WINTER 2019: How To Obtain Legal Permanent Residence and Citizenship Through Marriage In The U.S.

By Magaly Cheng, Esq. and Robin Nice, Esq.

One of the most sought-after U.S. immigration benefits is obtaining permanent resident status, a.k.a a “green card.” There are many paths to obtain this benefit, but one of the most common ways is through marriage to a U.S. Citizen (USC) or lawful permanent resident (LPR). After obtaining LPR status and remaining in that status for a certain number of years, the applicant may apply for U.S. citizenship. For that reason, in this article, we outline the various steps an immigrant spouse can take to obtain lawful permanent residency and ultimately citizenship.

Form I-130: Petition for Alien Relative

Overview and requirements: A USC or LPR can help certain family members immigrate to the United States. The USC or LPR must formally request, or petition, the U.S. government to allow the foreign national to apply for an immigration benefit (lawful permanent residence, also known as a “green card”). For that reason, the USC or LPR is called the petitioner and the foreign national relative is called the beneficiary. Immigrating through family is a two-step process. The first step is to file a family visa petition (Form I-130) with the United States Citizenship and Immigration Service (USCIS). The second step is to apply for adjustment of status by filing Form I-485 in the United States or obtaining an immigrant visa at a U.S. consulate in a foreign country. If the beneficiary is in the U.S., the beneficiary can file Form I-485 concurrently with the Form I-130. If the beneficiary is abroad, the visa petition must be approved before the beneficiary can apply for an immigrant visa at a U.S. consulate.

To file the visa petition (Form I-130), the following criteria must be met:

  • The petitioner and the beneficiary must have a qualifying family relationship, and
  • The petitioner must have the immigration status required for the petition – either US citizenship or LPR.

For a married couple, not only must the petitioner show that a legal marriage between the petitioner and the beneficiary exists, but the couple must also show that their marriage is bona fide (legitimate) and not fraudulently undertaken solely for the immigration benefit. During the last step of the process (when filing inside the U.S.), the petitioner and beneficiary will be required to appear for an interview. At that time, the couple should bring all of the evidence they have to show that they are truly a married couple, living together, and comingling their finances.

To apply for an immigrant visa or Form I-485, the applicant must prove that she is admissible. To do this, the applicant must ensure that no grounds of inadmissibility apply. Some of the most common grounds of inadmissibility include criminal conduct, fraud, and immigration violations. If any ground of inadmissibility applies, the applicant may still be able to immigrate if USCIS agrees to waive (forgive) the ground of inadmissibility.

In addition, the petitioner must sign an Affidavit of Support (Form I-864) with USCIS. An Affidavit of Support is necessary to prove that petitioner’s relative will not become a public charge (i.e., accept money from the government) and is therefore admissible to the United States. By signing this affidavit, the petitioner agrees to prevent the sponsored immigrant from collecting public benefits such as Medicaid, Temporary Assistance to Needy Families (TANF), and Supplemental Security Income (SSI). This is a contract between the petitioner, the immigrant relative, and the federal and state governments. A short summary of the most important provisions of the form are:

  • The Affidavit of Support will be executed as an enforceable contract.
  • The Affidavit of Support will be enforceable until the sponsored immigrant becomes a naturalized U.S. citizen, or has worked 40 qualifying quarters (approximately 10 years).
  • The Affidavit of Support remains in effect despite changed circumstances (such as divorce from the sponsored immigrant), and binds the sponsor(s) for an extended period of time.
  • The sponsor must be able to support all dependents plus the sponsored immigrant, and must earn an income of at least 125% of the federal poverty guidelines.
  • The petitioning relative must be a sponsor, whether or not he or she can meet the federal poverty guidelines.

Please note that some married couples must go through a third step if their marriage is less than two years old by the time the immigrant spouse obtains legal permanent residence by filing Form I-751 (See discussion below).

Potential Issues: If either party has been previously married to other individuals, it is imperative that all divorce decrees or other documents terminating the marriage are submitted to show that the current marriage is legally valid. If the divorce took place in a foreign country, the practitioner should obtain official copies of the divorce decree and an English translation to confirm the divorce was legally obtained. Beware of situations where there is a proxy party filing for divorce in a foreign country. Generally, the U.S. recognizes foreign marriages as valid if they are considered lawful and are recognized in the home country, but note that two common exceptions are proxy marriages and polygamous marriages.

