Foreign spouses of U.S. citizens are eligible for permanent residence (green card) based on a valid marriage without being subject to a quota category. The only delay they face in obtaining permanent resident status is due to processing times.
By contrast, after-acquired spouses of U.S. permanent residents (i.e. the marriage occurred after one spouse became a permanent resident) are eligible for permanent residence in a quota category where the backlog requires a wait that can be as long as several years. Such marriages do not provide the foreign spouse with the immediate ability to immigrate to the United States as a permanent resident. These rules apply to both opposite-sex and same-sex marriages.
Definition of Marriage
Section three of the Defense of Marriage Act (DOMA), enacted in 1996, defined the term “marriage” to mean a legal union between one man and one woman as husband and wife and the term “spouse” as a person of the opposite sex who is a husband or wife. Under this definition, a marriage between members of the same sex was not recognized by the federal government.
In 2013, the U.S. Supreme Court ruled section three of the DOMA unconstitutional, thereby requiring the federal government not to discriminate against married lesbian and gay couples for the purposes of determining federal benefits. As such, same sex couples may now file for immigration benefits through U.S. Citizenship and Immigration Services (USCIS).
Validity of the Marriage
Under immigration law, certain marriages are not valid. Proxy or contract marriages are not recognized under U.S. immigration law. USCIS will not recognize a marriage that has been entered into “solely” for the purpose of evading immigration laws or to obtain immigration benefits. The assessment of a marriage is based on tradition, morals, and public policy, and requires an in-person ceremony.
The most common legal impediment to a valid marriage is failure to terminate a prior marriage. Without the final and valid termination of a previous marriage, a new marriage is not valid. The divorce must be recognized when the new marriage occurs. Ex-parte and “quickie” divorces are not favored.
Other legal impediments to the validity of a marriage include the failure to meet legal requirements in the place of the celebration of marriage (such as religious or country-specific customs), minimum age of the spouses, marriage between family members, and issues of consent. These marriages are known as “voidable” and “void” marriages. USCIS does not recognize polygamous marriage, which contradicts public health and the morals of the United States, even if the marriage is recognized in the place that the marriage took place. Intra-family marriages may be approved if the marriage is valid in the place that the marriage took place, if the cohabitation of the parties at their place of intended residence is not a crime, and if the marriage is valid in that state.
Bona Fide Marriage
When adjudicating a family-based visa petition based on a marriage, USCIS assesses the evidence to determine if the marriage is real or fraudulent. Although no definite criteria have been established, when USCIS makes its determination, it considers whether the couple:
- Live together;
- Share financial transactions (bank accounts, etc.);
- Share joint responsibilities for contracts (lease, car loan, etc.);
- Hold themselves to the community as a married couple; and
- Share important family and holiday events.
If a beneficiary was previously married to a permanent resident or U.S. citizen, USCIS will also review whether the prior marriage was bona fide. If a marriage (either the previous marriage or the current marriage) is found to be fraudulent, no subsequent immigrant petition will be approved. This includes immigrant petitions based on marriage, as well as family-based and employment-based petitions.
Immigration Process for a Marriage in the United States
If the foreign national spouse is already in the United States, entered the United States legally, and is marrying a U.S. citizen, the spouse may complete the entire immigration process from within the United States. The U.S. citizen sponsoring his/her spouse will need to file with USCIS Form I-130, Petition for Alien Relative, and the required Form G-325A, Biographic Information, for both spouses. The foreign spouse being sponsored would file the forms required for the Adjustment of Status (“green card”) application. Both sets of forms can be filed concurrently for a faster processing time (approximately three to twelve months from the time of filing to the time of the adjustment interview).
The I-130 petition must be accompanied by a photo of each spouse, proof of the sponsoring spouse’s U.S. citizenship (copy of birth certificate or naturalization certificate, and passport biographical page) or permanent resident status, and a copy of the marriage certificate. If either spouse has previously been married, proof of the end of the prior marriage is also required, such as a divorce decree or death certificate, with translations, if applicable. If the sponsoring spouse is a permanent resident, the foreign national spouse will have to wait years until a green card can be issued. The wait time for a green card to be available depends on demand and the country of citizenship of the beneficiary. Given the length of time a spouse must wait to receive a green card, the spouse may not be able to stay in the United States while s/he waits for a green card. Generally speaking, obtaining work authorization or travel permission during this waiting period is not possible. Moreover, if the spouse overstays a temporary visa expiration date by too long, s/he may be unable to get a green card in the U.S. or overseas because of bars to re-entry for people who have been out of status for more than six months. For spouses with previous immigration violations, the situation may change if the sponsoring spouse becomes a U.S. citizen.
Please note that there have been some months when USCIS has made use of “Chart B,” which allows for early filing and early receipt of some benefits that come when a green card application is filed (e.g., travel authorization). The USCIS use of Chart B is fluid and unpredictable.
