Marriage-Based Green Card: An Overview!
So you’re getting married or you’ve recently married. Mazel tov!
Whether you're a dreamer, an exchange student or someone coming to the United States just to be with your loved one, now is the time to get all your documents in order and apply for legal permanent residency (known as “a green card”). If you’re looking for help from an immigration expert to guide you in the process, now is also the time to get a lawyer involved.
The first step to hire the Law Office of Parviz Malakouti to handle your case is to book a consultation.
All green card cases have a number of important factors to consider but marriage-based green card cases in particular have even more issues to address because the non-resident spouse’s eligibility is based on a romantic relationship.
Here are some important issues to consider, particularly for marriage-based green card cases.
Increased Scrutiny for Marriage-Based Cases
In any marriage-based green card application, the U.S. citizen or legal permanent resident is called the “petitioner” and the person applying for the green card is called the “applicant” or “beneficiary.”
USCIS treats marriage-based green card applications with suspicion and that’s because USCIS suspects that as high as 30% of marriage-based green card applications are based on fraud. So, in order to have a successful outcome, it’s important that the couple take the steps to probe to USCIS that the marriage is real i.e. “bona fide” by gathering and presenting the appropriate evidence.
A bona fide marriage is a marriage that was entered into for love and not merely for the purpose of securing a green card for the beneficiary. Evidence of a bona fide marriage can be given in paper form via documents and also in an in-person green card interview via what the couple tell the adjudicator under oath, which is discussed below.
Is it a Real Marriage?
Documentary evidence of a bona fide marriage is submitted at the beginning of the green card application process with the filing of the I-130 petition for alien relative. It can include:
A joint apartment lease or mortgage document;
Joint bank account statements:
Joint health care plan;
Joint car lease or ownership of an automobile;
Document showing insurance plan taken by one spouse with the other spouse as the beneficiary;
Joint telephone plans;
Birth certificate of any children had in the course of the marriage;
Wedding photos and photos of the couple's life together;
Other documentary evidence as well.
The couple can also be called upon to provide such evidence right in the middle of the process in what’s called a request for evidence after submitting the I-130.
As mentioned above, verbal evidence of a bona fide marriage is given at a green card interview attended by both the petitioner and the applicant. These interviews give the USCIS adjudicator the opportunity to see the couple in person and observe their demeanor while answering questions.
Generally, the USCIS adjudicator has wide latitude to ask questions about the lives of both the petitioner and the beneficiary including questions about how they met, the progress of their relationship, and the nature of their relationship. If the adjudicator suspects fraud, he or she can even separate the petitioner and beneficiary in what is called a “Stokes Interview” and ask them questions separately, recording the answers and then later evaluate the answers to see how those answers match with one another.
There is an element of randomness in these interviews because a lot of the interview can turn on the personal nature and temperament of the interviewing USCIS officer. Some are professional while others are unprofessional. Some are kind, while others are gruff. The length of the interviews can also range from as little as 20 minutes to several hours long if fraud is suspected.
You may be represented at the interview by a licensed attorney of your choice and at your own cost. At the Law Office of Parviz Malakouti, we prepare clients for a difficult interview so that we are not caught off guard if we get a combative interviewing officer.
We prepare for the worst and hope for the best.
In such conditions, even a couple in a real marriage can get nervous and answer questions incorrectly due to stress, or lack of preparation for the interview.
Proper preparation and guidance is key!
Adjustment of Status vs. Consular Processing
A big question looming in the minds of many marriage-based green card applicants is: Do I have to leave the United States for my process or can I complete the entire process staying within the United States?
To answer that, let’s clear up some terminology first. Applying for a green card from within the United States and staying in the United States for the entire process, including the interview is called adjustment of status (“AOS”). AOS applicants usually interview at USCIS field office in or close to the city that they live in.
On the other hand, a green card application process in which the applicant attends an interview at a consulate in a country outside of the United States is called consular processing (“CP”). CP applicants typically (but not always) interview at the consulate in their home country.
So, a CP applicant from El Salvador would interview at the consulate in San Salvador, El Salvador. A CP applicant from France would interview in Paris, France, and so on. The applicant who consular processes can start the process being within the United States or outside.
