Marriage to a U.S. citizen is one of the most common ways that non-citizens obtain their green cards in the U.S. Naturally, the law the requires that the marriage be a legitimate one based on a bona fide intent of the spouses to start a life together. Marriages entered solely to circumvent the immigration laws are considered fraudulent by the U.S. government and can form the basis for criminal prosecution and deportation. So don’t do it!
With that said, there are two main ways to get a green card through marriage to a U.S. citizen. One method is called adjustment of status. The second method is called consular processing. The main difference between the two is where the green card process takes place.
Both processes require the U.S. citizen to file a form called an I-130, which is a petition asking the U.S. government to recognize that a valid marriage exists between the citizen and non-citizen. Keep in mind that approval of the I-130 does not, by itself, grant the non-citizen any kind of immigration status in the U.S. It just means that the non-citizen can move forward with the rest of the green card application process.
Adjustment of status is the preferred method of applying for a green card when the non-citizen spouse is already in the U.S. at the initiation of the process. As long as the non-citizen entered the U.S. legally and has not committed any disqualifying acts, the I-130 can be filed concurrently along with the green card application itself (Form I-485) and the other required supporting documentation. This is the case even if the non-citizen spouse has overstayed his or her most recent period of authorized stay in the U.S. (ex: the non-citizen was given 6 months to stay in the U.S. as a visitor and stayed longer than that). It should be noted that once the adjustment of status application is filed, the application will normally be deemed abandoned if the applicant leaves the U.S. while the application is pending. However, this situation can be avoided if the non-citizen applies for what is called an “advance parole” document (colloquially referred to as a temporary “travel permit”). A request for advance parole can be filed along with the green card application (notably, those currently in the U.S. on H1B, L, or K3/4 status do not need advance parole to travel after applying for adjustment of status; their adjustment applications will not be deemed abandoned upon departure). It is also common for green card applicants to apply for a temporary work permit at the time they file for their green card. When both a temporary work permit and advance parole are requested at the time of filing the green card application, they will be issued together on a single “combo card” about 90 days after the green card package is filed with the government. The applicant can then use the combo card to work in the U.S. and travel in and out of the country while the green card application is pending. Once the green card is issued, the work permit and travel permit become void, and the non-citizen simply uses the green card for work and travel.
Consular processing is the applicable procedure when the non-citizen spouse is outside the U.S. at the time the green card process is initiated. The term “consular processing” simply refers to the process of applying for a green card through a U.S. embassy or consulate in a foreign country. The process begins with the filing of the I-130 by the U.S. citizen spouse. Once approved, the applicant and his or her spouse must file a number of supporting documents with the National Visa Center (an organ of the U.S. Department of State). In consular processing, the green card application is an online form called the DS-260 which is filed through the Department of State’s website. Unlike the I-130 and I-485 in the adjustment of status of process, the I-130 and DS-260 cannot be filed concurrently. The I-130 must be approved first, then the DS-260 can be filed. The non-citizen spouse will be scheduled for an interview at the local U.S. embassy or consulate. Upon approval of the DS-260, an “immigrant visa” will be placed in the non-citizen’s passport. This immigrant visa allows the non-citizen to travel to the U.S., and upon entry the non-citizen will be accorded status as a lawful permanent resident (i.e. a green card holder). The physical green card itself is mailed to the newly minted permanent resident upon payment of a small fee which is paid after the non-citizen arrives in the U.S.
A few other important points to keep in mind: (1) For couples married less than two years at the time permanent resident status is issued to the non-citizen, he or she will be accorded “conditional” permanent resident status rather than full permanent resident status. Conditional permanent residents have all the same rights and privileges as full permanent residents, except their status is only valid for 2 years (full permanent residents have indefinite permanent resident status and cards that only need to be renewed every 10 years). In the 90 day window preceding expiration of the conditional permanent resident card, the U.S. citizen and non-citizen spouse must file a joint petition to remove the conditions on the non-citizen spouse’s permanent resident status. Upon approval of that petition, the conditional resident status will be converted to full permanent resident status. (2) Criminal history, prior U.S. immigration violations, and a host of other issues can complicate the green card application process. Some situations may necessitate the filing of a waiver. Any complexities in your personal history should be discussed with an experienced immigration attorney prior to applying for your green card.