A marriage green card is permanent residence obtained through a spouse who is a U.S. citizen or lawful permanent resident. The U.S. spouse files Form I-130 to prove the marriage is real, and the foreign spouse then either adjusts status inside the United States on Form I-485 or completes an immigrant visa interview at a U.S. consulate abroad. Which route applies, how long it takes, and whether a waiver is needed depend on the U.S. spouse’s status, how the foreign spouse entered the country, and his or her immigration history.
The Law Offices of Brian D. Lerner prepares marriage-based cases from its office at 3233 E. Broadway in Long Beach for couples throughout Southern California and nationwide. Brian D. Lerner has practiced immigration law for more than 30 years and is a Certified Specialist in Immigration and Nationality Law, certified by the State Bar of California Board of Legal Specialization. He is licensed in California, Texas and Michigan.
Spouse of a U.S. citizen or spouse of a permanent resident
The spouse of a U.S. citizen is an immediate relative. There is no annual quota and no waiting line, so the green card case can move forward as soon as the I-130 is filed. If the foreign spouse was inspected and admitted or paroled into the United States, the I-130 and I-485 can usually be filed together, and an overstay or work without authorization generally does not prevent adjustment for an immediate relative.
The spouse of a lawful permanent resident falls in the F2A preference category. The case cannot be completed until the priority date is current on the State Department’s Visa Bulletin, and the foreign spouse generally must maintain lawful status in the meantime to adjust inside the United States. If the permanent resident naturalizes while the case is pending, the petition converts to the immediate relative category.
Adjustment of status or consular processing
Adjustment of status lets the foreign spouse stay in the United States, apply for a work permit and advance parole while the case is pending, and attend the green card interview at a local USCIS field office. Consular processing is used when the foreign spouse is abroad, or when he or she is in the United States but cannot adjust, most often because of an entry without inspection. In that situation the case usually requires an I-601A provisional unlawful presence waiver before the spouse leaves for the consular interview, based on extreme hardship to the U.S. citizen or permanent resident spouse or parent. Some people who entered without inspection can still adjust under INA § 245(i) if a qualifying petition or labor certification was filed on their behalf by April 30, 2001.
Proving the marriage is real
The central question in every marriage case is whether the couple married to build a life together rather than to obtain immigration benefits. Officers look at joint leases or mortgages, commingled bank accounts, joint tax returns, insurance naming each other, children born to the couple, photographs over time, and evidence of a shared household. At the interview, spouses may be questioned together or separately about the relationship and daily life. A prior finding of marriage fraud under INA § 204(c) permanently bars approval of any later petition for that person, which is why earlier filings and prior marriages must be reviewed before anything is submitted.
The affidavit of support
The petitioning spouse must file Form I-864 and show household income of at least 125% of the federal poverty guidelines for the household size. If the petitioner’s income is not enough, assets or a joint sponsor can be used. The I-864 is an enforceable contract with the government and can be enforced by the immigrant spouse, so the sponsor should understand the obligation before signing.
Conditional residence and the I-751
If the marriage is less than two years old when the green card is approved or the immigrant is admitted, the foreign spouse receives a two-year conditional green card. The couple must file Form I-751 jointly during the 90 days before the card expires. If the marriage has ended, or the spouse was abused or would suffer extreme hardship, the conditional resident can file with a waiver of the joint-filing requirement. Missing the window terminates conditional residence. See The I-751 90-Day Window: What Happens If You Miss It.
Marriage cases with complications
Many marriage cases are not routine. A prior removal order, a prior unlawful entry after a removal or after more than a year of unlawful presence, a criminal record, a false claim to U.S. citizenship, or a prior misrepresentation can make the foreign spouse inadmissible or ineligible to adjust, and some of those grounds have no waiver. When a couple marries while the foreign spouse is in removal proceedings, INA § 245(e) presumes the marriage is fraudulent unless the couple proves by clear and convincing evidence that it is bona fide. USCIS also now issues Notices to Appear more often when it denies an application filed by someone with no other status, so a weak or ineligible filing can start a removal case. These issues have to be identified before filing, not after.
Related reading: Can You File an I-601A While You’re in Immigration Court?, criminal waivers of inadmissibility, deportation and removal defense, and family-based immigration.
Marriage green card FAQs
How long does it take to get a green card through marriage?
For the spouse of a U.S. citizen, the case is driven by USCIS or consular processing times, which vary widely by field office and consulate. For the spouse of a permanent resident, the wait for a current priority date in the F2A category is added on top of processing. USCIS posts current processing times on its website.
Can my spouse get a green card if he or she overstayed a visa?
If you are a U.S. citizen and your spouse was inspected and admitted, an overstay generally does not prevent adjustment of status inside the United States. The rules are different for spouses of permanent residents and for people who entered without inspection.
What if my spouse entered the U.S. illegally?
An entry without inspection usually means the case must go through a consulate abroad, typically with an I-601A provisional waiver approved first. Some people qualify to adjust under INA § 245(i). A prior removal or a re-entry after unlawful presence can make the case far more difficult, so the full immigration history must be reviewed first.
Can my spouse work while the green card case is pending?
A spouse who files Form I-485 can file Form I-765 for a work permit and Form I-131 for advance parole at the same time. Traveling abroad without advance parole while the I-485 is pending generally abandons the application.
Talk to a marriage green card lawyer
Book a consultation in person at 3233 E. Broadway, Long Beach, or by phone or video from anywhere in the country. You can also call (562) 495-0554. Hablamos español.