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Can a Person Obtain Permanent Residence through Marriage to a U.S. Citizen?

Posted by attorney Danielle Beach

In cases where the U.S. citizen and foreign-born spouse live in the United States, they must file a Form I-130, alien relative petition and Form I-485, green card application, with the appropriate USCIS service center. Such applications must include supporting documentation establishing joint assets and liabilities indicative of a shared life, such as wedding photographs, evidence of joint bank accounts, joint lease agreements or deeds, jointly-filed tax returns, insurance documents, and personal affidavits from family and friends that attest to the legitimacy of the couple's marriage. An affidavit of support from the petitioning spouse is also necessary. The papers filed can include applications for employment authorization and a travel permit known as advance parole. The USCIS issues the employment authorization document (EAD) and advance parole (AP) early in the process. The couple will be scheduled for an interview, which may take place about a year after filing the application, depending upon the USCIS office having jurisdiction over their place of residence. The USCIS will examine the identification documents, and supporting documentary evidence, and interview the couple to establish the legitimacy of the marriage. The couple must establish that the marriage was not entered into for purposes of obtaining an immigration benefit. If the foreign national spouse resides abroad, the U.S. citizen spouse would generally file the Form I-130 with the USCIS office having jurisdiction over their residence. Once approved, the case will move to the National Visa Center (NVC) and, then, to the U.S. Consulate where the foreign national spouse resides. The consulate will require proof of the genuine nature of the marriage, an affidavit of support and background documentation on the applicant / spouse. If the U.S. citizen resides abroad, the documentation is generally processed at the appropriate U.S. consulate. It is necessary to first submit a Form I-130 to the USCIS. After the I-130 is approved by USCIS, the remaining processing and interview takes place at the U.S. consulate abroad. The procedure is similar but the waiting time may be shorter than if the U.S. citizen was living within the U.S.. The major issue that arises in such situations is that the U.S. citizen spouse must establish that s/he will move to the U.S. along with the sponsored spouse, and will be able to meet the income requirements. If the marriage is less than two years in duration when permanent residency is granted, the foreign national spouse will be given a conditional green card for two years. After two years, the couple must submit a joint petition to remove the two-year condition within the 90-day period immediately preceding the green card expiration. If the marriage has been terminated due to death or divorce, or if the immigrant spouse is a victim of spousal abuse, the immigrant spouse may apply to the USCIS for a waiver of the joint petition requirement. The purpose of this procedure is to establish that the couple's marriage was bona fide when they got married.

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