Obtaining a Green Card through marriage to a US Citizen is one of the fastest ways to obtain Legal Permanent Resident (LPR) status in the United States.

A B-1 visitor visa, B-2 visitor visa, B visitor visa status or entry to the US in B visitor status under the Visa Waiver Program does not permit immigrant intent. That is, the foreign spouse may not enter the US as a visitor when his or her actual intent is to immigrate, i.e., to file the marriage-based green card application soon after entry to the US. In fact, a Green Card application may be denied for that reason—pre-conceived immigrant intent—alone.

The choice of processing of a Green Card through Marriage application depends on various factors, such as immigration history, eligibility under various applicable laws, and a couple’s particular personal or professional circumstances.

Green Card Through Marriage Processes

1. Adjustment of Status: if the couple is already married and residing in the US, they can submit their application materials to the USCIS office that has jurisdiction over their case to obtain a Green Card through Marriage. Or,
2. Immigrant Visa Processing (also known as “consular processing” or “IV Processing”): if the couple is already married, but resides abroad; or the foreign spouse still resides abroad and is not in possession of a US nonimmigrant or temporary visa that would permit immigrant intent, then they may submit an Immigrant Visa application to obtain a Green Card through marriage. Immigrant intent means the intent to live in the US permanently, as opposed to visiting the US temporarily.

Adjustment of status tends to be relatively quick, i.e., approximately 4-8 months. However, certain factors can always create delays in an application. Such factors include delay in FBI security background check, USCIS case backlogs, complicated factors in the applicant’s personal immigration history, changing addresses without informing USCIS, postponing scheduled appointments, etc.

Immigrant Visa Processing, on the other hand, averages 12 months (this is subject to change at any time) during which the foreign spouse may have difficulty visiting the US if the couple does not already live together abroad. Very few couples volunteer to go this route, since the length of possible separation can be lengthy. However, such couples may have an alternative to reunite in less than 12 months, i.e., the K-3 visa for spouses of US citizens.

Green Card Through Marriage: Conditional Resident Status vs. Permanent Resident Status

In an effort to reduce marriage fraud, current US immigration law places a condition on the initial length of a foreign spouse’s resident status once s/he has obtained a Green Card through marriage.

For example, if the marriage occurred more than 2 years prior to the date the Green Card through marriage application was approved, then the US Green Card status will be permanent upon approval of the Green Card through marriage petition. The Green Card itself is limited to 10 years, but it can be renewed (Legal Permanent Resident status does not expire with the expiration of the Green Card).

However, if the marriage occurred less than 2 years prior to the Green Card through marriage approval, then the foreign spouse’s Green Card will be conditional and valid for only 2 years. In this instance, the expiration of the Conditional Green Card triggers the expiration of Conditional Legal Permanent Resident status, which could make the non-US spouse deportable. Therefore, filing a timely petition to have the 2-year condition removed is critical.

Scenario 1: Your marriage occurred April 2, 2006, and your Green Card through marriage was approved January 2, 2009. Length of marriage at the time of approval was more than 2 years. Resident status will be permanent; no condition will be imposed. The Green Card will be valid for 10 years.

Scenario 2: Your marriage occurred April 2, 2008, and your Green Card through marriage was approved October 1, 2008. Length of marriage at the time of approval was 6 months. Resident status is conditional for 2 years and expires October 1, 2010. The couple must file a joint petition to remove the conditions on resident status during the 90-day window leading up to the October 1, 2010 expiration date of conditional residence. In other words, your joint petition must arrive at the appropriate USCIS office between July 1, 2010 and October 1, 2010.

Can I file the Removal of Condition petition before the 90-day window?

If the couple divorces during the 2-year conditional period, the foreign spouse can submit a waiver of the requirement for a joint petition at any time during the 2 years. However, the applicant must still prove to the USCIS that the marriage was bona fide (real) up until it began to deteriorate. (Note: living separately does not allow you to file sooner, and you must still file a joint petition with your spouse).