Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card Cont’d – Living in the U.S. and Married to a LPR

I have used the last three postings of the Seattle Immigration Lawyer Blog to discuss this popular topic and after this current posting it will be time to move on. In this last scenario, if the immigrant spouse is living in the U.S. and married to a U.S. LPR, the LPR files the visa petition with USCIS, which goes into the now familiar “lockbox.” When the immigrant spouse’s priority date is current, or close to that time, the petition will hopefully be approved.

But, here is where it really gets ugly. The immigrant spouse living in the U.S. who is married to a U.S. LPR may be trapped because the only way he or she can stay in the U.S. and adjust status (apply for a green card) is if he or she has been in status, that is legally living in the U.S., this whole time, and not working illegally. (There is an exception if you started the process when earlier laws governed. As always, you should consult with an experienced immigration attorney to determine if any exceptions apply to you.)

As an immigration lawyer, and simply as a person with at least some common sense, I think this is quite frankly, unfair. After all, it could take years before your priority date is current. (Or not, it depends on the backlog. As of Sept. 2010, the priority date for 2A was 1/1/2010. But, for example, just last year there was a backlog of around 5 years.) One option is to leave the U.S. before staying illegally for 6 months, wait for the priority date to become current and go through the consular processing system abroad.

However, as is often the case, the spouse has been living out of status in the U.S., which could trigger a bar on re-entry to the U.S. (there are various bars, the main two are: 3 year bar for those unlawfully present for 180 days after 4/1/97; 10 year bar for those unlawfully present for 365 days after 4/1/97).

Another option would be to stay in the U.S., out of status, and hope to adjust status once the priority date is current, but the immigrant spouse would be vulnerable to removal the whole time, which is not a pleasant way to live, and, of course, illegal.

Yet another option would be to leave the U.S. after staying longer than 6 months out of status, but less than a year, so the 3 year inadmissibility bar applies but not the 10 year. Whether this is crazy or not depends on the waiting period, and the processing times for your consulate.

Of course, ideally, the U.S. LPR spouse will become naturalized, which will allow you to upgrade the application and do away with the “lockbox”. I can’t think of a good reason to wait until your U.S. LPR spouse is a citizen before filing the green card application. If your spouse becomes a citizen, that’s wonderful, you can upgrade the petition then, but you might as well get in line right away.

Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card

In my last two Seattle immigration lawyer posts, I wrote about the asylum route to a green card. A more common path to obtaining a green card is through marriage to a U.S. citizen or a U.S. green card holder (officially called a lawful permanent resident, which is known in immigration lingo as an “LPR”). What follows is only a brief overview of the process but it should provide a taste of what to expect. (You should of course consult with an immigration lawyer regarding your specific situation.) You will see that it is much easier, and, more importantly, much faster, if the petitioning spouse is a U.S. citizen. This is because there is no waiting period for immediate relatives of U.S. citizens (which include spouses, parents, and unmarried children under 21).

Before I run through a few scenarios to describe the process, you should know that some immigrants are simply not eligible for adjustment of status (becoming a permanent residence). In a future article, I will discuss some of the grounds for inadmissibility and whether waivers exist for them. For now, readers should be aware that there are a plethora of these grounds, some obvious, such as if your last entry to the U.S. was illegal, and others less obvious, and you will want to figure out if one applies to you. If one does, you’ll definitely want to consult with an experienced immigration attorney about your particular case.

Regardless of your situation, the U.S. citizen or LPR spouse will need to prepare the visa petition. This includes: the Form I-130, Petition for Alien Relative; Form G-325A, Biographic Information (one form for each spouse); photos of the petitioner (U.S. citizen or LPR) and beneficiary (immigrant); proof that petitioner is U.S. citizen or LPR; proof of a valid marriage, including a marriage certificate, and if there’s a previous marriage for either spouse proof that it was terminated; and filing fee of $355.

Living In U.S. & Married to U.S. Citizen

Now, in the case of an immigrant already living in the U.S. and married to a U.S. citizen, the U.S. citizen, as in all of these cases, starts the ball rolling. In this situation, the U.S. citizen submits the visa petition (see I-130 and other documents above) simultaneously with the immigrant spouse’s permanent resident application (Form I-485). Note that I-485 is filed at a different location than the I-130, so read the instructions! (Reading the instructions for any immigration form is a must, along with making sure that you have the most up to date version.) The I-485 will include, among other documentation, a medical report and an affidavit of support (Form I-864).

Once USCIS receives the I-130 and I-485, the immigrant will receive a fingerprint appointment notice, and then an interview appointment notice. Since both the U.S. citizen and immigrant spouse are in the U.S. in this scenario, both must be at the interview. The key issue at the interview is proving that the marriage is not a sham. The intricacies of proving a bona fide marriage will be the subject of a future article. Hopefully, the application for permanent residence will be granted at the interview. (Note that a conditional residence will be granted if the marriage has been for less than 2 years by the time the interview occurs.)

Stay tuned for my next article that will cover how to get a green card for an immigrant living abroad who is married to a U.S. citizen.