Marriage Based Green Card: The Definitive Guide (2023)

First and foremost you should familiarize yourself with what a green card is. You should know the benefits and limitations of a green card, and how it is different from US citizenship.

What is a Green Card?

• A green card is another way to refer to lawful permanent resident status. It is commonly called a green card because the physical card you receive from the government when you become a lawful permanent resident is green.
• If you have a green card, you must reside in the United States. If you move to another country, you will abandon your lawful permanent resident status and need to re apply.
• A green card is not the same as US citizenship. You will not get a US passport, and will maintain your status as a citizen of your home country while you are residing permanently in the United States.
• For this reason, it is important to only apply for a green card when you are ready to move and to live permanently in the US. You should not apply for a green card if you want to live in another country and visit the US regularly.

Benefits of Having a Green Card

• Having lawful permanent resident status allows you to live and work in the US indefinitely. You must renew your green card every 10 years. If you don’t already have a social security number, you will receive one that you can use to pay taxes and secure employment.
• Lawful permanent resident status provides a pathway to citizenship. Simply residing in the US with your green card for the required period of time will allow you to apply to become a US citizen.
• With a green card, you can travel freely in and out of the US for up to 6 months at a time without making any special requests. You can travel for longer periods but should take steps beforehand to ensure you do not abandon your status.
• Once you become a lawful permanent resident, you can apply for both minor and adult children to immigrate to the United States.

The  most important question you should now ask yourself is whether you should apply for adjustment of status from within the US, or consular processing at a US embassy abroad.

This will be the single biggest determining factor in how long your application takes to process and whether you can live together in the US as a couple while waiting for the green card to be approved.

Fortunately, this is a straightforward question to answer that we will cover here.

Adjustment of Status: Spouse Present in the US

• If your spouse is physically present in the US when you decide to move forward and apply for a green card, you can file for adjustment of status.
• Typically, you can apply for an adjustment of status when the immigrant spouse is in the US on a tourist, student, or temporary work visa. It is also possible to obtain a green card through adjustment of status if the immigrant spouse entered the US on any type of visa and subsequently overstayed, even for an extended period.
• It is important to note that you can not file an application while your spouse is abroad then have them come to the US to adjust status – they will be rejected at customs when trying to enter the United States and need to return to their home country.

Consular Processing: Spouse Abroad

• If your spouse is abroad when you start the process of applying for a green card, you will need to move forward with consular processing.
• Consular processing involves multiple steps. It begins with the filing of Form I-130, which initiates the case with the US Citizenship and Immigration Service (USCIS). Once this initial step is approved, the case progresses to another agency known as the National Visa Center (NVC). The NVC’s role is to scrutinize additional information and documents to ensure that an immigration officer will have all the necessary documentation to approve your case when it is scheduled for an interview at the US embassy abroad.
• Upon the NVC’s approval of your forms and supporting documents, you will be placed in line for an interview, which the immigrant spouse will attend alone. Following the interview, a visa will be issued, permitting the immigrant spouse to travel to the US and obtain permanent resident status.
• Consular processing is a lengthier process, as the case moves back and forth between multiple agencies, increasing the potential for delays. Furthermore, some embassies are facing significant backlogs, resulting in applicants waiting for months and, in some instances, even years just to secure an interview.

Once you’ve determined whether you will pursue adjustment of status or consular processing, it’s essential to ensure you meet all other eligibility criteria.

Submitting an application and paying a filing fee, only to discover later that you fail to meet a fundamental requirement for approval, is something to avoid.

Fortunately, you can review a list of requirements to quickly assess your eligibility.

Marriage Requirement

• You need to be married in order to file a marriage based green card application. You can not apply in anticipation of being married, you must prove that you are married when you send off your initial forms and supporting documents.
• If you are engaged, and your spouse lives abroad, you can file for a fiance visa. The decision whether to pursue a fiance visa or get married first and file for a green card depends on many factors, including current processing times for a fiance visa as against an I-130 application. You should consult with an immigration attorney before deciding which process would be best for your situation.

Petitioner’s Status: Green Card Holder or US Citizen

• The petitioning spouse can either be a green card holder or a US citizen. In both scenarios, the petitioner can sponsor the immigrant spouse to obtain a green card. However, the process varies depending on the petitioner’s immigration status.
• If the petitioner is a green card holder, the process is lengthier, and the immigrant spouse may not have the same benefits if they are in the US and applying for an adjustment of status. The processing time for the I-130 is extended, and the immigrant spouse does not receive the same leniency for minor immigration violations, which would be automatically waived if the petitioner is a US citizen.

