Family-Based and Marriage-Based Green Cards

Family-based immigrant petitions are filed by either U.S. citizens or permanent residents. The term immediate relative applies to limited relatives of U.S. citizens, including spouses, parents, and children. The term preference relative applies to certain other relatives of U.S. citizens and permanent residents. Preference relatives include: married and unmarried sons and/or daughters (over 21) of U.S. citizens; brothers and/or sisters of U.S. citizens. Also included as preference relatives are: spouses, minor children, and unmarried sons and/or daughters (over 21) of U.S. permanent residents. Preference relatives cannot obtain permanent residence until their priority dates are current.

Immediate relatives do not face waiting times for visa availability. Preference relatives often face very long waiting times, due to strict annual limits on permanent immigration benefits. The length of the wait depends upon which family preference category is appropriate, as well as the country of origin.

If you are married to a U.S. citizen, you may qualify for a marriage-based green card. The rules surrounding marriage and green cards are detailed and complex, and largely depend upon whether the marriage was to a citizen or legal permanent resident and if they entered the country legally.

Married to a U.S. Citizen
The husband or wife of a U.S. citizen is considered an “immediate relative” by law which means they are not held against any quota restrictions for receiving green cards via marriage.
If a divorce occurs before the 2 year period ends, the foreign-born spouse is advised to file Form I-751 in order to apply for a “good faith marriage waiver”. Unmarried children under the age of 21 and parents of U.S. citizens (over 21) may apply for a green card as an immediate relative.

Married to a Permanent Resident
In relation to green card applications based on marriages to citizens, there are more who fall into the category of marriages to U.S. permanent residents than married to a citizen. For that reason, the demand is often very high. As there are some risks involved in getting a green card by marriage application, our immigration attorneys review all cases very carefully to ensure a successful result.

Although getting a green card through marriage can often be the easiest way to obtain residency for a non-U.S. citizen, approval is not automatic. U.S. citizens applying for a fiancée visa or marriage green card must be aware that immigration officials will scrutinize their applications to ensure that the marriage is legitimate and bona fide, and not for the sole purpose of gaining immigration benefits.

The citizen and the foreign spouse must prove that the marriage is bona fide. If the citizen and foreign spouse have been married less than 2 years at the time the spouse becomes a permanent resident, a conditional 2-year green card will be issued.

K-1 Fiancé(e) Visa
The K-1 fiancé(e) visa is a nonimmigrant classification of visa that is designed for the foreign-born fiancé(e)s of U.S. citizens. It gives those foreign fiancé(e)s the opportunity to come to the U.S. with the intention of marrying their U.S. citizen fiancé(e)s who are sponsoring their visas.

The K-1 visa provides 90 days for the marriage to take place. After that, the foreign fiancé(e) can apply for an adjustment of status with the USCIS in order to become a Lawful Permanent Resident (LPR) and receive a green card. The K-1 visa also allows for any dependents of the foreign fiancé(e) to come to the U.S. under K-2 visa status. Due to the fact that the primary purpose of this visa class is for eventual permanent immigration, applicants will need to fulfill some requirements usually associated with an immigrant visa.

K-1 Visa Denial Reasons
There are a few reasons for why your K-1 visa may be denied. One of the more common and mundane reasons is simply because there was incorrect, incomplete, or inconsistent information on the I-129F. In this case, you can simply correct the mistake and refile the petition with a new fee. the best way to avoid this delay is to have an immigration attorney review your petition before filing.

Another reason why your visa might be denied is if the immigration officer at the U.S. Consulate or Embassy is not convinced of the legitimacy of your engagement. Unfortunately, this can easily happen if there has been a high number of fraudulent applicants coming from your particular country.

Marriage-Based Green Card Denial
If you get your green card by marriage denied, the USICIS likely included the reasoning for the denial in the letter. However, if you wish to avoid a denial, here are some of the common reasons it may occur.
Your green card marriage was not seen as bona fide. For the most part, if your marriage is legitimate and you and your spouse were not married for the sole purpose of obtaining a green card, you should not have to worry about this. However, if this is the case, you very well may experience obstacles in the interview process.
Your history caused issues. This can happen if you have a problematic criminal background or if you have had a history of violating your immigration status in the past. If you have ever been considered “out of status”, that may preclude you from getting a green card by marriage.
There were errors on your petition. It doesn’t matter whether there is information that is inconsistent, incomplete, or incorrect, it all causes problems on your petition. However, in these cases, the USCIS will often simply reject the petition rather than deny it. A rejection means that it failed an initial phase evaluating whether or not all of the information was present and accurate. In these cases, you can often simply correct the mistake and refile the petition with a new filing fee.
If your marriage-based green card petition is denied, the denial letter should include instructions for appealing the decision if that is your decision. If you choose to do so, be sure to have an immigration attorney helping you, as the appeals process is a delicate legal issue.

What Happens After Marriage?
Once the marriage has taken place, your new spouse is able to apply for Adjustment of Status in order for him/her to work and live permanently in the country, effectively finishing the K-1 visa process
K-1 and K-2 visa holders may file an application for employment authorization (EAD). It’s important to note that if you file the application prior to filing the Adjustment of Status, then your EAD will expire within the 90-day window (when K-1 expires). For that reason, it’s advised to apply afterward.

Q.Is there any way to bring the foreign national spouse to the U.S. any earlier, while this process is going on?
A. A K-3 visa allows a foreign national spouse waiting outside the U.S. for approval of the I-130 petition to enter the U.S. while waiting. However, the need to demonstrate that the I-130 has already been filed, along with the relatively small difference in remaining processing time between the I-130 and the K-3 petition at that point and other inconveniences once the foreign national spouse reaches the U.S. often lead to a decision that this visa is not worth the added expense.

Q.What is the process where the foreign national spouse is abroad and the couple wants to get married abroad?
A. A K-3 visa allows a foreign national spouse waiting outside the U.S. for approval of the I-130 petition to enter the U.S. while waiting. However, the need to demonstrate that the I-130 has already been filed, along with the relatively small difference in remaining processing time between the I-130 and the K-3 petition at that point and other inconveniences once the foreign national spouse reaches the U.S. often lead to a decision that this visa is not worth the added expense. A: The process is slightly more complex where the marriage occurs overseas. The U.S. Citizen Spouse will need to file an Immigrant Petition for Alien Relative (the first part of the two-part process described above) with USCIS. Once this is approved, the U.S. State Department will be notified and as separate process will begin for the spouse residing abroad to process through a U.S. embassy or consulate in their home country.

Once interviewed at the embassy or consulate, a foreign national spouse approved by the post for an immigrant visa is given a set of documents which can be used to enter the U.S. as a permanent resident. This process can be very time consuming, taking in most cases anywhere from ten to eighteen months. During this time, it will be extremely difficult for the foreign national spouse to enter the U.S. to visit – it isn’t easy to convince interviewing officers of their intent to visit briefly when the computer shows a permanent residence application pending.