Sometimes clients and their spouses separate or divorce in the midst of the I-130/I-485 process. If the couple has separated but not divorced, and the petitioning spouse is still supportive and cooperative, the I-130/I-485 process could continue successfully because the key issue is whether the marriage was entered into in good faith, not whether it has lasted over time. However, if the couple divorces before the I-130 is granted, the process cannot continue. If the couple has separated or divorced due to abuse (physical or psychological), it may be worth considering whether the Client could self-petition under the Violence Against Women Act, discussed below.

Tips: Always check the validity of the marriage certificate. Remind clients to keep a record of all of their bona fide documents. They should have copies of their lease agreements, mortgage statements, bank statements, joint tax returns, family photos, and any other documents that show they are a married couple. If the beneficiary has been to the U.S. in the past, always ask for their immigration history to make sure they did not violate their status by overstaying their visa or working without authorization.

Current Processing times: USCIS is taking anywhere from 6 to 8 months to adjudicate Form I-130. It is taking about 14 to 28 months to adjudicate Form I-485. Please note that if both forms are filed concurrently, the processing time will be about 14 - 28 months. Processing times at consulates may vary, but it typically takes between 6 months to 1 year to obtain the immigrant visa.

Form I-129F: Petition for Alien Fiancé(e)

Overview and requirements: USCs (not LPRs) may bring their fiancé(e)s to the U.S. using a “K-1” visa before getting married; they then marry in the U.S. A K-1 visa allows the fiancé(e) to enter the U.S. for a limited time and for a limited purpose. The fiancé(e) must marry the USC within 90 days of arrival.

To qualify for this visa, the couple must show that they have met at least once within the past two years, they intend to get married, and they are legally able to get married. The USC must file Form I-129F with USCIS. Once it is approved, the beneficiary will be able to apply for the K-1 visa at the U.S. consulate abroad. Once the visa is granted, the fiancé(e) can come to the U.S. to get married to the USC. After the marriage, the immigrant spouse must apply for adjustment of status to permanent residency (Form I-485) with USCIS. The couple, however, does not need to file Form I-130. In most cases, these marriages are typically less than two years old at the time of the adjustment interview, therefore, USCIS will grant the immigrant spouse conditional resident status for two years. Thus, the immigrant spouse will need to file Form I-751 prior to the expiration of their conditional status.

Potential Issues: If the marriage is arranged, and it is customary within that culture, USCIS may waive the requirement of having met within the past two years. The petitioner, however, must show that complying with this requirement would cause extreme hardship or would violate strict and long-established customs of the beneficiary’s foreign culture. Financial hardship alone would not be sufficient. USCIS reviews such requests on a case-by-case basis.

If the couple is not married within 90 days, the fiancé(e) may be required to leave the U.S. If the fiancé(e) fails to leave, she or he will be removed. The only exception is if the couple gets married after 90 days and the same petitioner then submits Form I-130, at which point the fiancé(e) may adjust using an approved I-130 instead of the fiancé(e) petition.

Current Processing times: 4 - 7 months.

Form I-751: Petition to Remove Conditions on Residence

Overview and requirements: Immigrants who are granted lawful residence through marriage to a USC or LPR before they have celebrated their second wedding anniversary will only be given U.S. residence for two years, a.k.a. conditional permanent residence status. Essentially, USCIS pays extra scrutiny to couples who have been together for ‘only’ two years. Please note that minors who obtain conditional residence through a parent’s marriage must also file Form I-751.

During the 3-month period before their ‘temporary’ or conditional ‘green card’ expires, immigrants must file Form I-751. If they fail to file this form and supporting documents during that three-month window, they risk being sent to immigration court for removal proceedings.

Immigrants must file the I-751 whether or not they are still married to their spouse. Most immigrants who are still married to the petitioning spouse will be able to file jointly, meaning both spouses will sign the form. There are four accepted reasons why an immigrant may file alone, without their spouse:

  1. Their spouse is deceased.
  2. They were divorced or had their marriage annulled.
  3. Their spouse was abusive or extremely cruel.
  4. For minor children who were granted conditional residence, the petitioner or the immigrant was abusive or extremely cruel to the child.
  5. Termination of the residence status and removal to the country of origin would result in an extreme hardship (including a hardship to the immigrant themselves). Note: this last category does not require that the marriage was entered in good faith but the other categories do require this.

