The immigration attorneys at Corrales Law Group have handled hundreds of residency (‘Green Card’) through marriage cases in Orange County and throughout the world. Gaining resident status through marriage is very common but also very misunderstood because there can be very big differences between two cases. Many people believe that marrying a United States citizen means gaining residency will be very easy, but that is not always the case. When someone comes to us for a consultation on these types of cases, an immigration attorney first sits with the family to screen for any inadmissibility issues in an effort to avoid surprises down the road. Below is a description of the general process but please keep in mind that every case is different and not all steps are required in all cases. Please consult with an attorney before starting a residency through marriage case.
Step 1- Immigration Attorney looks for any problems that can come up and screens for eligibility
It is very important to discuss the applicant’s background with an experienced immigration attorney to make sure no issues will come up later in the process and to determine whether adjustment of status is possible. One of the most common inadmissibility issues that arise is the applicant’s ‘unlawful presence’ in the United States. In many cases, there is a waiver for inadmissibility, but it is important to discuss the waiver process before starting a residency through marriage case. If there are no inadmissibility problems then a waiver will not be needed. If you have an inadmissibility issue and there is no available waiver, it is very important that you and your spouse know so before you begin any immigration process.
Step 2- File an I-130 Petition
The first step in a marriage case is to file an I-130 which allows the US citizen to petition for his/her spouse to become a resident. An I-130 is filed to show the government that the relationship is ‘bonafide’ and not for immigration purposes. The package should be sent with enough proof of the relationship to show USCIS that the relationship is real, that both the petitioner and beneficiary are legally able to marry, and that the petitioner is eligible to petition for the beneficiary.
Step 3- National Visa Center (NVC) or Adjustment of Status
Adjustment of Status
If the beneficiary is eligible, an adjustment of status is filed at the same time as the I-130 and both will be decided by USCIS concurrently. An adjustment of status usually means the petitioner and beneficiary will go to an interview at the local USCIS office where an officer will determine if the relationship is ‘bonafide’ and whether there are any inadmissibility issues that need to be addressed. Many of our clients request an immigration attorney to prepare them for the adjustment of status interview and it is always included in our adjustment of status packages. One of our immigration attorneys sits down with the couple and acts as the USCIS officer so that the couple will know what to expect and will feel more comfortable at the interview. At the interview the case may be approved or the officer may raise some issues in the case, which is why it is important to consult with an immigration attorney and know what to expect. If the case is approved, the beneficiary will be granted residency and the case is finished. If the marriage has been shorter than two years then a waiver of conditional residency will have to be filed 90 days before the expiration of the conditional residency (see step 6)
National Visa Center (NVC)
If the beneficiary is not in the United States or they are not eligible for an adjustment of status for some other reason, then USCIS will decide the I-130. If the I-130 petition is approved the case will be forwarded to the National Visa Center for processing. During this stage in the case, various documents will have to be submitted to the NVC including an affidavit of support, an online biographical information application, and various civil documents. The National Visa Center acts as an intermediary between USCIS and the consulates abroad. If a 601a waiver for unlawful presence will be filed, it can now be filed right after the case is forwarded to the National Visa Center and the visa application fee is paid.
Step 4- Consulate interview and Prepare/File any waivers
If the case has been properly handled, at this point the beneficiary will have to attend an interview at the consulate in their country of origin. The interview will be conducted by an officer that will be looking through the information submitted up until the interview and will determine if the case is approvable. The attorneys at Corrales Law Group regularly prepare clients for interviews abroad.
If there are any inadmissibility issues a waiver may be required. Waivers can be very complex and we highly recommend contacting one of our immigration attorneys to discuss your particular situation. At Corrales Law Group we handle waivers on a daily basis but each case is different. If a waiver is required, it must be approved before the beneficiary is granted residency through marriage.
Step 5- Waive conditional residency (If marriage is less than two years old)
If the marriage is less than two years old at the time residency is granted, then a waiver of conditional residency must be filed 90 days before the expiration of the conditional residency. The waiver is filed by submitting form I-751 along with evidence supporting the validity of the marriage. In cases where the marriage has been dissolved during the first two years, an additional waiver may have to be filed. If the I-751 is approved, the residency is no longer conditional and the beneficiary has achieved permanent residency through marriage.