For cases in which the spouse of a U.S. citizen entered the U.S. unlawfully, and no petition was filed on his/her behalf prior to April 30, 2001, the process will have to be completed in the spouse’s home country through consular processing. However, if the spouse remained in the U.S. unauthorized more than 180 days, s/he will be barred from getting a green card and/or returning to the U.S. for either three or ten years. Cases that fall into this category should be discussed at length with an attorney to determine the best strategy for obtaining a green card.
I-864 Affidavit of Support
U.S. immigration law requires foreign-national applicants for permanent residency to prove that they will not need to use public benefits while they are a permanent resident. The applicant’s green card sponsor offers this proof on Form I-864, Affidavit of Support. I-864 affidavits are required in all family-based immigration cases. Further information can be found in the article I-864: Proving the Ability to Support Sponsored Immigrants.
Immigration Process for a Marriage Outside of the United States
What if a person marries a U.S. citizen or a permanent resident outside the United States and then wants to come to the United States? The foreign-national spouse must wait outside the United States until the two-part petition and interview process is complete, often taking a year or more. In this case, the U.S.-citizen or permanent-resident sponsoring spouse must file an I-130. When the I-130 is approved, the foreign-national spouse can submit an immigrant visa application (DS-260) at a U.S. consulate. If the foreign-national spouse applies for a visitor or student visa to enter the United States during the pendency of the green card process, the U.S. consular officer will most likely deny the visitor or student visa application because of the marriage, as the spouse will be considered an intending immigrant (i.e., someone who plans to live permanently in the United States). Instead, a U.S.-citizen petitioner, but not a permanent-resident petitioner, can apply for a K-3 visa by filing Form I-129F with USCIS to have the spouse come to the U.S. sooner and complete the green card process here. The I-130 must be filed before applying for a K-3 visa, as a copy of the I-130 receipt notice must be filed with Form I-129F. The U.S.-citizen spouse does not have to wait for the I-130 to be approved to file a K-3 visa petition for his/her spouse. The I-129F can also list the foreign-national spouse’s unmarried children under 21 who are eligible for K-4 visas. Note that once the spouse’s I-130 reaches the State Department, an immigrant visa is immediately available and a K-3/K-4 visa is no longer available. In that event, if no I-130 was filed for the child, the child would then be ineligible to immigrate with the spouse. USCIS advises that the U.S. citizen file I-130s on behalf of each dependent child of the foreign-national spouse at the same time as filing the I-130 for the foreign national spouse.
A person who marries a permanent resident outside the United States, on the other hand, must wait outside the United States with his/her children until the whole process is finished and the immigrant visas are issued, which usually takes several years. In this case, the permanent resident can file an I-130 petition for his/her spouse, but the spouse will have to wait until a green card number is available (i.e. the priority date is current) to apply for a green card at the U.S. consulate.
If a person who is married to a U.S. citizen or permanent resident attempts to enter the United States with a visa waiver, or a visitor, student or other non-immigrant visa, and the marriage becomes known to the airport inspector, the person may be immediately removed from the United States and can be barred from future entry for several years.
Fiancé(e) Visa (K-1 Visa)
A U.S. citizen, but not a permanent resident, can apply for a K-1 visa to allow his/her fiancé(e) to come to the United States to marry the citizen. The U.S. citizen must submit an I-129F petition to USCIS with proof that he or she intends to marry the beneficiary within 90 days of the beneficiary entering the United States, that they are able to be married, that the petitioner is a U.S. citizen, and that the couple have met each other in person within the past two years, unless meeting would cause extreme hardship to the U.S. citizen or would violate strict and long-established customs of either person’s culture.
After USCIS approves the I-129F petition, it transfers the case to the National Visa Center (“NVC”), which then forwards the case to the U.S. consulate or embassy where the fiancé(e) will apply for the K-1 visa. The K-1 fiancé(e)’s unmarried children under 21 can be included on the I-129F and be issued K-2 visas. Upon receipt of the approved I-129F, the U.S. consulate or embassy will contact the U.S. citizen and provide him/her with specific instructions to proceed. Typically, once the U.S. consulate or embassy notifies the petitioner that they have received the approved I-129F, the fiancé(e) can electronically submit a DS-160, Nonimmigrant Visa Application.
Although a K-1 visa is technically a non-immigrant visa, many U.S. consulates and embassies handle K-1 visa applications as immigrant visas. This can lead to different procedures for K-1 visa processing depending on the U.S. consulate or embassy. It is best to check the rules for the particular U.S. consulate or embassy where the fiancé(e) will apply for the visa.
After submitting the DS-160, the fiancé(e) should pay the application fee. This fee can be paid by following the instructions for the relative’s home country. Please keep a record of the MRV number issued after the fee is paid.
