Wedding Dress: Check. Wedding Reception: Check. Honeymoon: Check. Now, what?
Congratulations on your marriage! This is an exciting time of merging two lives into one. If you are a foreign national and your spouse is a United States citizen, you may be eligible to apply for legal permanent residency (also known as a Green Card). A U.S. citizen's spouse is considered an "immediate relative," which is a special class or category according to the United States Citizenship and Immigration Services (USCIS).
As an immediate relative, you are eligible to apply for a green card right away, whether you are in the United States or abroad. If you are currently residing in the United States, you will go through a process known as “adjustment of status” in which your U.S. citizen spouse petitions for you on form I-130, and you apply for adjustment of status via form I-485. The forms are filed simultaneously with supporting forms and documents.
If the foreign national spouse lives abroad, your application will be assessed via “consular processing.” The U.S. spouse has to submit the I-130 form first. USCIS will evaluate the sponsorship application and ask for more documents, if needed. If the I-130 is approved, the case will be sent to the nearest U.S. embassy abroad which will send further instructions on forms, documents, and medical exams that are needed. After all paperwork is completed, the foreign national will have to attend a visa interview at the U.S. embassy for questioning and additional document review.
USCIS has an interest in allowing families to be united and start their lives together. However, there can be potential bumps on the road. For example, if the foreign national spouse entered the United States without inspection, he or she is not eligible to adjust status – at least, not without further steps. In these cases, it is highly advised to work with an experienced attorney to follow the proper steps to address issues that the USCIS considers as red flags. Another example is if the foreign national spouse has a criminal record, USCIS really scrutinizes criminal records. The good news is that there are certain things USCIS forgives for immediate relatives. One of the best examples is that unlawful presence or unlawful status and/or working without authorization are not bars to adjusting status via marriage.
Overall, if the foreign national spouse is in the United States, the green card application process via marriage on average can take between six to twelve months. It depends on the application details and the local USCIS office processing times. If you have to attend a visa interview abroad at a U.S. embassy, the processing time can be substantially longer because of the embassy's workload and additional background checks that are needed. On average, if applying abroad, the process can take one and half or two years.
The most interesting part of my job as an attorney is that no two marriage cases are the same. In other words, this can be a very detailed process depending on the couple’s immigration history, criminal record, and other documentation. Applying for adjustment of status via marriage involves substantial amount of supporting documents. USCIS is particular about how evidence is presented. USCIS has been known to reject applications as being “incomplete” for minor errors. Therefore, to ensure that the application is accepted on the first attempt (and to avoid paying duplicate filing fees), it is highly recommended to work with an immigration attorney that can guide you and your spouse on the process and what evidence to submit.
At ImmigraTrust Law, we have helped many couples go through this process successfully. We are proud to advocate for our clients and their families. We would love to help you and your spouse apply for a green card.
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--Najmeh Mahmoudjafari, J.D.
Najmeh is the Founder and Lead Immigration Attorney at ImmigraTrust Law (www.ImmigraTrust.com), an immigration law practice in Orange County, California, representing individual and corporate clients in all 50 U.S. States and internationally. Najmeh can be reached at Najmeh@ImmigraTrust.com.
DISCLAIMER: This article is for general information purposes only. It is not intended and does not constitute legal advice. This article does not create an attorney/client relationship and does not provide an attorney/client privilege. For legal advice about your specific case, please contact an attorney.
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