A foreign national living in the United States can pursue the marriage-based green card process if married to a US citizen or Lawful Permanent Resident (LPR).
The first step in applying for a marriage-based green card is for the US Citizen or LPR to file the Form I-130, Petition for Alien Relative on behalf of the foreign national spouse. Form I-130 demonstrates that a valid relationship exists between the foreign national (beneficiary) and the US citizen or LPR spouse (petitioner). Approval of the Form I-130 acknowledges that a bona fide marriage exists between the beneficiary and petitioner.
If the foreign national is married to a US citizen, the Form I-485, Application to Adjust Status may be filed concurrently with the Form I-130. This is because there are no numerical limits on immediate relatives of US citizens to obtain a green card.
Marriage Between Foreign National and LPR
On the other hand, if the foreign national is married to an LPR:
- Form I-485 may not be filed concurrently with the Form I-130.
- The foreign national must wait to file the Form I-485 until a visa becomes available.
- A visa becomes available when the foreign national’s priority date (i.e., the date the Form I-130 is filed with USCIS) is current.
When establishing the priority date, the foreign national should look at the current month’s visa bulletin for the F2A preference category in the Dates for Filing Chart for family-sponsored filings. Only applicants with a priority date earlier than the listed date for the F2A preference category may file their Form I-485.
Evidence Needed to Establish Bona Fide Marriage
To establish that a bona fide marriage exists between the beneficiary and petitioner, EIG recommends the following evidence (if available) be provided with the Form I-130:
- Marriage certificate
- Lease agreement or deed in both spouses’ names
- Joint bank statements (checking and/or savings accounts)
- Utility bills (e.g., gas, electric, cable) that lists both spouses’ names
- Evidence that one spouse has made the other a beneficiary on his/her life or health insurance
- Auto registration that shows joint ownership
- Joint income tax returns
- Wills, trusts, or power of attorney, naming both spouses
- Photographs of the couple, especially at the wedding with family, as well as trips taken together before the marriage, during the wedding, and after the wedding
- Letters and messages between the couple before the marriage
- Birth certificates of the children (if any)
Conditional Permanent Residence
If the couple has been married for less than two years when the foreign national’s Form I-485 is approved, a conditional permanent residence card will be issued and valid for two years.
- A conditional resident has the same rights as a permanent resident, including the rights to travel in and out of the United States and accept employment without separately applying for work authorization.
- Conditional residency expires after two years. Within 90 days before the conditional green card expiration date, the couple must jointly file the Form I-751 to apply to remove the conditions of residence. Evidence needs to be included with Form I-751 that the marriage still exists and that the couple is genuinely establishing a life together.
Even if the marriage has ended after the foreign national has received the conditional green card, there are certain exceptions available that may allow him/her to still remove the conditions of residence and become a permanent legal resident.