With the DS-160 application and fee submitted, the U.S. citizen and fiancé(e) will need to gather supporting documents and submit them to the U.S. consulate or embassy. Each U.S. consulate or embassy will have their own document requirements and submission process, so make sure to read the instructions they provided. Usually the following should be included:
Documents from U.S.-citizen petitioner:
- Form I-134, Affidavit of Support, signed by the U.S. citizen, which must show s/he has an annual income of at least 100% of the U.S. poverty guidelines. Form I-134 can be found on the USCIS website. If the U.S. citizen does not meet the income requirements of the U.S. poverty guidelines, a joint sponsor must submit a signed Form I-134.
- A copy of his/her U.S. passport biographic page or naturalization certificate.
- A recent job letter from his/her employer stating length of employment and salary, with copies of recent paystubs.
- A copy of the most recent federal tax return with W-2s. If no taxes were filed by the U.S. citizen in the previous year, an explanation why s/he was not required to file.
Documents from fiancé(e):
- Copy of passport.
- Original birth certificate.
- If previously married, original divorce decree or death certificate of previous spouse.
- Police certificate(s).
- Prison and court records, if applicable.
- Military records, if available.
- Passport-style photograph(s).
- Evidence of relationship with the U.S. citizen.
Documents not in English or in the official language of the country where the U.S. consulate or embassy is located must be accompanied by certified English translations.
A police certificate is required for each applicant aged 16 or older. No certificate is needed to cover U.S. residence. A police certificate must cover the entire period of the applicant’s residence in that area. Some countries do not issue police certificates. To check whether a particular country issues police certificates, visit the Department of State website. The following chart shows when an applicant needs to obtain a police certificate.
|IF the applicant…||AND…||THEN the applicant needs a police certificate from…|
|Has been living in his/her country of nationality at his/her current residence for more than six months||Is 16 years old or older||The police authorities of that locality|
|Lived in a different part of his/her country of nationality for more than six months||Was 16 or older at that time||The police authorities of that locality|
|Lived in a different country for more than 12 months||Was 16 or older at that time||The police authorities of that locality|
|Was arrested for any reason, regardless of how long s/he lived there||Was 16 or older at that time||The police authorities of that locality|
The next step will be to schedule an interview. Some U.S. consulates require that the documents be mailed first and, once they are reviewed, they will contact the fiancé(e) to let him/her know that s/he can schedule an interview. Other consulates will ask the fiancé(e) to schedule the interview and bring the documents. Again, applicants should check with the U.S. consulate or embassy processing the case to determine their specific procedure.
Before the interview date, the fiancé(e) should undergo a medical examination performed by a medical doctor authorized by the U.S. consulate or embassy.
During the interview, the consular officer will review the K-1 visa application. If s/he approves the application, the fiancé(e) will be issued a visa that s/he can then use to enter the United States. Sometimes, the consular officer will request additional documents or more time to review the application. If this occurs, make sure the requested documents are submitted as instructed. During this period of additional administrative processing, the fiancé(e) must wait for a decision.
Once the fiancé(e) receives the K-1 visa, s/he can enter the United States. The fiancé(e) must marry the U.S. citizen within 90 days of entering the United States and can then apply for a green card. A K-1 visa automatically terminates at the end of the ninetieth day from the date of admission. Therefore, if the fiancé(e) and U.S. citizen do not marry within 90 days, the fiancé(e) should depart the United States by the end of the ninetieth day. If the fiancé(e) remains in the U.S. past the 90 days, s/he becomes subject to removal from the United States and may have difficulty applying for future U.S. immigration benefits.
Conditional Residence – Two-Year Green Card
When a foreign national receives a green card based on a marriage and the couple has been married for more than two years when the person becomes a permanent resident, then the new permanent resident will receive a Legal Permanent Resident (“LPR”) card, valid for 10 years.
When a foreign national receives a green card based on a marriage and the couple has been married for less than two years when the person becomes a permanent resident, then the new permanent resident will receive a Conditional Permanent Resident (“CPR”) card, valid for two years. During the 90-day period prior to the expiration date, Form I-751 must be filed, asking USCIS to remove the conditions and grant permanent resident status.
If the I-751 is not filed within the 90-day period prior to the expiration of the two-year CPR card, the foreign national’s permanent resident status will automatically terminate at the end of the second anniversary on which s/he was granted conditional resident status. If this occurs, the foreign national becomes subject to removal. Failure to timely file the I-751 may be excused at the discretion of USCIS if the I-751 is filed with an explanation that demonstrates that the late filing is the result of extraordinary circumstances beyond the foreign national’s control and the length of the delay in filing was reasonable.
The I-751 petition to remove the conditions is signed by both spouses. The conditional-resident spouse can file the I-751 petition without the signature of his/her petitioning spouse under the following circumstances:
- The conditional-resident spouse entered the marriage in good faith and the petitioning spouse has since died.
- The conditional-resident spouse entered the marriage in good faith, but the marriage has since ended in divorce or in an annulment.
- The conditional-resident spouse entered the marriage in good faith, but s/he was battered or subjected to extreme cruelty by the petitioning spouse.
- Termination of legal resident status and removal from the U.S. would result in extreme hardship to the conditional-resident spouse.