Most applicants inside the United States prefer to stay inside the United States for their process for a number of reasons beyond the scope of this article. However, unfortunately not all green card applicants are eligible to apply for AOS. That’s because there are a number of personal circumstances related to an applicant’s previous immigration violations, or criminal history that can prevent them from adjusting status.
It’s also important to know that in some circumstances, it’s actually more advantageous to consular process outside of the United States instead of to adjust status.
If you’ve had any previous immigration violations, including a) a visa overstay, b) entry without inspection or c) any criminal convictions, you should consult an immigration law office to determine whether you’re eligible to apply for a green card and if so, whether you’re able to adjust status or consular process.
2 Year “Conditional” Green Card for New Marriages
USCIS is so distrustful of green card applications based on new marriages that if you’ve been married for only two years at the time of being issued a green card, they only give you a two year green card!
The two year green card is a conditional green card that requires the applicant to apply to “remove conditions” in the ninety day period before the two year anniversary. That means you have a period of ninety days to submit the application to remove conditions. Properly applying the remove the conditions is absolutely critical and failure to do so can result in the applicant falling out of immigration status, and even ending up in removal (i.e. DEPORTATION proceedings.
How do you “remove conditions?”
Well, basically you go through a similar process as the initial green card application, but with more of an emphasis on proving that you’re still married to the petitioner and that your life together in the two years since you got your conditional green card looks like the life of a real married couple. The application to remove conditions is the I-751, but as with most immigration applications, a strong one will have a number supporting documents as well, making the case for the immigration benefit.
Once you've removed condition, the next step is to apply for naturalization and become a U.S. citizen.
For a removal of conditions, it can also help to have a lawyer represent you in the process.
Some Waivers Are Available
If you’ve had any previous immigration violations, having married a U.S. citizen may qualify you for a waiver to help you overcome those violations.
A “waiver” for an immigration violation means that you’ll no longer be subject to some or all of the consequences of that violation. In rough terms, it’s kind of like a pardon for the immigration violation.
The types of immigration violations that can possibly be “waived” if you’re applying for a marriage-based green card are:
Having fallen out of immigration status;
Having worked without employment authorization; or
Having entered the United States without inspection (“EWI”);
Others as well.
Sometimes the immigration violations are waived without necessity to request it, but in other instances, a waiver application must be made. Waiver applications can be quite complex, and typically when they’re made properly, they’re accompanied by a mountain of supporting documentary evidence. Some of our waiver applications have over 200 pages of supporting documentation or even more.
In any case, if you think you’ve had any previous immigration violations or previous criminal history, you should contact a qualified immigration law office like ours to evaluate your situation.
Contact Our Office for a Consultation
When you’re dealing with something as critical as your future in the United States, you don’t want to take chances. Here at the Law Office of Parviz Malakouti, we have years of experience helping people successfully navigate the process of applying for a green card.
When you retain us to represent you in your immigration case, this is what we do;
Step 1 - We screen you to make sure you’re eligible for legal permanent residency (a green card).
Step 2 - Identify any issues your case may have under U.S. immigration law.
Step 3 - Guide you in gathering your necessary documents & filling all the appropriate forms.
Step 4 - We assemble and submit the application package.
Step 5 - We deal with all communications with USCIS on your behalf regarding your case, including responses to any simple or complex requests for evidence (“RFE”s).
Then we guide you for one of the most challenging parts of the process - the green card interview.
We prepare you for the green card interview with two separate preparation sessions. In those sessions, we go over any sensitive areas of the case, as well as strategies to remain calm, cool and clear-headed during the interview which can be a stressful process. If your spouse is part of the interview, we prepare him/her as well.
Lastly, we represent you at the green card interview interview either in person or via telephone, making sure that you have an experienced, hard-nosed immigration attorney in your corner to protect your interests and make sure your rights aren’t violated.
If you’re ready to become a legal permanent resident of the United States of America, book a consultation now.
The Law Office of Parviz Malakouti does not guarantee the accuracy of information presented nor assume responsibility for actions taken in reliance of this information. The information in this page could become outdated. Each immigration case is particular and you should consult with a qualified, licensed immigration lawyer about your case before taking any steps.