Marriage Visa for a U.S. Citizen Spouse

Introduction to Marriage Visas

For couples where one spouse is a U.S. citizen or a U.S. permanent resident and the other is a foreign national, the marriage visa, often referred to as a marriage-based green card, offers a pathway for the foreign spouse to live and work in the United States as a lawful permanent resident. This process, overseen by the U.S. Citizenship and Immigration Services (USCIS) or the Department of State, which encompasses U.S. Embassies and Consulates, enables eligible spouses to obtain permanent residency – otherwise known as a green card. Permanent residency eventually affords a path to U.S. citizenship.

The marriage-based green card process is one of the most common immigration pathways for the alien spouse of a U.S. citizen and permanent resident to obtain a green card, providing a legal framework to build a life together in the U.S. The marriage-based green card allows the spouse to live and work anywhere in the United States.

The journey involves several steps, including filing an immigrant visa petition, which requires documents such as marriage certificates, evidence of the petitioner’s legal status, as well as proof of a valid marriage at its inception, and navigating either the consular process or adjustment of status. This guide, crafted by Oltarsh & Associates, P.C., a New York-based immigration law firm, offers a comprehensive overview of the marriage visa for a U.S. citizen spouse, ensuring couples understand each phase and the associated eligibility requirements.

Eligibility and Requirements for a Marriage Green Card

To qualify for a marriage green card, couples must meet specific eligibility criteria set by the USCIS. The cornerstone of the application is proving a bona fide marriage—a genuine, legally recognized relationship entered into with the hope of building a life together. The marriage must be legally recognized, not against U.S. policy, such as child marriages or polygamous marriages, and both heterosexual and same-sex marriages are equally recognized under the law.

Proof of the good faith of the marriage must be proffered through documentary evidence. Thereafter, the foreign national spouse must prove eligibility to receive the green card and that the foreign national will not be a public charge, which requires an affidavit of support from the petitioner, and possibly other individuals as well.

Key requirements include:

A valid marriage, evidenced by a valid marriage certificate. In cases where the petitioner and/or beneficiary were previously married, evidence of legal termination of any prior marriages, such as divorce decrees or death certificates, is required.
Proof of a bona fide marriage, including if available evidence of comingling of assets and liabilities such as joint bank account statements, joint credit cards, insurance, lease agreements, utility bills are best evidence. Additional evidence such as photographs, evidence of ties to one another, or affidavits from friends and family can also be helpful.
The foreign spouse must be admissible to the U.S., meaning they have no grounds of inadmissibility (e.g., criminal history, prior immigration violations, or health issues requiring an immigration medical examination).
A government-issued birth certificate or in the rare case that one does not exist, two affidavits of individuals with knowledge of the circumstances of the birth
For a foreign national outside the United States, a valid passport
For the U.S. citizen, valid proof of citizenship via a naturalization certificate, U.S. Passport or U.S. birth certificate
For a U.S. permanent resident, the permanent resident card or an I-551 stamp
The U.S. citizen or permanent resident spouse must file a petition for an alien relative (Form I-130) to initiate the immigrant visa application.

Failure to provide sufficient evidence may lead to scrutiny for suspected marriage fraud, which USCIS investigates rigorously. Consulting an immigration attorney can help ensure all civil documents are correctly prepared to avoid delays or denials.

Petitioning for Your Immediate Spouse Alien Relative

The first formal step in the green card application process is filing the petition for your spouse as an alien relative on Form I-130 with the USCIS. This form, submitted by the U.S. citizen spouse, establishes the marital relationship with the alien spouse and is a critical component of the immigrant visa petition. The submission of Form I-130 and Form I-130A by the spouse also requires a filing fee, which must be paid to USCIS. The petition requires supporting documents, including:

Marriage certificates to confirm the legal marriage.
Birth certificates and proof of the U.S. citizen’s status (e.g., a naturalization certificate or U.S. passport).
Proof that prior marriages have terminated, if applicable
Evidence of a bona fide marriage, such as joint bank accounts, shared utility bills, or photos of the couple together.

Upon submission, the USCIS issues a receipt notice confirming the petition has been received. The agency reviews the petition and may request additional evidence or schedule an interview to verify the relationship’s authenticity.

Note that permanent resident spouses may not be immediately eligible for a green card inasmuch as they are on the priority wait list, which may have a backlog. Permanent residence cannot be applied for until the priority date is current. In addition, if the petitioning spouse is a permanent resident and the petitioner obtained residence through a spousal visa, the Marriage Fraud Amendment Act places substantial burdens on the filing of an alien relative petition for a new spouse within five years of the petitioner receiving permanent residence.

