F2A)

Marriage-based green cards are for foreign persons who are legally married to a U.S. citizen or a green card holder (Lawful Permanent Resident). There are 2 types of marriage-based green cards: regular green cards (10-years) and conditional green cards (2-years).

The spouse (widow(er)) of a deceased U.S. citizen can file for a green card for themselves within 2 years of the U.S. citizen’s death.

MARRIAGE BASED GREEN CARD CATEGORIES

There are 2 main categories under the marriage-based green card petitions:

Married to U.S. Citizen

IR1: Regular green card (10 years & renewable)
CR1: Conditional green card (2 years & conditions must be removed before expiration)

Married to Green Card Holder

F2A: Regular green card (10 years & renewable) or conditional green card (2 years & conditions must be removed before expiration)

**Same-sex marriages and marriages to transgender spouses are included in marriage-based green card petitions

**Widow(er) of deceased U.S. citizen (self-petition)

MARRIAGE BASED GREEN CARD QUALIFIED PERSONS

A foreign person married to a U.S. citizen or green card holder is qualified to apply for a 2-year conditional green card or a regular 10-year green card. If the couple has been married for over 2 years when the green card is approved and issued, the regular 10-year green card will be given. However, if the marriage with the U.S. citizen or green card holder happened less than 2 years before the green card is approved and issued, a 2- year conditional green card will be given. The conditional green card is valid for 2 years and the couple has to file for a removal of conditions petition (Form I-751) together to change the 2-year conditional green card into a regular 10-year green card within 90 days prior to the expiration date of the 2-year conditional green card. If the 2-year condition is not removed, the green card status (permanent residency) will be terminated for the foreign spouse.

If a divorce or annulment happens before the conditions are removed from the 2-year conditional green card, a waiver will be required to show that the marriage was a union in good faith. Providing evidence such as having children together and owning property jointly can show the marriage was entered in good faith.

The original statutory wording for qualified persons in marriage-based green card petitions can be found in 8 CFR 204.2(a).

Regular 10-Year Green Cards & Conditional 2-Year Green Cards

Whether a regular 10-year green card or a conditional 2-year green card is given to the foreign spouse of a U.S. citizen or green card holder depends on if the couple’s marriage has been over or less than 2 years at the time the foreign spouse is admitted (enters) to the United States or the date of their adjustment of status application (Form I-485) within the United States is approved.

Regular Green Card

Regular green cards are renewable 10-year green cards that are issued to foreign spouses of U.S. citizens or green card holders who have been married for over 2 years at the time the foreign spouse’s green card status is given.

Conditional Green Card

Conditional green cards are nonrenewable 2-year green cards that are issued to foreign spouses of U.S. citizens or green card holders who have been married for less than 2 years at the time the foreign spouse’s green card status is given. During the 2-year period, the conditional green card can be terminated if there was a divorce or annulment, or fraud was found.

Before the 2-year conditional green card expires, the couple must jointly (together) file a removal of conditions petition (Form I-751) to turn the 2-year conditional green card into a 10-year regular green card. If the 2-year condition is not removed, the green card status (permanent residency) will end for the foreign spouse and they will be subject to be removed from the United States with a Notice to Appear (Form I-862, NTA).

Waivers for Marriages Ending During the 2-Year Conditional Green Card

If the marriage ends before the conditions are removed from the 2-year green card, a waiver that shows the marriage was a union in good faith will be required for the foreign spouse to file for a removal of conditions petition (Form I-751) by themselves.

The waiver to file the removal of conditions petition (Form I-751) as a single person and not as a couple can be based on four grounds:

the marriage was entered in good faith but has ended by divorce or annulment
the marriage was entered in good faith but the foreign spouse has been battered or subjected to extreme cruelty by the U.S. citizen or green card holder
there will be extreme hardship if the foreign spouse is deported
the marriage was entered into good faith but the U.S. citizen or green card holder passed away (a separate waiver is not required in this situation)

The original statutory wording for the evidentiary requirements of marriage-based green cards can be found in 8 CFR 204.2(a)(1)(i)(B).

Good Faith Marriage

To prove that the marriage was entered in good faith, the foreign spouse should provide documents that show the couple sharing financial assets and liabilities, birth certificates of their children born during the marriage, the amount of time the coupled lived together in the same house, and any other relevant evidence that support it was a real marriage and the couple had made attempts to salvage the marriage.

