If you are a U.S. citizen or lawful permanent resident (“LPR,” also known informally as a “green card holder”), you can petition for your spouse to become an LPR. (Please see the Family Immigration page for general information on adjustments of status.) Lawful permanent residency is valid for a period of 10 years. In addition, once your spouse is a permanent resident for three years, s/he may then apply to naturalize as a U.S. citizen.
* If your marriage is less than two years old, the approved residency is considered “conditional.” In this case, your immigrant spouse will hold a green card that is valid for two, rather than 10 years. Before this conditional residency expires, the immigrant spouse must submit a request to remove this condition. Once it approves the request, USCIS will grant permanent residency for 10 years. It is extremely important to file this petition on time as failure to do so may result in your spouse being placed in removal (deportation) proceedings. Once in removal proceedings, you can still fight your case in immigration court, but it will be a much more complicated and a lengthy process.
Does conditional residency count toward naturalization / U.S. citizenship requirements?
Yes, those two years of conditional residency count toward the three years of lawful permanent residency your immigrant spouse must have before s/he can apply for naturalization. At the end of the two-year conditional period, if you are not still married, the immigrant spouse must file the petition on his/her own and explain why s/he is no longer married. You should consult with attorney Camille Cook immediately if you are in this situation.
How is the process different if I file for my spouse as a U.S. citizen vs. as a Lawful Permanent Resident?
Filing as a U.S. Citizen
If you are a U.S. citizen, your spouse is considered an “immediate relative”. After marriage, you may apply for your immigrant spouse by submitting the required forms and documentation to USCIS. Because you are a U.S. citizen, your spouse may be able to apply, at the same time, for an adjustment of status and work permit. After USCIS receives your application, it schedules an interview with both of you to determine your spouse’s eligibility for a green card.
Filing as a Lawful Permanent Resident (“LPR”)
Like U.S. citizens, if you have a “green card” or “mica” you can also petition for your immigrant spouse to become an LPR. However, the time that this takes is much longer than the petition process for U.S. citizens. This is because there is a cap placed every year on the number of immigrant visas available for spouses of LPRs. This cap is based on the country where your spouse is a citizen.
As a green card holder, you may not file an Adjustment of Status application for your immigrant spouse until a visa becomes available for his/her preference category. Only after the visa becomes available can you apply for your spouse’s Adjustment of Status and work permit. Many spouses of green card holders will not be eligible to adjust status in the U.S. They may need to obtain an immigrant visa by consular processing along with a waiver for any unlawful presence they may have accumulated while living in the U.S. You should consult attorney Camille Cook before filing an adjustment of status application.
What forms are required to file for my spouse?
The forms you will use are:
- I-130 (“Petition for Alien Relative”)
- This form establishes the spousal, or marital, relationship between you and your spouse. The approval of this petition means that USCIS has determined that your marriage is bona fide and legally valid.
- I-485 (“Application to Register Permanent Residence or Adjust Status”)
- Your spouse must submit this form to apply to adjust his or her status to lawful permanent resident.
- I-864 (“Affidavit of Support”)—no filing fee if filed with USCIS
- You must submit this form to show that, as a lawful permanent resident in the U.S., your immigrant spouse will not have to rely on public benefits. As the petitioner, you must complete this form. If you do not meet the income guidelines, your spouse must also have a co-sponsor.
- I-765 (“Application for Employment Authorization”)
- You use this form to apply for a work permit.
What are the requirements for Adjusting Status?
Proof That the Marriage Is Valid (or “Bona Fide”)
USCIS, formerly known as INS, takes very seriously the question of whether the marriage is a valid, or “bona fide” (meaning, “in good faith”). It requires documents that will prove that your marriage was not just for immigration-related purposes. Examples of such documentary evidence include photos showing the span of your relationship, and bills, contracts, or statements that show how you and your spouse share financial responsibilities.
Proof That You (or Another Relative) Can Act as Financial Sponsor for Your Immigrant Spouse
USCIS will not grant legal permanent residency (or a green card) to your immigrant spouse unless you can show that you (or, in some circumstances, another person) can financially support him or her. If you have questions about filling out this form, you should consult with attorney Camille Cook.
After USCIS receives the application and filing fees, you and your spouse will be called to appear at an interview at the local USCIS office. For most residents of the Central Valley, the interview will be in Fresno.
If my spouse and I are in a same-sex marriage, can my immigrant spouse still become an LPR?
Yes, as of July 1, 2013, immigration visa petitions filed on behalf of a same-sex spouse are reviewed in the same manner as those filed on behalf of an opposite-sex spouse. As long as all other immigration requirements are met, same-sex spouses are allowed the same immigration benefits as the opposite-sex spouses of U.S. citizens or LPRs. Attorney Camille Cook has handled several of these types of cases.
What if I filed a petition for my Spouse when I was an LPR, but now I am a U.S. citizen?
If you become a U.S. citizen while your immigrant spouse is waiting for his/her visa, you can upgrade your spouse’s visa category and avoid the waiting list. You must notify the appropriate USCIS office of the change or the National Visa Center.
If my immigrant spouse has a Criminal Record, can s/he still become an LPR?
It depends on the circumstances of what happened. The best thing to do is to contact attorney Camille Cook to determine how your criminal history may affect your case. Attorney Camille Cook is an expert in analyzing the effects of criminal issues on immigration cases.