Marriage to a U.S. Citizen
If you are a U.S. citizen or lawful permanent resident (“LPR,” also known informally as a “green card holder”), you can petition for your spouse to “adjust his or her status” to become an LPR. (Please see the Family Immigration page for general information on adjustments of status.) If your petition is granted, your spouse will hold lawful permanent residency for a period of 10 years.* LPR status includes the right to work in the U.S. In addition, if your spouse is a permanent resident for three years and emains married to you, s/he may then apply to naturalize and become a U.S. citizen.
* If your marriage is less than two years old, the approved residency is considered “conditional.” In this case, your immigrant spouse will hold a green card that is valid for two, rather than 10, years. Before this conditional residency expires, the immigrant spouse must submit a request to remove this condition. Once it approves the request, USCIS will grant permanent residency for 10 years. It is extremely important to file this petition on time as failure to do so will likely result in your spouse being placed in removal (deportation) proceedings. Once in removal proceedings, you can still fight your case in immigration court, but it will be a much more complicated, expensive, and lengthy process.
Does conditional residency count toward naturalization / U.S. citizenship requirements?
Yes, those two years of conditional residency count toward the three years of lawful permanent residency your immigrant spouse must have before s/he can apply for citizenship. However, this two-year period gives USCIS another chance to evaluate the validity of your marriage. At the end of the two-year conditional period, if you are not still married, the immigrant spouse must file to petition on his/her own and explain why s/he is no longer married. You should consult with us immediately if you are in this situation.
How is the process different if I file for my spouse as a U.S. citizen vs. as a Lawful Permanent Resident?
Filing as a U.S. Citizen
If you are a U.S. citizen, your spouse is considered an “immediate relative”. After marriage, you may apply for your immigrant spouse by submitting the required forms and documentation to the appropriate USCIS office. Because you are a U.S. citizen, your spouse may be able to apply, at the same time, for an adjustment of status and work permit for your spouse. After USCIS receives your application, it schedules an interview with both of you to determine your spouse’s eligibility for LPR status.
Filing as a Lawful Permanent Resident (“LPR”)
Like U.S. citizens, if you have a “green card” or “mica” you can also petition for your immigrant spouse to become an LPR. However, the time that this takes is much longer than the petition process for U.S. citizens. This is because there is a cap placed every fiscal year on the number of immigrant visas available for spouses of LPRs. This cap is based on the country where your spouse is a citizen. Your spouse will have to “wait in line” in the order in which his or her petition was filed before he or she can get a visa.
Unlike U.S. citizens, you may not file an Adjustment of Status application for your immigrant spouse until a visa becomes available for his/her preference category. This waiting period begins after USCIS receives your I-130, which establishes the spousal, or marital, relationship between you and your immigrant spouse. Only after the visa becomes available can you apply for your spouse’s Adjustment of Status and work permit. Many spouses of green card holders will not be eligible to adjust status in the U.S. They may need to obtain an immigrant visa by consular processing along with a waiver for any unlawful presence they may have accumulated while living in the U.S. You should consult with us before filing an adjustment of status application.
What forms are required to file for my spouse?
The forms you will use are:
What are the requirements for Adjusting Status?
Proof That the Marriage Is Valid (or “Bona Fide”)
USCIS, formerly known as INS, takes very seriously the question of whether the marriage is a valid, or “bona fide” (meaning, “in good faith”) marriage. It requires that petitioners provide documents that will prove that your marriage to your immigrant spouse was not just for immigration-related purposes. Examples of documentary evidence that you should submit include, but are not limited to, photos showing the span of your relationship with your spouse; and bills, contracts, or statements that show how you and your spouse share financial responsibilities.
Proof That You (or Another Relative) Can Act as Financial Sponsor for Your Immigrant Spouse
USCIS will not grant legal permanent residency (or a green card) to your immigrant spouse unless you can show that you (or, in some circumstances, another person) can financially support him or her. You will need to submit documents that prove that you have enough income to prevent your spouse from relying on public benefits such as food stamps, Medicaid, or Supplemental Security Income (SSI).
After USCIS receives the application and filing fee payment, you and your immigrant spouse will be called to appear in an interview to talk about and submit evidence about these two issues (whether your marriage is valid, and whether your spouse will have adequate financial support as an LPR).
What are the requirements for financial sponsorship?
What if I don’t meet the Income requirements for financial sponsorship?
If your income falls below the requirements for financial sponsorship, you may submit proof of other assets such as savings accounts, stocks, bonds, or property to show your financial ability.
If you cannot meet the financial qualifications with your income and other assets, the income of certain other household members can be added to your income level if they sign the contract on Form I-864A (“Affidavit of Support Contract Between Sponsor and Household Member), which shows that they agree to make their income or assets available for the support of your immigrant spouse.
If you still cannot meet the financial qualifications, another person must complete a separate I-864 (“Affidavit of Support”) to become a joint financial sponsor of your spouse’s immigration. This joint sponsor must meet all of the sponsorship requirements separately, and must be willing to assume, along with you, financial liability for your spouse.
If my spouse and I are in a same-sex marriage, can my immigrant spouse still become an LPR?
Yes, as of July 1, 2013, immigration visa petitions filed on behalf of a same-sex spouse are reviewed in the same manner as those filed on behalf of an opposite-sex spouse. As long as all other immigration requirements are met, same-sex spouses are allowed the same immigration benefits as the opposite-sex spouses of U.S. citizens. Lazaro Salazar Law recently had one of the first such cases approved by Fresno USCIS.
What if I filed a petition for my Spouse when I was an LPR, but now I am a U.S. citizen?
If you become a U.S. citizen while your immigrant spouse is waiting for his/her visa, you can upgrade your spouse’s visa application category and advance the processing time of the petition. You must notify the appropriate USCIS office of the change. If your spouse’s I-130 has already been approved by USCIS, you must contact the National Visa Center with your change in status.
If my immigrant spouse has a Criminal Record, can s/he still become an LPR?
It depends on the circumstances of what happened. The best thing to do is to contact an attorney as soon as possible to determine how your criminal history may affect your particular immigration status. We are experts in analyzing the effects of criminal issues on immigration cases.