For example, a foreign spouse providing documents that show the couple jointly owned a house, share biological children together, filed joint tax returns, photos of family social events on different occasions, bills for couple counseling, and affidavits from friends of the couple attesting to their relationship would serve as a strong case of a good faith marriage.

Waiver Filed During Divorce or Annulment

For foreign spouses that file for the waiver during divorce or annulment proceedings, the USCIS will issue a Request for Evidence (RFE) to ask them to provide their final decree within 87 days and if it is not satisfied the foreign spouse’s waiver request will be denied and they will be subject to removal from the United States.

Late Filings of the Removal of Conditions (Form I-751)

The removal of conditions petition (Form I-751) must be filed within the 90-day period before the 2-year conditional green card expires to extend the foreign spouse’s status for an additional 18 months. If the removal of conditions petition is not filed on time, the couple must show that their late filing is due to a good cause and extenuating circumstances such as death of a family member, hospitalization, new born child, or active U.S. military duty.

Failure to Remove 2-Year Condition (Form I-751) or Remarried

If the foreign spouse’s conditional green card has expired and the removal of conditions petition (Form I-751) to change into a regular green card was not filed, filed late, denied, then the couple would have to start over again and file a new marriage-based green card petition (Form I-130) for consular processing at a U.S. consulate or embassy overseas. If the new marriage-based green card petition is approved, the foreign spouse would be issued a regular 10-year green card instead of a 2-year conditional green card because the marriage would have already been over 2 years.

If the foreign spouse remarries another U.S. citizen (or green card holder), the new couple would have to file a new marriage-based green card petition but the foreign spouse is allowed to file for an adjustment of status without leaving the United States.

Same-Sex Marriages and Marriages to Transgender Spouses

Marriages of same-sex couples are included in marriage-based green card petitions if it was legal where the marriage took place. Marriages that involve a transgender spouse are included in marriage-based green card petitions if (1) the transgender spouse legally changed their gender before marrying their spouse who is of the other gender, (2) the marriage is deemed a heterosexual marriage under the law where the marriage took place, and (3) the marriage was legal under the law where the marriage took place.

MARRIAGE BASED GREEN CARD REQUIREMENTS & DOCUMENTS

The marriage-based green card petitions have four main requirements that need to be satisfied: evidence must be provided to the USCIS to show that the (1) the sponsoring person must be a U.S. citizen or green card holder, (2) there is a real marriage between the foreign person and the U.S. citizen or green card holder, (3) the foreign person will not become a public charge (typically the U.S. citizen must have income that is at least at the 125 % of the federal poverty level), and (4) the foreign person is admissible to enter the United States.

Evidence Required for the Marriage-Based Green Card

A general (not exhaustive) checklist of what is required for marriage-based green cards is listed below. The evidence provided for the marriage-based green card petition must show:

The person sponsoring the marriage-based green card petition is a U.S. citizen or a green card holder (lawful permanent resident)

- Two passport photos of the U.S. citizen or green card holder
- U.S. passport (valid and unexpired)
- U.S. Permanent Resident Card (Form I-551 Green Card)
- Birth certificate
- Naturalization Certificate or Certificate of Citizenship (issued by the USCIS)
- Consular Report of Birth Abroad (Form FS-240) issued by a U.S. consulate or embassy
- U.S. consular officer’s verification of U.S. citizenship with valid U.S. passport

The family relationship of the U.S. citizen or green card holder and their foreign spouse or children

Two passport photos for each foreign person
Marriage certificate between foreign spouse and U.S. citizen or green card holder
Birth certificates (it should show names of both parents)
Divorce by legal termination of all prior marriages for the foreign spouse and U.S. citizen or green card holder (e.g., divorce decree, annulment order, death certificate of prior spouse)
Form I-130A (Supplemental Information for Spouse Beneficiary) if foreign spouse is already in the United States

For adopted children, additional documents must be provided:

Final adoption decree (must have taken place before the child turned 16 years old and it should include the name of the adoptive parents, the date and place of adoption)
Documents that show there were 2 years of legal custody of the adopted child
Documents that show there were 2 years of joint residency (living at the same address) with the adopted child

The marriage is bona fide (real)