Potential issues: For joint petitions and the first four exceptions for non-joint filings, it is critical that the immigrant demonstrate that the marriage was entered into in good faith. This means that regardless of what happened after the exact time of marriage, the immigrant must prove that their intention was to have some sort of marital life together, and that they didn’t enter the marriage only for immigration benefits. Although the immigrant’s intent at the time of the marriage’s inception is technically what matters, evidence of the ongoing relationship (when available) is the most helpful to demonstrate that intent. USCIS particularly likes to see evidence of any children born to the couple, evidence of cohabitation, and evidence of comingled finances. This evidence may not always be available, particularly in abusive marriages. In those cases, letters from friends, family, and social workers, or medical and police records reflecting abuse are extremely helpful.

Tips: Remind clients who are granted conditional residence early and often that they MUST file Form I-751 during the three-month window before their status expires. If a client misses the window, file the Form and supporting documents as quickly as possible, and explain the reason for the delay through a client affidavit. Encourage clients to hold on to bona fide marriage evidence throughout the two-year period; clients can create binders or file folders with sections for joint bank or credit card statements, family photos, updated leases or mortgages, and other evidence, so that they won’t need to scramble at the last minute. Do NOT ever file Form I-751 without supporting documents.

Current processing times: USCIS is taking anywhere from 1 ½ to 2 ½ years on Form I-751. In the past, joint petitions would be adjudicated more quickly and without an interview. Under the current administration, most if not all petitioners are interviewed and are taking equally long.

Form N-400: Application for Naturalization

Overview and requirements: Lawful permanent residents are generally eligible to apply for citizenship 4 years and 9 months after being granted LPR status. Some exceptions:

  • If granted LPR status through marriage, and they are still married to and living with their spouse, the immigrant can apply to naturalize 2 years and 9 months after they obtained their green card. This is true even if the immigrant had to file Form I-751 and that application is still pending. Filing the N-400 while the I-751 may actually speed up the process, and result in just one interview, effectively covering both applications at the same time.
  • - Immigrants who were granted LPR status through the Violence against Women Act can apply 2 years and 9 months after getting LPR status if the abuser was a U.S. citizen.
  • - Asylees can apply 3 years and 9 months after getting LPR status.

Naturalization applicants must pass civics and English language tests. English fluency is not required, but they will need to be at least conversational in English; they cannot bring an interpreter into the interview unless they are above a certain age and have had their LPR status for many years, or if they have a medical waiver demonstrating they are medically unable to learn English or the civics information.

Potential issues: Certain criminal convictions can render a lawful permanent resident ineligible for naturalization (if convicted within 5 years of the N-400 application) or even deportable. If a client has any criminal convictions, do your research before effectively turning them over for deportation. Remember that the definition of a conviction is wide for immigration purposes; for example, dispositions like ‘continued without a finding’ is typically a conviction for immigration purposes. Clients who spend more than half the time outside the U.S. will also be ineligible for naturalization.

Divorce can affect when a client is eligible to apply for naturalization. If the client obtained LPR status through marriage, they must still be married to and living with their spouse if they apply for naturalization ‘fast,’ that is, 2 years and 9 months after they gained LPR status. If the couple separates but does not divorce after the N-400 is filed but before the interview, the separation may not have an impact on the N-400. However, if the couple legally divorces at any point before the N-400 is granted, the client will have to wait until they’ve had the green card for 4 years and 9 months before apply for naturalization.

Tips: Ask your client if they have ever had to go to any court for any reason. No one wants to be surprised by a criminal issue mid-interview. If submitting a medical evaluation, scrutinize it carefully and make sure it’s as detailed as possible. If the interviewing officer deems it insufficient, you won’t find out until you’re at the interview, and your client will then need to come back with a better evaluation (or be prepared to take the tests without an interpreter).

Current processing times: 4-8 months.

Robin Nice, a partner at McHaffey & Nice, has practiced immigration law since graduating from Boston University School of Law in 2012.

Magaly Rojas Cheng (née Rojas Navarro) is an as Associate at Clark Lau LLC. She counsels employers and employees on various immigrant and non-immigrant processes. She also assists clients in obtaining permanent residence, with a particular emphasis on PERM labor certification applications. She enjoys working closely with clients to understand their objectives and provide a clear strategy to help accomplish them. Magaly earned her Juris Doctor degree from Suffolk University Law School and was admitted to practice law in Massachusetts in 2013. Magaly has been a member of the Boston Bar Association since 2017 and is a part of the Immigration Section Committee. She has been a member of the Massachusetts Association of Hispanic Attorneys and the Hispanic National Bar Association since 2015. She is also a member of the American Immigration Lawyers Association (“AILA”) and serves as a Law Student liaison and Congressional Liaison for its New England chapter.