When the I-130 alien relative petition is approved, for foreign national beneficiaries outside the United States, the petition moves to the National Visa Center for consular processing. For eligibility to adjust status inside the United States, see below. Consular processing of spouses of U.S. citizens, considered immediate relatives within the immigration system, is prioritized over most family-based categories, specifically all those categories that are on the priority wait-list, such as adult children, spouses, and minor children of permanent residents, married children, and siblings of U.S. citizens.

When the NVC determines the file is complete with all the required documents, the NVC so indicates and is put in line with the appropriate U.S. Consulate to schedule the applicant’s visa interview.

Spouses of permanent residents begin the NVC processing when their priority date is close to becoming current.

Consular Processing

For foreign spouses living outside the U.S., consular processing is the pathway to obtain a permanent resident immigrant visa. The final interview occurs at a U.S. embassy or consulate in the spouse’s home country or another designated location.

Consular processing is also required for most foreign nationals who entered the United States without inspection, including spouses of permanent residents who are out of status, notwithstanding how they entered the United States. For those who are thinking of leaving the United States to attend a permanent resident interview at a U.S. consulate, it is important to speak to an attorney prior to leaving the U.S., as a departure can trigger a ground of inadmissibility. It is important to deal with this long before departure.

Applicants will first be instructed by the National Visa Center, which collects information for the permanent residence, and when complete, will have the particular U.S. Consulate schedule the interview. The NVC informs when and where to pay the appropriate fees after the alien relative petition has been approved by USCIS. The National Visa Center (NVC) will assign a case number for the petition after USCIS approves it and will instruct the applicant to complete Form DS-261, Choice of Address and Agent.

The National Visa Center now performs all initial processing for the immigrant visa. Inasmuch as the Department of State is a different agency from the USCIS, it requires resubmission of many documents and an extensive form to be completed online. It requires documents, including:

The marriage certificate
Proof of termination of any prior marriages
A valid passport for the beneficiary
Evidence of status for the U.S. citizen or permanent resident
Evidence of U.S. domicile for the petitioner.
A birth certificate for the beneficiary
An affidavit of support for the petitioner, as well as supporting documents including Federal taxes, W-2 statements, 1099 forms, if applicable, and several pay stubs or proof of current income.

When the case is transferred to a U.S. Consulate, the applicant must schedule and attend a medical exam with a designated physician. In addition, police clearances are required for every location outside the U.S. at which the foreign national has resided for greater than six months.

The consular officer conducts a visa interview to assess the relationship’s legitimacy and the foreign spouse’s eligibility. Questions may cover how the couple met, details of their wedding, or their daily life together. If a criminal issue exists, or prior negative immigration history from the U.S., these will certainly be questioned. Documentation from the criminal interface is also required.

If approved, the foreign spouse must pay a fee for the green card to be issued and will receive an immigrant visa in their passport, allowing entry to the U.S. Upon entry into the United States, the foreign national will be immediately a lawful permanent resident and will thereafter receive a green card.

Adjustment of Status

If the foreign spouse is already in the U.S. on a valid nonimmigrant visa (e.g., a tourist or student visa), they may be eligible to adjust status to become a lawful permanent resident without leaving the country if married to a U.S. citizen.

The spouse of a U.S. citizen only needs to have entered the United States legally to be eligible to adjust status. The spouse of a permanent resident must have entered legally and be in a valid legal status when the I-130 priority date is current to be eligible to adjust status.

The adjustment of status process involves filing Form I-485, Application to Register Permanent Residence or Adjust Status, with the USCIS. Key requirements include:

Supporting documents, such as a birth certificate
Affidavit of support from the petitioner demonstrating income of 125% of the poverty guidelines and supporting documents, including Federal tax return, W-2, and pay stubs.
Potentially a co-sponsoring affidavit of support and supporting documents if the sponsor is unable to demonstrate financial capability.
An advance parole document (Form I-131) if the spouse needs to travel abroad during processing, to avoid abandoning the application.

There is no minimum marriage length to get a green card, but all marriages require evidence of good faith, and that evidence may be more difficult to obtain for newer marriages.

The USCIS now schedules a green card interview with an immigration officer for every case to verify the marriage’s authenticity and permanent residence eligibility. The couple should provide detailed evidence, such as joint bank accounts, taxes, health insurance, rental receipts and leases, and other comingled assets, as well as photos, to demonstrate their relationship.

If approved, the foreign spouse receives a permanent resident card, granting permanent residency status. This process is often faster than consular processing but requires the spouse to remain in the United States until approval, unless a valid travel document was issued.