Immigrant Spouse’s Eligibility for a Green Card

• The immigrant spouse must be ‘admissible,’ a legal term in immigration law. This means that an immigrant must not be in violation of certain restrictions that can make him ineligible to get a green card.
• There are a number of problems that can cause the immigrant to be inadmissible and therefore ineligible for lawful permanent resident status. The most common problems are prior immigration fraud, conviction for disqualifying crimes, and having entered the US without a valid visa by crossing the border.
• While not an exhaustive list, you should contact an immigration attorney to discuss your situation if you believe you have any of the following issues:
  • You have a physical or mental disorder
  • You are or have been a drug abuser or addict
  • You are or previously were a drug trafficker 
  • You have been arrested, charged, or convicted of a crime
  • You have previously violated US immigration law
  • You have taken public assistance in the US
• Some of these issues can be resolved by applying for a waiver or may be waived automatically, but if you think you might have an issue with admissibility you should explore the details of your situation with an immigration attorney before filing an application.

Once you have determined how you are going to apply for a green card and made sure there isn’t anything that will cause you to be ineligible, the next step is completing the forms.

You need to identify which forms you need to complete, the purpose of each form, and then make sure that you complete them accurately and completely.

General Advice about Immigration Forms

• When filling out the forms, it’s crucial to remember that each question posed by immigration serves a specific purpose. Take each question seriously and maintain a detail-oriented approach. If you’re unsure about an answer, avoid leaving it blank. Instead, invest the effort to comprehend what immigration is seeking and provide a precise and comprehensive response.
• USCIS publishes instructions along with each form, and as you are completing the form, you can go through the instructions line by line to get an answer to common issues and to provide further explanation of what is intended by each question. You should go through those instructions at least once completely before starting to complete the forms for your application.It is vitally important that you have your complete name and current address correct on all of your forms. This address will be used to mail important notices about the status of your application, such as biometrics and interview appointment notices. You should ensure your name does not have any typos, as your work permit and green card will be issued with the name as entered on the forms.

The Necessary Forms and Common Issues

• The forms you will file vary depending on whether you are applying for a marriage based green card through adjustment of status or consular processing. While there is similar information required for both forms, it does vary slightly and you will file the required forms and different parts of the process. Below are the required forms, as well as some common issues that arise.

Adjustment of Status Forms

• • I-130
    • Form I-130 is completed and filed by the US citizen or permanent resident petitioner. It includes biographic information as well details about the application.
    • It is vitally important that you choose the USCIS field office which has jurisdiction over your case if you are pursuing an adjustment of status, and the consulate abroad which has jurisdiction over your application if you are pursuing consular processing. If you mix this up, it can severely delay your application.
  • I-130A
    • Form I-130A is a biographical form completed by the immigrant spouse. The form fills in the biographical gaps in the I-130, such as address and employment history.
  • I-485
    • Form I-485 is completed by the immigrant spouse. It serves as the immigrant spouse’s formal request to adjust to lawful permanent resident status. In addition to biographical information, it also includes a long series of eligibility questions that can complicate your case or make you ineligible for a green card depending on your response to them.
    • One of the questions in form I-485 asks whether you are subject to 245(i). This is a very limited situation that is applicable to immigrants who had an application on file before April 30, 2001. If you did not already have an application on file at that time, this does not apply to you.
  • I-765
    • Form I-765 is the immigrant spouse’s request for authorization to work in the United States while the adjustment of status application is in process.
    • You will be asked on form I-765 what category you are applying under. USCIS publishes a list of possible employment authorization categories that you can obtain and review. For a marriage based adjustment of status, you are category C09.
  • I-131
    • Form I-131 is used to request international travel authorization while the adjustment of status application is pending.
    • You will be asked for how long you want to travel and how many trips you plan to take. You should request at minimum 45 days, that your date of departure is as needed, and that you are requesting multiple trips. Even if you never end up traveling abroad while your case is pending, you should keep the option open in case of a family or other emergency.
  • I-864
    • The I-864 is completed by both the petitioner and the joint sponsor if necessary to show that they have sufficient means to financially support the immigrant spouse while the immigrant is a lawful permanent resident.

Consular Processing Forms

• • I-130
    • Form I-130 is completed and filed by the US citizen or permanent resident petitioner. It includes biographic information as well details about the application.
  • DS-260
    • The DS-260 is a form that you complete when your case makes it to the National Visa Center, and is a detailed biographic form primarily requiring information about the immigrant spouse.
  • I-864
    • The I-864 is completed by both the petitioner and the joint sponsor if necessary to show that they have sufficient means to financially support the immigrant spouse while the immigrant is a lawful permanent resident.