Documents that show joint ownership of property
Lease that show joint tenancy of a common residency (living at the same address)
Documents that show combined financial resources
Birth certificates of children born by the U.S. citizen or green card holder and foreign spouse
Affidavits from a third party who has personal knowledge (first-hand) that the marriage is real. (it should include the affiant’s full name, address, place of birth, date of making the affidavit, and the detailed explanation of how and what the person knows about the marriage)
Any other documents that can show the marriage is ongoing

The foreign person will not become a public charge in the United States

Affidavit of Support (Form I-864)
Documents that show the U.S. citizen or green card holder’s income is at least at the 125 % of the federal poverty level (e.g., most recent tax returns, bank statements)

The foreign person is admissible to enter the United States

Passport (expiration date must be more than 6 months than the time intended to stay in the United States)
Two passport photos
Police certificates (it should include the country of residence and all countries that the person has lived for at least 6 months since 16 years old)
Sealed medical examination form

If the person is filing for an adjustment of status, the foreign person must provide additional documents to show that they have been maintaining a valid nonimmigrant visa status during their time in the United States:

Passport pages (it should include biographical page, related U.S. visas, admission stamps, parole stamps)
Arrival/Departure Record (Form I-94)
Documents that show the persons valid nonimmigrant status (e.g., I-20, I-797)
Form I-864 (Affidavit of Support Under Section 213A of the INA) OR Form I-864EZ (Affidavit of Support Under Section 213A of the INA) *Petitioner must be at least 18-year-old to sign
Documents that show the financial support for or financial condition of the person (e.g., Form W-2 for the past three years, employment verification letters)
Report of Medical Examination and Vaccination Record (Form I-693)
Marriage-based green card petition (it should include Form I-130 and all required documentation) if filing the adjustment of status (Form I-485) concurrently
Receipt notice or approval notice (Form I-797) of the marriage-based green card petition (Form I-130) if not filing the adjustment of status (Form I-485) concurrently

MARRIAGE BASED GREEN CARD GENERAL PROCESS

There are two (or three if it is a conditional green card) main steps in obtaining a marriage-based green card:

Step One: Filing the Marriage-Based Green Card Petition

The U.S. citizen or green card holder files a marriage-based green card petition (Form I-130) to the USCIS.

Step Two: Interview & Changing Into a Green Card Visa Status (Adjustment of Status or Consular Processing)

After the marriage-based green card is approved by the USCIS, the foreign spouse must then change into their green card visa status. Changing into a green card visa status can be done by either an adjustment of status within the United States or consular processing overseas (outside the United States).

Adjustment of Status

If the foreign spouse is in the United States and has maintained a legal nonimmigrant status, then an adjustment of status (Form I-485) can be done in the United States when the priority date is current (there is usually no waiting time if married to a U.S. citizen.) For most cases of marriage to a U.S. citizen, the adjustment of status (Form I-485) is filed concurrently with the (Form I-130) marriage-based green card petition and an interview will be scheduled around 3 to 4 months after the filing date. The couple will be interviewed at a local USCIS office to verify that there is a bona fide (real) marriage. After the interview approval, the foreign spouse’s green card will be mailed to their address listed in the United States.

Consular Processing

If the foreign spouse is overseas (or in the United States but chooses to do consular processing or is ineligible to do an adjustment of status in the United States), the case will be transferred to the National Visa Center (NVC) after the marriage-based green card petition (Form I-130) is approved with the USCIS. When the time is near to the priority date becoming current, the NVC will ask for documents that are required to proceed and when completed will transfer the file to the U.S. consulate or embassy overseas. Once the priority date becomes current, the couple will attend a scheduled interview at the U.S. consulate or embassy overseas.

After the interview approval, the immigrant visa (green card) will be mailed to the foreign spouse’s overseas address in a sealed envelope which must be given to the CBP officer at the U.S. port of entry (e.g., airport) when the foreign spouse is physically entering the United States. After the foreign spouse is admitted (enters) to the United States with a lawful permanent residency stamp by the CBP officer and they have paid the green card production fee ($220) to the USCIS, the foreign spouse’s green card will be mailed to their listed address in the United States.

*Step Three: File Removal of Conditions Petition if Foreign Spouse Received a 2-Year Conditional Green Card

If the foreign spouse received a conditional green card, the couple must file for a removal of conditions petition (Form I-751) together for the 2-year conditional green card to be changed into a regular green card.