Supporting Documents and Evidence

To apply for a marriage-based green card, you will need to provide various supporting documents and evidence to prove the legitimacy of your marriage and eligibility for permanent residence. These documents may include:

A valid marriage certificate to confirm the legal union.
Birth certificates for the foreign national spouse and evidence of U.S. citizenship or permanent residence for the petitioner..
Proof of income and employment, such as joint bank account statements and tax returns, to demonstrate financial stability.
Evidence of a bona fide marriage, such as photos, correspondence, and affidavits from friends and family, to show the relationship is genuine.
The passport used for entry, and potentially previous visas or immigration documents, to verify lawful entry and status.
A medical examination report and vaccination records from a USCIS-approved physician to ensure health requirements are met.
Proof of termination of any previous marriages, such as divorce or death certificates, to confirm eligibility for marriage.

The U.S. government is closely scrutinizing grounds of inadmissibility, so prior immigration violations and/or interface with the criminal justice system within or outside the United States must be closely examined to determine if the event may stymie the grant of permanent residence.

It is essential to ensure that all documents are genuine, complete, and meet the requirements of U.S. Citizenship and Immigration Services (USCIS). Properly preparing these supporting documents can significantly impact the success of your green card application.

The Green Card Application Process

The green card application process for spouses of U.S. citizens or lawful permanent residents involves several steps:

Filing the Petition: The U.S. citizen or lawful permanent resident spouse must file a Petition for Alien Relative (Form I-130) with USCIS to establish the marital relationship.
Waiting for Approval: The petition is reviewed and approved by USCIS, which may take several months. During this time, USCIS may request additional evidence or schedule an interview to verify the relationship.
Applying for a Green Card: For the spouse of a U.S. citizen, you may apply for permanent residence simultaneously with the alien relative petition. The spouse of a permanent resident must first file the alien relative petition and wait for it to become current in order to file for permanent residence. As of this date, stand-alone I-130s are taking a considerable amount of time to process. Adjustment of status is possible if the foreign spouse is in the United States with a legal entry; otherwise, permanent residence is done through consular processing at a U.S. consulate if the spouse is outside the country or entered the United States without inspection or is married to a permanent resident. In the latter case, a waiver of inadmissibility may be required. Be sure to speak to a competent counsel before travelling overseas for a Consular interview.
Attending a Visa Interview: The foreign spouse will be required to attend a visa interview at a U.S. embassy or consulate, where they will be asked questions about their relationship and background. This step is crucial for assessing the legitimacy of the marriage.
Receiving the Green Card: If the application is approved, the foreign spouse will receive a conditional or permanent green card, depending on the length of their marriage. A conditional green card is issued if the marriage is less than two years old, and the couple must later apply to remove the conditions.

This structured process ensures that the foreign spouse can legally reside in the U.S. as a permanent resident, paving the way for a stable and secure future together.

The Affidavit of Support

A critical component of the marriage-based green card process is the affidavit of support, Form I-864, filed by the U.S. citizen spouse. This legally enforceable contract demonstrates that the citizen spouse can financially support the foreign spouse, preventing them from becoming a public charge. The U.S. citizen must meet the federal poverty guidelines, which vary by household size and are updated annually on the USCIS website. As a U.S. sponsor, you must maintain your principal residence in the United States, which is required to file the Affidavit of Support.

The affidavit of support requires:

Proof of income, such as tax returns or pay stubs.
Evidence of U.S. citizenship or lawful permanent resident status.
Details about the foreign spouse and any minor children included in the application.

Errors in the affidavit of support can lead to delays or denials, so accuracy is essential. An immigration lawyer can assist in ensuring the form meets USCIS standards, particularly for complex cases involving previous marriages or financial constraints.

Preparing for the Green Card Interview

The green card interview is a pivotal step in the marriage green card process, whether through consular processing or adjustment of status. Conducted by an immigration officer or consular officer, the interview verifies the bona fide marriage and the foreign spouse’s eligibility. USCIS closely examines the authenticity of the marriage to ensure it has not been entered into solely for immigration purposes. The Officer will also exam grounds of inadmissibility to assure that none are applicable. Couples should prepare by:

Gathering supporting documents, such as marriage certificates, joint bank account statements, and photos.
Reviewing details of their relationship, including how they met, their wedding, and daily routines.
Be aware of how to answer common questions, such as “How did you meet?” or “What are your spouse’s date and place of birth and date and location of the marriage?”