The Affidavit of Support

• The affidavit of support is a frequently challenging aspect of the application process, often leading to unnecessary delays or issues for applicants. It is crucial to correctly complete the affidavit of support form and ensure the financial sponsor possesses adequate income or assets to support the immigrant spouse. Failing to provide sufficient proof of income will result in a request to supplement your filing, potentially causing unwarranted delays. You can find the minimum financial requirements here: https://www.uscis.gov/i-864p.
• The US citizen or permanent resident petitioning spouse will always complete and include an affidavit of support. The petitioner submits the form and supplemental documents even if he doesn’t meet the income or asset requirements necessary to be the financial sponsor.
• For current income, you should use your income from your most recent federal form W2, if you still have the same job that you did at the time the W2 was issued. If your employment has changed, you should include your current annual income from your present position. You can prove your current income either with 6 months of your most recent pay stubs, or with a letter of employment from your employer stating your current annual salary.
• If the petitioning spouse’s income is below the necessary amount, you will need to have a joint sponsor file an additional form I-864. The joint sponsor must be a US citizen or permanent resident who is currently residing in the US. The joint sponsor does not need to be a family member of the petitioner spouse or the immigrant spouse, it can be a friend or co-worker, as long as it is someone who meets the necessary financial requirements.

Once you have completed the forms for your case, you need to make sure that you include all the required supporting documentation.

If you fail to include the necessary supporting documents with your application, you will end up having the application rejected, or you will receive a request for additional evidence, slowing down the process.

You should include all of the following types of documents. While the exact supporting documents vary case by case depending on your circumstances, this is a general list.

Identity Documents

• The most important documents are your identity documents. These include birth certificates, marriage certificates, the petitioner’s naturalization certificate, divorce decrees, passports, and passport style photos.
• You only need to submit copies of these documents to USCIS, you should never mail in an original identity document along with your application. You will bring original documents to your interview, but if you submit them with your initial application they will be lost.

Bona Fide Marriage Evidence

• You should submit evidence that you are in a ‘bona fide,’ or ‘real’ marriage to USCIS along with your application. You can choose to submit supplemental documents at your interview, but you should provide as much as you can along with your initial application to ensure you do not experience unnecessary delays.
• The most important documents to submit to prove to an immigration officer that you are in a real marriage are proof that you have jointly held financial resources, that you are living together, and that you have children in common.
• Secondary evidence that is helpful to submit includes statements from friends and family members attesting to your relationship, photos from throughout your relationship, and receipts from gifts or engagement and marriage jewelry.

Medical Exam

• You must submit a sealed medical exam to obtain a green card. You can choose to submit the sealed medical exam along with your initial filing, or at your interview. If you do not file the medical exam with your initial filing, you receive an I-693 deficiency notice instructing you to file it at a later date when requested by USCIS or at your interview.
• You must have the medical exam completed by an authorized physician, it can’t be done by just any family doctor. You can find a local authorized physician by entering your zip code at this USCIS website: https://www.uscis.gov/tools/find-a-civil-surgeon

Proof of Income and Tax Documents

• In order to obtain a marriage based green card, the immigrant must have an eligible financial sponsor. The sponsor completes a form I-864 affidavit of support and must provide supporting documentation to show that he or she meets the minimum financial requirements. You can prove you meet the minimum requirements by providing evidence of both income and assets.
• You must always provide your most recent years tax return, and it is advisable that you provide the most recent 3 years of tax returns. In addition, you need to provide any W2s, 1099s, or other income related tax documents that correspond to those tax returns. If you recently changed positions, you should include recent paystubs or a letter from your employer detailing your compensation.
• If the sponsor does not meet the income requirements, proof of assets can be included to supplement income. You must have 5 times the assets as income, so for every 1 dollar of income you would need 5 dollars of assets. Common proof of assets are bank statements, brokerage statements, mortgage statements, and property assessments.

Once you have successfully filed your application and it has had a preliminary review with USCIS or the NVC, you will have an interview with an immigration officer who will determine whether to grant your application.

The interview is often the most stressful part of the process. Similar to a job interview, it can cause undue stress even if you don’t anticipate any problems or issues.

You can learn how to prepare and what to expect to relieve that stress here.

Interview Location: In the US or at an Embassy

• Your interview can be either at a USCIS field office located in the United States, or at a US Embassy or Consulate abroad. This will depend on whether the immigrant is in the US and filed for adjustment of status, or is residing abroad and filed for consular processing.
• There are substantial differences between these two types of interviews. For example, for adjustment of status, you and your spouse go together to the interview and both answer questions from the immigration officer. If you are interviewed at an embassy abroad, only the immigrant spouse will be interviewed.
• When you complete form I-130 as part of your application, you will answer whether you are filing for adjustment of status or consular processing, and then the specific location where you are requesting your interview be conducted.
• The interview must take place where the immigrant spouse resides, you can not pick and choose your embassy or field office in the US. If the US embassy is closed for visa interviews in the country where the immigrant spouse resides, an embassy in a nearby country will be designated as the location for your interview.

