Obtaining a green card through an immediate relative is perhaps the fastest route to US permanent residency. Under US immigration law, an immediate relative is defined as the spouse, child (under the age of 21 years) or parent of a US citizen. The biggest advantage of the immediate relative category is that it does not fall under the preference categories and there is no priority date backlog.
How do you apply for a green card through an immediate relative?
A green card may be obtained through an immediate relative such as a US citizen spouse through one of two processes – I-485 adjustment of status or immigrant visa processing (IVP). I-485 adjustment of status applies if the foreign national is in the United States. Immigrant visa processing applies if the foreign national is in his or her home country.
Applying within the US – adjustment of status
When applying for a green card through an immediate relative within the US, the two main immigration forms are the I-130 and I-485. Additional forms include the G-325A biographical information, I-864 affidavit of support and I-693 medical form. In addition, if work permission and travel permission are required, those forms include the I-765 (work permission) and I-131 (travel permission).
The I-130 form is the petition for a foreign national relative. The US citizen files this form with US Citizenship and Immigration Services (USCIS) to establish the immediate relative relationship to the foreign national relative who wishes to immigrate to the United States. The US citizen must file a separate I-130 form for each eligible relative. For example, if a US citizen wishes to petition for his foreign national spouse and foreign national step-child, a separate I-130 must be filed for both the spouse and step-child.
The I-485 form is used for the adjustment of status paperwork. Adjustment of status is the request by the foreign national to apply for and obtain permanent resident status in the US. The I-485 form calls for information about an individual's lawful status in the US and any prior criminal or immigration problems.
There are many criteria an individual must meet in order to qualify for I-485 adjustment of status. Some of the fundamental requirements include last entering the country through proper inspection, being in lawful status in the US and never working without permission in the US. While most individuals may not adjust status if any of these criteria are not met, the last two are not impediments to an immediate relative wishing to adjust status within the US INA 245(c) bar to adjustment because the person lacks current lawful status or the person worked without authorization does not apply to immediate relatives.
Even an immediate relative, however, is ineligible to adjust status within the US if s/he last entered without inspection. In those cases, the immediate relative must return to the consulate abroad and apply for an I-601 hardship waiver. These matters are commonly seen with Mexican nationals who entered the US without inspection and married a US citizen. These individuals are ineligible to adjust status from within the US and must process for an immigrant visa and I-601 hardship waiver at the US Consulate in Ciudad Juarez.
(1) A foreign national enters the US under valid H-1B status. He works for one year under H-1B status and then leaves his employer. He begins work at a new employer but does not file a new H-1B or any other work authorization paperwork. Two years later he marries a US citizen and wishes to apply for a green card based on that relationship. Is the individual eligible to apply for I-485 adjustment of status?
Yes – Even though the foreign national no longer possesses lawful status and has worked without permission, he is still eligible to adjust status because he is applying as an immediate relative.
(2) A foreign national enters the US without inspection by hiding in the back of someone's truck. The individual stays in the country for two years and marries a US citizen. The individual does not wish to leave the US and wants to apply for a green card through I-485 adjustment of status. Is he eligible?
No – There is no exception to the bar to adjustment of status for someone who entered the US without inspection. if the individual wishes to apply for a green card, he must return to his consulate abroad and apply for an immigrant visa and I-601 hardship waiver.
I-864 Affidavit of Support
The I-864 form relates to the affidavit of support requirement. The purpose of the form is to prove that the foreign national intending to immigrate is provided enough financial support by the US citizen spouse so that s/he does not become a public charge.
The I-864 sponsor must be the US spouse petitioner from the I-130, although a co-sponsor may be used if the US citizen spouse cannot document enough income/assets. In some cases, the foreign national spouse's income may be used if the couple is living together. If you are using the income of persons in your household or dependents to qualify as a sponsor, you must also submit a separate Form I-864A, Contract Between Sponsor and Household Member, for each person whose income you will use.
In order to meet the affidavit of support requirement, the sponsor must demonstrate income that meets at least 125% of the poverty guidelines for the household size. If the sponsor's income is insufficient, as briefly described above, s/he may utilize a household wage earner or co-sponsor. A household wage earner may file an I-864A form while a co-sponsor must file a separate I-864.
I-693 Medical Form
The I-693 medical form is used to determine whether an applicant for adjustment of status is admissible to the United States on medical grounds. The medical examination must be conducted by a civil surgeon who has been designated by Citizenship and Immigration Services (CIS).
The I-765 is the form used to apply for work permission while the green card paperwork is pending. If approved, the foreign national will receive an Employment Authorization Document (EAD). The EAD is generally valid for any position at any employer, including self-employment. In most cases, an EAD is issued within 60-90 days of filing.
I-131 (advance parole)
The I-131 is the form used for travel permission while the green card paperwork is pending. If approved, the foreign national will receive multiple advance parole documents that may be used for entry back into the US.
Two points of caution with advance parole
Unless you are in H-1B or L-1 status, do not travel outside the US after I-485 paperwork has been filed until the I-131 advance parole paperwork is approved. Traveling without an approved advance parole could lead to abandonment of the green card paperwork. If you have any unlawful presence issues or concerns, do not travel outside of the US even if you have an approved advance parole. Individuals who have accrued unlawful presence may trigger a bar to adjustment of status if they travel outside the US while green card paperwork is pending.
What happens after everything is filed?
After all of the paperwork is filed, receipt notices will be generated in 1-3 weeks for the I-130, I-485 and I-765/I-131 if applicable. Soon after the receipt notices are generated, a biometrics appointment notice is forwarded to the foreign national. As part of the adjustment of status process, the foreign national will be required to have fingerprints taken at the local CIS office or Application Support Center. Work permission and/or travel permission usually arrives in about 65-90 days after filing.
The next stage is waiting for the actual adjustment of status interview. The interview is required to confirm that the marriage is real and legitimate, and to ensure that the foreign national does not have any past immigration or criminal problems that prevent green card issuance.
During the interview, the CIS officer usually asks questions about how/when/where the couple met, details of the wedding, and some general questions about living arrangements to ensure that the relationship is real. In some situations, the CIS officer may separate the couple to determine if the answers match-up and are the same. (This may be likely if there is a large age difference between the couple and/or if they are currently living apart.) The CIS officer may also want to see pictures of the couple together, proof of commingling of assets and updated information in support of the I-864 affidavit of support requirement.
If the case is approved, but the marriage is less than two years old at that time, the foreign national will receive conditional permanent residency. The conditional permanent resident card is valid for two years and I-751 paperwork must be filed within 90 days of that expiration to lift the conditional status and obtain permanent residency.
Applying abroad – immigrant visa processing
Pursuing the permanent resident process for a foreign national who is not in the US is a little different. First, the I-130 is filed in the US, or at a consulate abroad where applicable, if the US citizen is also living abroad. Once approved, an immigrant visa fee bill will be generated from the National Visa Center (NVC).
Once paid, correspondence from the NVC will arrive requesting specific information and documentation in order to schedule the immigrant visa appointment at the consulate. Proof of birth, marriage, divorce, as well as a police reports, submission of a medical examination, I-134 affidavit of support and discharge certificate from the military, if applicable, are required. These documents are provided to a consulate officer at an interview where the foreign national is issued an immigrant visa for admission to the United States as a permanent resident.