The immigration officer may ask about discrepancies or request additional evidence to rule out suspected marriage fraud. Being honest, consistent, and well-prepared is crucial for a successful outcome. Individuals with prior negative immigration history, criminal history, or previous visa issues should consult an immigration attorney to address potential complexities.

After Receiving a Green Card

Upon approval, the foreign spouse becomes a green card holder, granting lawful permanent resident status through marriage green cards. This status allows them to live, work (with employment authorization), and access some benefits in the U.S. However, maintaining permanent residency involves responsibilities:

The permanent resident card must be renewed every 10 years, before the expiration date.
If the green card is a conditional green card (issued for marriages less than two years old), the couple must file Form I-751 to remove the conditional status within 90 days of the card’s expiration.
The foreign spouse must maintain a U.S. residence and avoid extended absences that could jeopardize their status. A permanent green card is valid for ten years and does not require filing a joint petition for removal of conditions.

Failure to comply with these terms may result in loss of permanent resident status. An immigration attorney can guide green card holders through renewal or removal of conditions to ensure compliance.

Traveling Outside the U.S. as a Green Card Holder

Green card holders must maintain their permanent residency status by residing primarily in the U.S. Extended absences (typically over six months) may raise concerns with U.S. Border Protection. To travel abroad for longer periods, the foreign spouse should apply for a re-entry permit (Form I-131) before departure. Additional considerations include:

Carrying a valid passport and permanent resident card for re-entry.
Ensuring compliance with USCIS rules to avoid abandoning permanent residency.
Consulting an immigration lawyer for trips exceeding one year, as additional documentation may be required.

Proper planning ensures the lawful permanent resident spouse can travel without risking their status or eligibility for future citizenship.

Working in the U.S. as a Green Card Holder

As a green card holder, you are authorized to live and work in the United States permanently. You can:

Apply for a Social Security number and obtain a driver’s license, which are essential for employment and daily life.
Work for any employer in the United States without needing a visa or sponsorship, providing flexibility and opportunities in the job market.
Start your own business or become self-employed, allowing for entrepreneurial ventures.
Travel in and out of the United States, as long as you do not abandon your residence, ensuring you can visit family and friends abroad.
Apply for U.S. citizenship after meeting the eligibility requirements, which include continuous residence and good moral character.

It is essential to note that green card holders must comply with the terms of their status, including reporting address changes and renewing their green card every 10 years. Failure to comply may result in the loss of permanent resident status. By adhering to these requirements, green card holders can enjoy the benefits and opportunities of living in the United States while working towards full citizenship.

Path to Citizenship

After holding permanent resident status for at least three years (if married to a U.S. citizen), the foreign spouse may be eligible to apply for U.S. citizenship through naturalization. The process involves filing Form N-400, Application for Naturalization, and meeting eligibility requirements, including:

Being at least 18 years old.
Demonstrating the ability to read, write, and speak English.
Exhibiting good moral character, with no significant criminal history.
Passing a civics test and interview with a USCIS immigration officer.

The foreign spouse must maintain continuous residence in the U.S. and comply with all immigration services requirements. An immigration attorney can help navigate complex cases, such as those involving previous visa issues or minor children included in the application. Successful naturalization results in a naturalization certificate, granting full U.S. citizenship.

Additional Considerations

Filing Fees: Each form (e.g., I-130, I-485, I-175, I-131, DS-260 260 and affidavit of support fee) has a filing fee, detailed on the USCIS or DOS website. Budgeting for these costs is essential.
Minor Children: If the foreign spouse has minor children, for immediate relatives, they are NOT included in the alien relative petition of U.S. citizens. All permanent resident applications in the U.S. or overseas require an individual application for each child and to demonstrate eligibility. Speak to counsel.
Suspected Marriage Fraud: USCIS takes suspected marriage fraud seriously. Couples should ensure all documentation and interview responses are truthful to avoid penalties.
Advance Parole Document: For adjustment of status applicants, an advance parole document affords travel abroad; without this document, a trip overseas will terminate the adjustment of status process.

Why Choose Oltarsh & Associates, P.C.?

Navigating the marriage visa for a U.S. citizen spouse or a permanent resident spouse can be complex, with intricate requirements and potential pitfalls. Oltarsh & Associates, P.C., a New York-based immigration law firm, specializes in marriage-based green card cases, including same-sex marriages and applications involving previous marriages or previous visa issues.

With decades of experience, our immigration attorneys guide couples through every step, from filing the petition for an alien relative to preparing for the green card interview. Contact us at (212) 944-9420 or visit our website to schedule a consultation and start your journey to permanent residency with confidence.

Navigating the Marriage Visa for a U.S. Citizen Spouse