his or her spouse abroad, the couple may spend living apart for almost a year. This is, obviously a significant downside. The upside, though, is that the spouse gets a green card – there are no more applications to file.
Please note, the U.S. citizen spouses are also allowed to follow the fiancé visa protocol; for more information on this green card process, see Block 6 below.
Block 6: The couple is engaged; the intended immigrant is overseas, while the citizen is in the United States
Similar to the scenario in Block 5, the couple makes a decision to get married while both are abroad, but they wait to pull the trigger on the actual marriage until they are both in the United States. The U.S. citizen, subsequently, returns home to pursue his or her career or studies (or whatever else) while the immigrant paperwork is being processed.
There is a non-immigrant visa available for fiancé of a U.S. citizen; however, it is not a green card. This visa is typically known as fiancé visa or K-1 visa (see K1 Fiance Visa). Its sole purpose is to allow the intended immigrant to enter the United States and marry the U.S. citizen within 90 days of arrival.
This green card process begins with the citizen filing a Form I-129, Petition for Alien Fiancé, with a local office of the USCIS. The Form I-129 is accompanied by certain fees and supporting documentation. There are certain thresholds that must be met: The engaged must have met at least once in the last two years; and they both are legally free to enter the marriage. This is what the citizen will have to demonstrate with the Form I-129. Once the form is approved, it is sent to the National Visa Center in Portsmouth, NH. The National Visa Center assigns a case number to the petition and forwards it to the U.S. Embassy or Consulate where the immigrant fiancé lives. The NVC will also inform the citizen that the paperwork is ready for processing in the consulate. The I-129 process may take up to five months to complete, assuming there are no omission with the application.
Once that occurs, the fiancé must follow the procedure to apply for a K-1 visa at the embassy or consulate. This typically involves filling out visa application (Form DS-160), paying visa fees and submitting certain supporting documentation, such as criminal records and medical certifications, evidence of financial means and proof of the relationship with the U.S. citizen. Once the visa application is submitted, the consul reviews the application and sends the intended immigrant invitation for the interview. During the interview, select information is verified and the immigrant biometrics are taken. The decision about the visa is made by the consulate officer typically during the interview or shortly thereafter. After the visa is printed in one’s passport, the immigrant is free to travel to the United States. Depending on the country of the immigrant, getting a K-1 visa may take no longer than 3 months from the time when I-129 is approved.
Once the immigrant is in the U.S. and married to the U.S. citizen, he or she can follow a simple adjustment of status process outlined in Block 1, which would complete this green card process. Please note, that a spouse of the U.S. citizen may follow the same process in applying for a fiancé visa. The U.S. citizen spouse files Form I-129 and the spouse applies to its local embassy to secure the K-1 visa. Once the intended immigrant is in the U.S., he or she still needs to file the adjustment of status package to secure one’s green card.
One obvious benefit of going the K-1 route for married couples is time. Because it takes shorter time to secure a non-immigrant visa than the actual immigration visa or green card, some prefer this route and shorten the time apart by anywhere between 6 and 12 months. The downside of this green card process, unfortunately, may involve higher fees, because one submits visa and other applications several times.
Block 7: The couple is married; both the U.S. citizen and the spouse are overseas
This scenario is very interesting. We assume it occurs when the U.S. citizen lives abroad and gets married there and continues to stay abroad; the couple lives together.
The first question one needs to ask and answer is whether the couple intends to stay abroad for the foreseeable future. If the answer is “yes”, then the most rational course of action should be to not bother with the green card application process. If the foreign spouse is interested in visiting the U.S., along or together with the U.S. citizen spouse, he or she should rely on the visa-waiver program or just secure a tourist (b1/b2) visa. Given the marriage with a U.S. citizen and certain ties to the foreign country, the consuls will probably issue such a visa with their eyes closed.
The reason you want to avoid embarking on the green card application process is because this costly process will be a waste of time, even if you are approved. The reason for it is that in order to keep the lawful permanent resident status, one must make the United States their home. There are many technical qualifications to fit this criteria, but mostly it is about spending between 6 and 12 months out of the year in the United States. If you stay outside for longer, and do not procure a permission from the USCIS before leaving the country, the USCIS may consider your green card abandoned and nullify it. The nullification may not necessarily hurt your chanced getting a new green card, but why pay thousands of dollars in fees and expenses wait for almost a year if you’d have to do it again in the future anyway.
So, assuming that one’s answer to the question is “no” and you are moving to the United States in the future, then the intended immigrant has a few options. The marriage visa path outlined in Block 5 and fiancé visa path outlined in Block 6 may be both available for the couple. One should inquire in the local embassy about the process; some offices process K-1 visas without Form I-129 having to be approved by the USCIS.