Preparing for the Interview

• Your interview will typically be divided into three parts. First, the officer will review your forms with you. Second, the officer will ask you questions about your relationship. Third, the officer will ask you security and background eligibility questions.
• The officer conducting your interview will usually start your interview by reviewing some of the questions from the forms you filed. You should always review the forms you submitted to immigration before your interview. You don’t need to memorize the information, but you should be prepared to answer the questions, even if they don’t seem relevant or important. For example, the officer could ask for your address history for the last 5 years, and you should be ready to answer to a reasonable degree of accuracy.
• You should pay particular attention to the eligibility and security questions on your forms. The immigration officer handling your interview is looking to ensure that the immigrant spouse is allowed to obtain a green card, and will ask you the questions about your criminal history, immigration history, and other eligibility questions. You should review those questions on the forms you filed and be prepared to answer them again at your interview.
• The most discretionary aspect of the interview, and the part that causes the most concern for most immigrants, are the questions about your relationship. The immigration officer is asking questions about your relationship to make sure that you aren’t committing immigration fraud. The point here isn’t that the officer wants to know how ‘good’ your marriage is – this part of the interview is intended to make sure you are in a real marriage and not just getting married to get a green card.
• An officer will typically want to know the timeline of your relationship. You can expect the interviewer to ask how you met, when you started seeing each other romantically, when your relationship got serious, when you decided to get engaged, and when you got married. As the officer is going through this timeline they may ask you about why you got engaged, what you liked about each other, or how you felt about your wedding ceremony.
• The other types of questions an officer may ask are straightforward directed questions, such as how many bedrooms are in your house, whether you have met each other’s families and their names, or where your spouse works.

Communicating the Truth

• All of these questions are designed to ensure that you are in a legitimate relationship and you aren’t committing fraud. There is no ‘right’ or ‘wrong’ answer to these questions, the officer is just trying to gather information from you sufficient about your relationship to meet that threshold requirement.
• You should never feel like there is a right or wrong answer to the interview questions. If you are estranged from your spouse’s family for some reason, this isn’t something you need to try to hide from the immigration officer. You should be honest about these types of issues as they will not negatively affect the outcome of your case. The officer is not trying to determine how ‘good’ or ‘bad’ your relationship is, just whether or not you are committing immigration fraud.

Now that you have an understanding of the basic process of applying for a marriage based green card, you may have identified something that you think could pose a problem for your application.

While every possible hurdle can’t be listed here, these are some of the common issues and some information on how to approach them.

Criminal Charges and Convictions

• One of the most common problems that can seriously complicate, and in some cases even bar you from obtaining a green card are criminal charges and convictions. Regardless of whether the criminal conviction was in the US or abroad, it can have a severe negative impact on the prospect of obtaining permanent resident status.
• For any criminal charge, even if you were not convicted or the charge has since been expunged, you will need to provide a certified disposition to USCIS as part of your marriage based green card application. If you do not have a certified copy of the disposition and are unable to obtain one, you will need a letter or other form of proof from the criminal court that the record is unavailable.
• You should consult with an immigration attorney to determine whether your criminal history will present a problem for your green card application. It is too complicated and the stakes are too high for you to try to figure that out without help from a qualified professional.

Prior Petitions and Immigration History

• In the course of completing the forms in your case, you will be required to disclose whether the petitioner or beneficiary has previously filed a petition for a green card. While this usually doesn’t raise any red flags, it could become problematic for your case if, based on your history of previous petitions, it raises concerns that either you or your spouse may have been involved in or attempted immigration fraud in the past. You should be prepared to address the circumstances of any prior petition at your interview.
• Another issue that can arise is fraud in a prior visa application, such as a tourist or student visa. Typically, this will be as a result of obtaining that visa based on a misrepresentation. For example, if you obtained a tourist visa to seek medical treatment in the US, but you never suffered from any medical issue and that basis for requesting the visa was a lie. Depending on the nature of the misrepresentation, you may be able to argue that it would not have affected the decision of the government to approve or deny your visa, or you may be eligible for a waiver if it is determined that you did in fact previously commit immigration fraud.