Waiver for Divorce Within 2 Years of Marriage

If there was a divorce before the 2-year conditional green card is changed into a regular green card, the foreign spouse must file a waiver with the removal of conditions petition (Form I-751) by themselves. The waiver to file the removal of conditions petition (Form I-751) as a single person can be based on that the marriage was entered in good faith but has ended by divorce or annulment, the foreign spouse has been battered or subjected to extreme cruelty by the U.S. citizen or green card holder, there will be extreme hardship if the foreign spouse is deported, or the U.S. citizen or green card holder passed away.

**Stokes Interview

A second (stokes) interview may be requested after the initial adjustment of status interview or at the removal of conditions stage if there are suspicions about whether the marriage is real. It can happen by receiving a notice of a second (stokes) interview or be done on the same day (rare) as the interview. In a stokes interview, the USCIS officer may separate the couple into two rooms and ask identical questions about the couple’s relationship. The officer will then compare the couple’s answers to see if they match. This can take up to several hours.

MARRIAGE BASED GREEN CARD PROCESSING TIME

The total time a marriage-based green card takes is consisted of the processing time for (1) the marriage-based green card petition (Form I-130) with the USCIS and (2) the change of status when the person’s priority date becomes current by filing the adjustment of status Form I-485 application if adjusting status within the United States or the DS-260 application if doing consular processing at a U.S. consulate or embassy located outside the United States.

Factors that influence the processing time usually include but are not limited to where the person was born, if there was any Request for Evidence (“RFE”) issued, and the caseload of the USCIS service center, National Visa Center (NVC), and the U.S. consulate or embassy.

A rough estimate for the married-based green card Form I-130 petitions can be around 3 to 34.5 months (with an average of 8 to18 months) and premium processing is not available. Current estimates of the processing time can be checked here.

Priority Date for Status Change

There are two parts in the processing time for a change of status: (1) the time to when the foreign spouse’s priority date becomes current which can range from no wait time to multiple years depending on what country the foreign spouse was born in, and (2) the time to process Form I-485 for adjustment of status or DS-260 for consular processing which a rough estimate can range from 4 to 15 months. The priority date for marriage-based green card petitions is the date that the USCIS receives the immigration petition (Form I-130).

For immediate relatives of U.S. citizens (which includes the spouse of a U.S. citizen), there is no wait time for the priority date to become current and thus the change of status application is usually filed concurrently (at the same time) as the green card petition.

For other cases (such as the spouse of a green card holder), after the USCIS approves the marriage-based green card (Form I-130) petition, the person will then wait for their priority date to become current to apply for a change of status into a green card holder (lawful permanent resident).

The reason as to why there are different wait times for a priority date to become current is due to the total limit on how many green cards (immigrant visas) can be given out each year and a separate limit on how many green cards are allotted for each country. For people born in certain countries (based on country of birth and not country of citizenship) such as China or India, there is usually not enough available visas each year due to high-volume immigration from those countries so they would have to wait for their visas (green cards) to become available which would be based on when their priority date becomes current in the monthly Visa Bulletin released by the U.S. Department of State (DOS).

MARRIAGE BASED GREEN CARD STATUS CHANGE (Adjustment of Status or Consular Processing)

Changing into the green card visa status (the lawful permanent resident immigrant visa status) is the final step in being able to work freely and live permanently in the United States. There are two ways to obtain the green card visa status: adjustment of status and consular processing.

Adjustment of status is usually for a person who is already in the United States with a valid nonimmigrant visa status and has maintained a lawful visa status throughout their time within the United States. On the other hand, consular processing is for a person living outside the United States or for a person who is ineligible in adjusting their status in the United States.

Person Outside U.S. (or Person Ineligible for Adjustment of Status)

For a person who is residing overseas (outside the United States) or a person who is ineligible for an adjustment of status with the Form I-485 application, consular processing must be done to obtain the marriage-based green card visa status (i.e., lawful permanent resident). Consular processing usually involves the person attending an in-person interview at the U.S. consulate or embassy located in their home country. In certain circumstances, a person can do consular processing in another country as a “Third Country National.”

After the interview approval at the U.S. consulate or embassy, the person would have to be admitted entry into the United States by the CBP officer at the border (usually at the airport). In other words, the person would have to physically enter the United States after their interview approval as the final step for their marriage-based green card visa status to be activated.

