New York Lawyer's Legal Updates

How To File For Marriage Based Green Card

Author: Marriage Immigration Attorney Alena Shautsova

New York Immigration lawyer Alena Shautsova helps immigrants to apply for the marriage-based immigration benefits in the United States.

One of the most common types of Immigration cases every practitioner encounters is an application for an immigration status based on marriage. These applications can be sorted out to two main groups: applications based on marriage based to a U.S. citizen (a USC) and applications based to a marriage to a green card holder (or lawful permanent resident, LPR).

First, a USC or an LPR who just got married and would like to sponsor their spouse, need to have a plan of action based on where their spouse is located: in the United States, or overseas.

If their spouse is in the United States, the couple should consult with an attorney to see if the non-resident spouse can adjust or obtain permanent resident status without leaving the United States. Usually, if the non-resident spouse entered the country legally, he/she will be able to receive a green card without leaving the US if he/she married a US citizen. If the other spouse is an LPR, the non-resident might have to wait for the spouse to become a USC, or will have to leave the country and get an Immigrant waiver and an Immigrant visa. However, in every case of somebody who has resided in the US for a long time and now decided to leave the country to “fix” the Immigration status, such a person needs to consult with an Immigration attorney before leaving. A simple consultation may say years of separation and grief.

If one who is in the US is married to a USC, then, in most cases, a couple will be able to resolve all Immigration issues without having to be separated. In this case, a couple will have to file an adjustment package: forms I-130, I -130A, I-1485, I-765, I- 131, and I-864, and supporting documents (“the adjustment package”). The couple will have to pay applicable fees as well. It is essential to use the current editions of the forms and submit correct fees. To find the forms, one would have to visit The forms are free, but there are filing fees. The filing fees are changing often, and it is important to submit correct fees to avoid rejections of the filing. If non-citizen/resident has some immigration issues, such as potential charges of inadmissibility related to fraud, misrepresentation, criminal convictions, the filing package will have to include a waiver as well. This is in case a person is otherwise adjustable. For example, a person entered the US under someone else’s name; he/she was inspected and admitted. A person committed misrepresentation/fraud at the time of entry and is inadmissible based on that fact. But now, a person is married to a US citizen who will experience extreme hardship in case of a separation. The applicant hence can file a waiver together with the adjustment package.

Now every immigration issue can be resolved with a waiver: the claim of US citizenship, aggravated felonies, many controlled substance-related convictions may not be resolved with a waiver.

In addition, one has to keep in mind recently changing regulations related to the public charge inadmissibility. Since February 24, 2020, a person may have to submit form I 944 together with the adjustment package. But the laws here are changing daily and one has to check website before submitting the package to make sure if he/she needs to include I 944 in the adjustment package.

If a person has previous removal/deportation order, or is now in deportation/removal proceedings, the procedure may be different. A person may have to either file for additional waivers or file a motion to reopen before he/she can submit the adjustment package. In general, once a person has been placed in removal proceedings, it will be Immigration court and not USCIS that will have jurisdiction over one’s adjustment of status application. Note, that USCIS has jurisdiction over I 130 submission, even when a person is in removal proceedings.

If one married to a USC or a green card holder and is now located outside the US, the US-based spouse will have to start the process by filing an I-130 form with applicable documents.

Then, the US-based spouse will have to continue the process, by working with the NVC and consulate. The spouse who is overseas will be able to apply and receive an Immigrant visa first, and upon arrival to the US, he/she will be issued an actual “green card.”

Whether the non-citizen received green card overseas or in the United States, if the marriage to a US citizen is less than two years old at the time of the immigrant visa application (adjustment of status), the non-citizen will get only a temporary or conditional permanent residency. The condition will have to be removed for the immigrating spouse to be able to get a permanent resident card and qualify for naturalization (citizenship).

If one decided to handle the process him/herself, he/she should first review the forms and instructions and visit the NVC website that explains the steps for those whose spouses are overseas.

If the marriage is less than two years old at the time a person receives an immigrant visa or adjustment of status, a person will have only conditional residency and will have to prepare to apply for removal of the condition within the 90 days before the second anniversary of the conditional residency. In certain situations, this time restrictions can be lifted or excused.

If marriage results in divorce, or if there is an abuse during the marriage, the immigrant may be able to qualify for self-petition and/or file for removal of conditions based on a waiver of joint filing.

If you need help with marriage-related Immigration benefits, please contact us to reserve a confidential appointment by calling 917-885-2261.

23 August 2020
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