Marriage-based green cards are given to the spouses of U.S. Citizens or Permanent Residents who apply to live in the U.S. permanently.
This article will cover everything you need to know about marriage-based green cards including the basic benefits they provide, how to file for one, an outline of the process, and the ways in which they differ from other comparable visa types.
As always, it’s recommended that you speak with an attorney before applying if you are unsure of your eligibility or have any concerns.
Marriage-Based Green Card Basics
The marriage-based green card is a way for foreign spouses of U.S. citizens and permanent residents to gain permanent residency status in the U.S.
U.S. Citizenship and Immigration Services (USCIS) generally divides this green card into two preferences: The first is “conditional residency” and is for marriages that were shorter than two years when the Green Card application was filed. The second is “permanent residency” if the marriage was longer than two years when the Green Card application was filed.
Permanent residents and U.S. Citizens can both petition for their spouse. However, spouses of U.S. Citizens can apply for citizenship after they’ve had a Green Card for three years, while spouses of Permanent Resident must wait five years before they can apply for citizenship.
USCIS’ main concern is that the marriage/relationship is legitimate and was not entered into just to receive an immigration benefit. USCIS will also conduct a criminal history/background check of the foreign spouse and ensure there are no previous immigration-related issues that make them ineligible to become a Permanent Resident.
*Just a note: In this article, the U.S. Citizen/Permanent Resident spouse will be referred to as the “Petitioner” (since they are petitioning for the foreign-born spouse) and the foreign spouse will be the “Beneficiary” (since they are applying to receive the immigration benefit).
Conditional Residency
As mentioned above, if a marriage between the Petitioner and Beneficiary is less than two years old when the Green Card application is filed, the beneficiary spouse will receive Conditional Residence when the application is approved. This means their Green Card will only be valid for two years (instead of the usual ten years).
USCIS makes this distinction to avoid “green card marriages” where couples marry only to receive the immigration benefit. Basically, before your conditional residency expires (no more than 90 days before) the foreign spouse must file to “remove” the conditions on the Green Card by proving to USCIS that for those past two years the couple were living together as husband and wife.
The Beneficiary has to file Form I-751 and provide the evidence. Once the application is approved and the conditions are removed, the Beneficiary will receive a new Green Card that is valid for 10 years.
Other than only being valid for two years, the CR-1 Green Card grants all the benefits of being a U.S. Permanent Resident. It allows you to work legally in the U.S., get a social security card, pay taxes, get a driver’s license, etc.
I mentioned that in order to remove conditions you have to provide evidence you’ve been living as husband and wife for those two years, but what if you have separated, divorced or the marriage otherwise ended during those two years?
Thankfully, the beneficiary spouse can still apply to remove conditions and receive the full permanent residency. All that is required is to show that the relationship and marriage were legitimate when entered into. If the marriage ended but the couple is still on good terms, the U.S. Citizen/Permanent Resident petitioner can help provide evidence of the relationship and explain why it didn’t work out. Cooperation of the petitioning spouse helps but it is not necessary. The beneficiary spouse just has to show the relationship was legitimate when it was entered into.
Additionally, if you are a beneficiary spouse and the petitioner spouse abuses you, you do not have to stay with them just because you are worried about losing your conditional residency, you may separate from them while also remaining in the country. You may still qualify to remove conditions if, as mentioned above, you can prove the relationship was legitimate when entered into. Another option for abused spouses of U.S. Citizens might be to file a new, self-petition under the Violence Against Women Act (VAWA).
Permanent Residency
On the other hand, if the Petitioner and Beneficiary were married for more than two years when the Green Card application was filed, the Beneficiary gets to skip the Conditional Residency steps and will receive a Green Card that is valid for 10 years right away.
You should not be surprised to learn that USCIS usually requires more relationship evidence for these applications vs. for conditional residency. Applicants for Conditional Residency can sometimes get away with less evidence because USCIS understands that newly married couples may not have had time to do things like register joint accounts or property or file taxes jointly and because USCIS knows that in two years they will have another opportunity to examine the couples’ relationship.
With marriages older than two year, USCIS only has the one opportunity to examine the evidence and determine if the relationship is real before granting a 10-year Green Card. Because of this they will likely look more closely at the case.
How to File for a Marriage-Based Green Card
While the outcomes and requirements are different, the actual filing processes for each type of visa is generally the same.
The biggest factor which will affect your application is whether or not you already reside in the U.S.
If the beneficiary spouse is living in another country, they’ll go through “consular processing,” which is an application process and interview that will all be done through the consulate in the beneficiary’s country of residence.
