Last updated on May 15th, 2019
One of the great advantages of marrying a United States citizen or permanent resident is that you can apply for a green card to become a resident of the United States yourself based on your marriage.
The United States is a strong supporter of keeping family members together, especially husband and wife, and this is why a green card based on marriage is possible.
Before you can apply for a green card, there are some additional steps you and your spouse must complete depending on whether you are in the United States, legally or illegally, and your spouse’s citizenship status.
Since the process can be a little different depending on you and your spouse’s status, we have outlined these differences below. Either way, the process begins when your spouse files Form I-130, Petition for Alien Relative, on your behalf.
How Does My Spouse File Form I-130?
Before you can apply for a green card, your spouse must file Form I-130 Petition for Alien Relative on your behalf.
Form I-130 can only be filed by a United States citizen or lawful permanent resident that wishes to establish that they have a qualifying relationship with their immigrating relative.
With this form, your spouse will be required to prove two things: his or her citizenship status and that you are spouses.
Proof of Citizenship Status
As stated above, one of the things your spouse will have to prove when filing Form I-130 is his or her citizenship status. If your spouse is a U.S. citizen, he or she can prove this by including one of the following:
- A copy of his or her birth certificate or naturalization certificate
- A copy of his or her Form FS-240 Report of Birth Abroad of a Citizen of the United States
- A copy of his or her valid passport or
- A statement for the U.S. Consulate or Embassy stating that he or she is a U.S. citizen and have a valid passport
If, on the other hand, your spouse is a lawful permanent resident, he or she may prove their status by including a copy of their permanent resident card.
Proof of a Qualifying Relationship
The second thing your spouse will have to prove when filing Form I-130 is that the two of you are actually legally married. Some evidence that your spouse may send include:
- A copy of your marriage certificate;
- Divorce decrees, if either of you were previously married
- A passport-style photo of him or her and a passport-style photo of you
- Form G-325A Biographic Information completed for each of you
Your spouse is also encouraged to include proof that your marriage is a real marriage.
This may include things that show you and your spouse own property or bank accounts jointly or affidavits from people that can attest to the legitimacy of your marriage.
USCIS would love to see this type of evidence because they are dedicated to cracking down on fake marriages and prosecuting the individuals that take advantage of the immigration process.
If you can provide USCIS with enough evidence that your marriage is real, they will be convinced and should approve your petition.
What Will Happen After My Spouse Files Form I-130 on my behalf?
Once USCIS has processed your Form I-130 petition, your next steps will depend on whether you are in the United States and whether your spouse is a U.S. citizen or legal permanent resident.
For example, if you are legally in the United States and your spouse is a U.S. citizen, you can actually submit your green card application, Form I-485, together with your Form I-130 petition.
We have outlined all the possible scenarios below, based on whether you are in or out of the United States at the time your Form I-130 is filed, so that you can have an idea of how and when you will be able to submit your green card application.
What if I Will Be In the United States Lawfully When My Spouse Files I-130?
If you are in the United States lawfully when your spouse files Form I-130 on your behalf, whether you are able to apply for your green card immediately or not depends on whether your spouse is a United States citizen or a lawful permanent resident.
My Spouse is a United States citizen
If you are currently in the United States lawfully and your spouse is a United States citizen, you may file Form I-485 Application to Register Permanent Residence or Adjust Status (the green card application) at the same time as Form I-130.
My Spouse is a Lawful Permanent Resident
If you are currently in the United States lawfully and your spouse is a permanent resident, you must wait until you receive the approval notice after your spouse files Form I-130.
You will then have to wait for a visa number to come available before you can submit your green card application. This is because USCIS limits the number of green cards it can issue to spouses of permanent residents each year.
For more information on this topic, you can read our article about the Visa Bulletin, or just take a look at this month’s most recent Visa Bulletin at the U.S. Department of State.
The date your spouse filed your Form I-130, called your Priority Date, will determine your place in line for a visa number. If you are still in the United States lawfully when the priority date becomes current, you can then file Form I-485.
I Will Be In United States Unlawfully When My Spouse Files I-130
If you are in the United States unlawfully when your spouse files the I-130 petition on your behalf, you will have to take some additional steps in order to ensure that you are not barred from getting a green card in the United States.
An unlawful stay of more than 6 months can result in a 3 year, 10 year, or permanent bar from the United States.
In order to apply for a green card, you will have to go through consular processing unless you entered the U.S. lawfully but overstayed or came under the visa waiver program.
You may have to undergo consular processing regardless of whether your spouse is a U.S. citizen or a permanent resident because, in general, immigrants that stay in the United States illegally are not eligible to obtain a green card.
In addition to consular processing, you may have to apply for an unlawful presence waiver.
Since unlawful stays are looked down on by USCIS, obtaining a green card may be a difficult process. The added factor of unlawful presence may complicate your immigration process a great deal.
If you have accrued unlawful presence in the U.S. it is best if you consult an immigration attorney so that you are aware of your options and possible solutions, if there are any.
I Will Not Be In The United States When My Spouse Files I-130
If you are not physically in the United States when your spouse files Form I-130, you must wait until USCIS approves the petition before you take any further action.
When USCIS approves your petition, the National Visa Center (NVC) will contact you to give you the next steps for applying for a green card.
The NVC will contact you immediately if your spouse is a U.S. citizen.
If, on the other hand, your spouse is a lawful permanent resident, the NVC will contact you when your priority date becomes current.
When NVC contacts you, they will instruct you to fill out Form DS-260, Online Immigrant Visa Application, which is the Immigrant Visa or green card application for immigrants applying outside the United States.
After the consulate receives your completed application they will schedule an interview for you at your local U.S. Embassy or consulate. At the interview, the consulate officer will ask you questions about your application and verify that you are indeed legally married.
The interview is another chance for USCIS to eliminate marriage fraud and this is why you should expect questions that will focus on your marriage.
If the officer decides to grant your petition on the spot, he will stamp your visa so that you can enter the United States immediately. Officers do not always make decisions during the interview.
It is quite possible that you will have to wait for a decision.
What Should I Include With My Green Card Application?
If you are filing Form I-485, the green card application, from inside the U.S., you’ll need to include several pieces of evidence:
- Evidence pertaining to your criminal history, if applicable
- A copy of your foreign birth certificate
- A copy of your immigrant visa, if applicable
- Two identical passport-style photos
- Form G-325A Biographic Information Sheet
- An Affidavit of Support (Form I-864) establishing that your spouse if financially responsible for taking care of you
- A copy of your I-130 petition or a copy of your approval notice
In addition to completely filling out your Form I-485 and signing the bottom, you also want to make sure you include the applicable filing fee.
If your application is ultimately approved, your green card will be mailed to the U.S. address on your application so make sure that it is correct.
If you file with an attorney, your green card and other notices may be mailed to your attorney.
What Happens After I File My Green Card Application?
After you file your green card application, you will be required to attend a biometrics appointment, obtain a medical examination, and you may be asked to attend an interview with a USCIS officer.
USCIS will notify you of when and where your biometrics appointment will take place and give you information about your interview if you are required to have one.
How Long Will The Entire Process Take?
The length of the entire process varies because there are many factors involved. It can take months or even a year before you receive your green card and sometimes longer.
All of the factors mentioned above–processing times, delays, the effect of unlawful stays, location when you file–can have an impact on how long your green process takes.