Block 8: The couple is engaged; both the U.S. citizen and the fiancé are overseas
The same logic regarding whether to pursue a green card at all as described in Block 7 applies here. If you are planning on moving back to the United States, the fiancé or K-1 visa path is available for the couple, which is described in Block 6 above. And one should inquire in the local U.S. embassy about the process; some offices process K-1 visas without Form I-129 having to be approved by the USCIS.
Block 9: The couple is married; both the LPR and the immigrant are in the United States
Just like U.S. citizens, LPRs can sponsor their immediate relatives for a green card. This green card process is very similar to the one described in Block 1, the green card through marriage to a U.S. citizen. One has to file Form I-130 and Form I-485 and wait for the application to be processed by the USCIS.
A major difference in this green card process involves green card availability. While petition sponsored by the U.S. citizen gets assigned visa number immediately upon approval of the application (there is no annual caps for applications involving U.S. citizen couples), the LPR sponsored applications are subject to an annual cap. And there is a good chance that once the application is approved, the intended immigrant is placed on the wait list. Although these numbers change, some indicate that getting on the wait list increases the green card processing times to between two and five years.
One has to be mindful that one cannot legally “wait” in the U.S. Unless the immigrant has a non-immigrant visa or other status allowing him or her to legally remain in the United States, the intended immigrant has to leave the country. If you choose to wait in the U.S., this may trigger certain overstay penalties and would prevent one from getting a green card without leaving the country. However, such departure would also trigger a ban for entry to the U.S. for as long as 10 years. This situation can be very delicate and one needs to consult an immigration attorney to sort out one’s specific circumstances. For example, an immigration attorney can help justify and file extreme hardship exception with the USCIS which would allow one to remain in the U.S. during the green card wait. The exception is granted to whomever can demonstrate that being apart from the spouse, or outside of the United States, will cause one of the spouses “extreme hardship.”
Block 10: The couple is engaged; both the LPR and the immigrant are in the United States
Since both the LPR and the immigrant are in the United States, they don’t have to worry about the entry visa. However, like the case with a U.S. citizen, one has to get married first, before one can sponsor one’s spouse for a green card. Once the couple of married, the process outlined in Block 9 should be followed.
Block 11: The couple is married; the LPR is overseas and the immigrant is in the United States
This is somewhat rare scenario for a green card process. But nevertheless, the process outlined in Block 9 should be followed. The LPR can submit the application to USCIS from abroad. The burden of proof of the marriage authenticity will lie with the applicants, which may be more of a challenge given the distance. One also has to be mindful of the green card wait and one’s inability to wait in the U.S. If one LPR spouse is not in the U.S., the case for “extreme hardship” may be even harder to make.
The Green Card Process, Part 3:
Block 12: The couple is engaged; the LPR is overseas and the immigrant is in the United States
Like in Block 11, this scenario is quite rare. Nothing happens before the couple is married. After the marriage certificate is received, one can follow the process outlined in Block 11.
Block 13: The couple is married; the LPR is in the United States and the immigrant is overseas
The green card process starts with LPR filing Form I-130 Petition for Alien Relative with the local USCIS office. After the application is approved, the immigrant is put on the waiting list. When the waiting is over, the USCIS National Visa Center assigns a case number to the petition and forwards it to the U.S. Embassy or Consulate where the immigrant lives. The NVC also informs the LPR and the immigrant that the paperwork is ready for processing in the consulate.
Once that occurs, the green card application becomes a relatively standard application for a visa. This typically involves filling out visa application (Form DS-160), paying visa fees and submitting certain supporting documentation, such as criminal records and medical certifications, evidence of financial means and proof of the relationship with the LPR. Once the visa application is submitted, the consul reviews the application and sends the intended immigrant invitation for the interview. During the interview, select information is verified and the immigrant biometrics are taken. The decision about the visa is made by the consulate officer typically during the interview or shortly thereafter.
Block 14: The couple is engaged; the LPR is in the United States and the immigrant is overseas
It should be made clear that LPRs do not have the same privileges as U.S. citizens do when it comes to sponsoring immigrants. Specifically, LPRs cannot sponsor their future spouses for a K-1 fiancé visa. Only U.S. citizens can do that. So in order to commence the green card process, the couple has to get married and then follow the process outlined in Block 13.
Block 15: The couple is married; both the LPR and the immigrant are overseas
See Block 7 for discussion regarding whether one should even start on the green card application path if the couple envisions staying abroad for a foreseeable future. If, however, the couple is making plans to move to the United States, the process to follow is outlined in Block 13. One should contact local embassy or consul office to reconfirm the actual procedure.
Block 16: The couple is engaged; both the LPR and the immigrant are overseas
Nothing happens until the couple is married. Once the marriage certificate is received, the couple can follow the process outlined in Block 13.