If the beneficiary is already in the U.S., they can file their applications with USCIS without having to leave the U.S. However, if the beneficiary spouse entered the U.S. unlawfully, overstayed a visa, or there are any other potential issues with their immigration status in the U.S. I highly recommend you speak to an immigration attorney before applying.
The first step is to file the applications with USCIS. Whether the beneficiary is inside or outside the U.S., the petitioner files forms I-130, Petition for Alien Relative and I-130A, Supplemental Information. These applications are filed by mail and are to prove to USCIS that the couple is legally married and that the relationship is legitimate.
If the beneficiary is already in the U.S. and has no unlawful entry/illegal presence issues, they can usually include Form I-485 (Green Card application) at the same time as the I-130 applications.
If the beneficiary is outside the U.S., they must go through consular processing. For consular processing, once the I-130 application is approved, USCIS will transfer the case to the National Visa Center (NVC) and the remainder of the case will be handled by the NVC and the consulate in the beneficiary’s country.
When filing the applications, it is important to follow the instructions provided by USCIS and to include all the necessary evidence and filing fees.
Steps if the Beneficiary is Filing from Within the US
- File your application package with USCIS (you will normally receive a receipt notice with a case number within a few weeks).
- If necessary, USCIS will schedule an appointment for the beneficiary to get fingerprinted so they can conduct a background security check.
- After a USCIS officer has reviewed your package and determined the applications are complete and the necessary evidence has been submitted, they will schedule an interview. The interview is for both spouses to appear, review the evidence and answer questions to determine that the marriage is legitimate.
- After the interview, USCIS will make their decision and either approve the application, request additional evidence, or deny the applications. If the applications are approved, the Green Card will be mailed to the beneficiary spouse.
Steps if the Beneficiary is Outside the US
- The Petitioner will file the I-130 applications with USCIS, which will take several months to be approved.
- Once the I-130 is approved, USCIS will transfer the case to the National Visa Center (NVC).
- The NVC will email the couple with the information needed to login and fill out the applications.
- Once all of the information has been provided to the NVC, they Consulate/Embassy will schedule an interview.
- After the interview, the beneficiary spouse will receive a visa stamp and be able to travel to the U.S.
- Upon entering the U.S., the Green Card is mailed to the beneficiary in a matter of weeks.
USCIS Interview Information
During the USCIS interview (for either the I-130/I-485 applications or just for the I-130), they will be asking questions to determine if your marriage is legitimate and was not entered into just for an immigration benefit.
The evidence you submit with your applications can help this interview go smoothly. You should bring copies of all your submitted evidence and, if anything has changed or you have new evidence that might be helpful, you can bring that to your interview as well.
The most helpful types of evidence to show a legitimate relationship are:
- Children: not required but obviously goes a long way towards showing USCIS this is a legitimate relationship
- Shared Finances: join bank accounts, credit cards, jointly filed taxes, and bills in both of your names
- Joint Property: car titles, lease or mortgage, cell phones, etc.
- Any other evidence to prove your relationship such as: letters from friends and family who know you as a couple, photos together, messages/letters you wrote each other, etc.
- If the beneficiary is abroad: proof of trips to visit each other or travel together will be very helpful so keep your plane tickets, travel receipts and take lots of pictures!
There are many different things USCIS might ask about during the interview. They may even separate the two of you during questioning so they can compare your answers. Topics can range from general relationship questions such as how you met or when you got married to much more specific questions such as the color of your spouse’s toothbrush or what side of the bed you sleep on.
If you have provided solid evidence and answer the questions truthfully you will have nothing to worry about. The more specific questions are usually reserved for cases where USCIS has suspicions about the legitimacy of the relationship.
How Long Does it Take?
Processing times will vary but, typically, filing all the petitions at once from inside the U.S. will take 6-10 months while going through the consular process will take roughly one year. Keep in mind that due to COVID and travel restrictions, the consular process especially may take several months longer than normal.
If there are errors on your applications or missing evidence when you file, USCIS will send a Request for Evidence, which is just a letter explaining what information is missing or what evidence they need. Receiving a Request for Evidence can delay the application for several weeks, even if you respond immediately. For this reason, it may help to have an experienced immigration attorney prepare your applications and evidence for you to ensure nothing is missing and to lower the chance of receiving a Request for Evidence.
Conclusion
Spouses of U.S. Citizens/Permanent Residents can apply for marriage-based green cards so they can live permanently in the U.S. with their spouse and eventually receive citizenship.
This process will vary based on if the beneficiary spouse is living in the U.S. or abroad and on whether the couple has been married more than two years or not at the time of fling.
Although it will take about a year in total, getting a marriage-based green card is still one of the fastest and most straight-forward ways to receive a green card.
An attorney can help you through the application process and make sure you can enter the country safely and easily.