Just Married! Tying the Knot with a U.S. Citizen Does Not Guarantee a Green Card

While there are many romantic reasons to get married, gaining permanent resident status through marriage to a United States citizen is not one of them. Because a large part of the United States’ immigration system is designed to maintain family unity, various ways exist to adjust one’s status through marriage or family-sponsored visas. For example, you are a U.S. citizen but your non-citizen spouse lives abroad. Your spouse may receive a visa to live in the United States conditioned upon the validity of your marriage. This is considered a conditional visa. Before the conditional visa expires, you must petition to remove the “condition” and prove your marriage is valid. This is usually accomplished by answering a series of questions about your relationship.

Determine if a Green Card Marriage Is Your Best Option

Before you engage in a crash study session to learn every detail of your spouse’s life in the hopes of passing the validity test, you should first consult with an immigration attorney to see whether your petition to remove the condition would even solve your immigration problem. Where you were married, how your spouse entered, and when your spouse entered the United States will impact how useful the green-card-through-marriage option actually is to your situation. Because the statutory and procedural bars to this process are endless, being sponsored by a spouse, who petitions for the other’s adjustment of status, is not usually the most expedient way to obtain a green card.

If you decide to carry on with the green card marriage process, one of the first questions your spouse will be asked is when and how they entered the United States. If your spouse entered the country “without inspection," your spouse cannot later adjust his or her status to that of a permanent resident. The Immigration and Nationality Act does provide a limited exception for those who previously petitioned for change of status before what's known as the sunset date. The sunset date is a cut-off date set by the Immigration and Nationality Act in Section 245(i). The act requires a previous petition for relief to have been filed before April 30, 2001. Thus, anyone who entered the country illegally and had no previous application pending is barred from gaining legalized status through marriage to a U.S. citizen.

The Impact of Prior Application Status

The status of any prior applications will also impact your spouse’s application for a green card through marriage; for example, before you were married, your spouse entered the United States through a non-immigrant visa and subsequently applied for asylum. Asylum applicants who enter legally must remain in “status” while the application is pending. The filing of an asylum application alone does not extend legal status. Meaning, the application will not automatically renew itself. The burden is on your spouse to continue renewing his or her status while the application is pending. Those who fail to renew their status will begin to accrue illegal presence. The status of illegal presence will disqualify your spouse from applying for an adjustment, or change, of status through marriage.

How a Person Enters the Country Matters

For these reasons, the crucial first step is to know how your spouse entered the country and if he or she remained in status for the relevant time. If your spouse’s entry was an “admission” to the United States and he or she renewed permission to remain in the country beyond the visa’s expiration date, you should be able to establish eligibility and adjust his or her status through marriage. If you and your spouse cannot establish eligibility, your spouse may still qualify for consular processing through a United States consulate in his or her home country. However, your spouse would have to leave the United States and stay abroad while the application is being processed. Consular processing can take a very long time.

The good news is that if you follow the procedures, establish eligibility to adjust, and your spouse is placed in removal proceedings, it is relatively difficult to deny an application based on fraud, even if you divorce shortly thereafter. Once the petition is filed, the standard for determining a bona fide marriage is whether the couple planned to stay together at the time of the marriage, not what happened later. If you married your spouse for all the right reasons, take the time to apply for a green card in all the right ways. Consult with a qualified immigration attorney to learn about all of your immigration options.