Person Residing in the U.S. (Maintained Lawful Visa Status)

For a person who is already in the United States with a valid nonimmigrant visa, there are usually two options available to obtain their marriage-based green card visa status (Lawful Permanent Resident):

(1) Adjustment of Status: this is the more commonly chosen option where the person would file a Form I-485 application to adjust their status without leaving the United States. The person would attend an in-person interview at a local USCIS office in the United States and the interview approval would serve as the final step for their marriage-based green card visa status to be activated.

The adjustment of status application (Form I-485) can be filed when the person’s priority date becomes current in the Visa Bulletin which means that there are no backlogs in visa availability for the person’s country of birth (not country of citizenship). This can happen while the green card petition (Form I-130) is still pending (i.e., before approval) with the USCIS or after the green card petition (Form I-130) is approved by the USCIS. It can also happen in concurrent filings (Form I-130 and Form I-485 sent together) where the person’s priority date is already current at the time of filing the green card petition (Form I-130) to the USCIS.

For the U.S. citizen’s spouse (who is under the immediate relative system), the adjustment of status application is usually filed concurrently with the marriage-based green card petition because the person’s priority date would be current at the time of filing their marriage-based (immediate relative) green card petition.

EAD Card & Advance Parole

When the adjustment of status application (Form I-485) is filed, applications for the employment authorization document (Form I-765, commonly known as the “EAD card”) and the travel document (Form I-131, commonly known as “Advance Parole”) can also be filed at the same time.

The EAD card allows unrestricted employment where a person can change their job freely and can legally work for any employer in the United States, unlike a work visa such as an H1B visa which restricts a person to work for a specific employer in the United States.

Advance parole allows a person to travel internationally while their adjustment of status is still pending. If a person has a pending adjustment of status application (Form I-485) with the USCIS but leaves the United States without advance parole and does not have a certain valid nonimmigrant visa status (H1B visa, H4 visa, L1 visa, L2 visa, K3 visa, K4 visa, V visa) that allows international travel, their adjustment of status will be considered abandoned.

(2) Consular Processing: this is usually chosen if a person cannot show that they have maintained their lawful visa status in the United States or when the processing time for consular processing is much faster than the adjustment of status.

CHILDREN OF FOREIGN SPOUSE

The children of the foreign spouse can obtain their green card in three ways: (1) the U.S. citizen or green card holder can adopt the child if the child is under 16 years old and has already lived with them for at least 2 years, (2) the U.S. citizen or green card holder can file as a step-parent, and (3) the foreign spouse of the U.S. citizen (or green card holder) can file a second preference family-based green card petition after they obtain their own green card.

CONCLUSION (TLDR)

Marriage-based green card petitions are for the foreign spouse of U.S. citizens or green card holders. The foreign spouse can receive a 2-year conditional green card or 10-year regular green card depending on whether the couple was married for over 2 years or less than 2 years at the time they obtain their green card visa status (which is when their adjustment of status is approved or when they enter the United States).

If the couple was married for over 2 years at the time the foreign spouse was admitted (entered) to the United States or their adjustment of status application (Form I-485) was approved, a regular 10-year green card will be given.

If the couple was married for less than 2 years at the time the foreign spouse was admitted (entered) to the United States or their adjustment of status application (Form I-485) was approved, then a 2-year conditional green card will be given and the couple would have to file a removal of conditions petition (Form I-751) together within 90 days of the expiration date of the 2-year conditional green card. The removal of conditions petition (Form I-751) must be filed jointly (together) as a couple to change the 2-year conditional green card into a regular 10-year green card unless a waiver is approved.

If the couple is divorced before the removal of conditions petition is approved, the foreign spouse filing the removal of conditions petition as a single person must have a waiver that proves they entered the marriage in good faith.

HAVE A MARRIAGE BASED GREEN CARD IMMIGRATION QUESTION? CONTACT US

If you have a marriage-based green card (foreign spouses of U.S. citizens or green card holders) immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.

How we can help?

Kylie Huang Law’s immigration attorney will help identify what type of marriage-based green card the client is qualified for and whether there are other green card options available to the client. We will work closely with our clients to prepare their marriage-based green card petition and we will also strategize on how the marriage-based green card petition should be presented in the filings and in the interview to achieve the best chances of approval. It is advised and common practice to retain an immigration attorney for certain unusual marriage-based green card petitions due to the complexities in the immigration process and visa requirements.

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