Overstaying, EWI, and Complications

• If you have entered on a visa, such as a tourist or student visa, and then overstayed that visa, that violation will be waived automatically if your application for a green card is based on marriage to a US citizen. It is important to note that this only applies if your spouse is a US citizen, if your spouse is a green card holder, the overstay will not be waived automatically.
• If you entered the United States without inspection, then you will need to apply for a hardship waiver in order to obtain a green card. Entering without inspection means that you crossed the border, either as an adult or a child, and did not enter the US with a visa. The waiver process is lengthy, and even if you are successful you will not be eligible to obtain a green card through adjustment of status, you will need to go back to your home county for consular processing. If you are in this position, you should seek the help of an experienced immigration attorney.

J1 Home Residency Requirement

• Some, but not all J1 visas, are subject to a 2 year home residency requirement. You can typically determine whether you are subject to the 2 year home residency requirement by looking at your J1 visa, or by reviewing the paperwork associated with the visa approval and application. Most au pairs are not subject to the home residency requirement, but you should always check to be sure.
• If you are subject to the 2 year home residency requirement, you will need to reside in your home country for 2 years before you can obtain a green card. You can attempt to waive that requirement because of (1) a “statement of no objection” from your home country, (2) the interest of a U.S. government agency, (3) fear of persecution, or (4) exceptional hardship to a U.S. citizen or permanent resident spouse or child.

Expedited Processing

• The most frequent question we receive is whether there is a way to speed up or expedite the processing of a marriage based green card. Unfortunately, there is no way to pay an extra fee or to request premium processing to expedite your case.
• While you can not pay to expedite your case, US immigration authorities will expedite cases in a few exceptional circumstances. There are three categories under which your case could be expedited. (1) You will suffer severe financial loss if the case is not expedited. (2) The case must be expedite for an emergency or other humanitarian reason. (3) When there has been clear USCIS error in the processing of your application.
• The government reviews expedite requests on a case by case basis, and you must present a clear explanation backed with supporting evidence to justify your request.

Processing Time Estimates

• Processing times for a marriage based green card application vary widely. The most important factor affecting the processing time is whether you are filing using consular processing or adjustment of status. The second most important factor is where your interview will be held. Some embassies move quickly, others have lengthy backlogs. The same goes for USCIS field offices that handle interviews for adjustment of status applications. Some scheduled interviews very quickly, others that have a much larger caseload can take many months to finalize the application.
• After you file your application, you will receive a receipt from USCIS that will give you the date your application was received as well as the name of the processing center handling the petition. You can then use that information to pull the processing time for your case through the USCIS website. Processing times vary widely year by year, they can be as short as 7 months, and as long as 24 months depending on the current backlog of applications.

Qualifying as a Financial Sponsor

• In order to qualify to be a financial sponsor, you must be a US citizen or green card holder and you must be residing in the United States. The US citizen or green card holder petitioner will typically qualify, except in the circumstance that the petitioner is currently living abroad.
• If the petitioner does not qualify, either because he is living abroad or because his income does not meet the minimum requirements, then you will need to have a joint sponsor included in your application. This can be any friend or family member, as long as the joint sponsor is a US citizen or green card holder and is residing in the United States.
• The financial sponsor must meet minimum financial requirements based on his or her household size. You can see whether you meet the income requirements by reviewing the guidelines USCIS provides here: https://www.uscis.gov/i-864p. While you should provide your most recent 3 years of tax returns and W2s, immigration will review your current income from your present place of employment when making the determination whether you meet the income requirements.

Special Considerations for H1B

• H1B is a unique type of visa that allows you to have dual intent, meaning that you can maintain your H1B status while you have a pending marriage based green card application. You should communicate with your employer and let them know that you are applying for a marriage based green card so that they are aware of your plans. Additionally, it is possible to travel internationally on your H1B visa while you have an adjustment of status pending. You can do this even if your advance parole application that you file concurrently with the adjustment of status has not yet been approved.

International Travel while Adjustment of Status Pending

• Unless you have a dual intent visa which excludes most types of visas, you can not travel internationally after filing for a marriage based adjustment of status application until your advance parole application has been approved and you have proof in hand. You will need to present the advance parole document when re entering the US after traveling abroad. If you travel without an approved advance parole application, you will abandon your application, lose your filing fee, may be denied entry to the US, and will have to start again from scratch. Depending on your current status and immigration history, you could also be subject to severe immigration penalties.
• If you have filed for a marriage based adjustment of status application and an emergency arises that requires you to travel, such as a sick relative abroad, you can make an infopass appointment at your local USCIS field office to request emergency advance parole. If the immigration officer approves your request, the advance parole document can be issued that same day. This is limited only to emergency situations, not for something like going on a vacation.