When a US citizen marries a foreign national, the first step in the path towards a green card is Form I-130, Petition for Alien Relative. This form allows US Citizenship and Immigration Services (USCIS) to recognize your marriage and grant your new spouse special treatment as an immediate family member. This is critical, as immediate family members of US citizens do not have to establish three years of residency in the United States (as most green card applicants do). There are also no annual limits to visas for immediate family of US citizens, so your spouse will not have to sit on a waiting list for a visa to become available.

As you’re filling out Form I-130, Part 4, Question 46 applies to immigrants who have already entered the United States. If your spouse is currently in the United States, you’ll be asked to provide information about how and when they initially entered the country, including the date of arrival, Form I-94 Record Number, class of admission, and their visa’s expiration date. The class of admission specifically refers to the visa category that was used to admit your spouse at that time. You can find this on their visa or travel documents under “Category” (it’s often labeled “IV Category”). If your spouse has not yet entered the United States, this question doesn’t apply.

Note that you’ll see a similar question in Part 2 that asks for the petitioner’s class of admission. This question only applies to petitioners who are permanent residents (aka green card holders). If the petitioner is a US citizen, you can skip this question.

Spousal Eligibility for a Green Card

In order to uphold the value of family unity, US citizens are allowed to file a petition for their foreign-born immediate family members to live permanently in the United States. This includes your spouse, your unmarried children (under age 21), and your parents. In some cases, you may also petition for your spouse’s unmarried children, providing the children were under age 18 when you married your spouse, and the child is not currently 21 or older.

There are no requirements regarding your spouse’s length of time in the United States. Some green card categories require at least 3 years in the country, but in this case your spouse (or other immediate family members) simply needs to be present in the United States with a valid visa. There are, however, a few other general green card requirements that still apply:

  • Your spouse entered the country legally (they were inspected and admitted or inspected and paroled at a US Port of Entry)
  • Your spouse is eligible to receive a visa, and a visa is immediately available (note that visas for immediate family members of US citizens are always available)
  • Your spouse is not barred from receiving an adjustment of status
  • Your spouse is not considered inadmissible to the United States
  • Your spouse merits a favorable exercise of discretion

While the first two requirements are fairly self-explanatory, the final three may seem a little vague. Generally speaking, most bars to adjustment of status involve legal immigration status and unlawfully working in the US without authorization (see INA 245(c) for a full list of contributing factors). If your spouse is barred from an adjustment of status, you will need to work with an attorney to see if you qualify for an exemption.

On a similar level, there are circumstances that can lead to someone being considered inadmissible to the United States. Even if your spouse is already in the US, being inadmissible means that they could be barred from re-entry if they ever travel out of the country. If your spouse is inadmissible, you’ll need to file Form I-601, Application for Waiver of Grounds of Inadmissibility. You’ll need to make a very strong case to overturn grounds of inadmissibility, so it’s a good idea to work with an attorney and collect ample evidence to prove your merits. 

Finally, meriting a “favorable exercise of discretion” simply means that your spouse will clearly be a benefit to society in the United States. For immigrants who don’t have a criminal record, this should be rather simple. For those who have a checkered past, you’ll need to present enough positive evidence to outweigh any negative factors.

Form I-130, Supporting Documents

When you’re ready to submit Form I-130, you’ll need to include a few supporting documents:

  • Evidence of US citizenship
  • A copy of your civil marriage certificate
  • If either party was formerly married, include a copy of the annulment decree, divorce decree, or death certificate to prove the prior marriage was properly terminated
  • A passport style photo of the petitioner 
  • A passport style photo of the beneficiary
  • If either party has legally changed their name, include documentation to prove this (e.g. a marriage certificate, divorce decree, adoption decree, or court judgement of name change)

In addition to these documents, you’ll also need to offer some evidence that your marriage is legitimate (in other words, you married for love, not solely for immigration benefits). Immigration officials will want to see proof that you met in person before the wedding (plane tickets, hotel receipts, dated pictures, etc.), and that you intend to live together in the United States (e.g. a lease agreement or mortgage).

Other Green Card Application Forms

Form I-130 is an important part of your green card application, but it’s just one piece of the larger puzzle. A complete application will need to include the following forms and documents:

  • Form I-485, Application to Register Permanent Residence or Adjust Status – this is the primary application form for a green card. Spouses who are already in the United States can submit this concurrently with Form I-130. Prospective immigrants who are outside the United States will need to complete consular processing and enter the US with a valid visa before they can submit Form I-485.
  • Form I-864, Affidavit of Support – immigrants who cannot financially support themselves will need someone to sponsor their green card application. In this case, the sponsor will likely be the spouse who is a US citizen. Regardless of who the sponsor is, he or she will need to submit Form I-864 to pledge their sponsorship and prove their financial capability.
  • Form I-693, Report of Medical Examination and Vaccination Record – all green card applicants must complete a medical examination with a designated civil surgeon. Those who are not up-to-date on required vaccinations will need to receive those as well. Once complete, have the physician sign Form I-693.
  • Form I-797, Approval or Receipt of Notice – when you submit any USCIS forms, you should get a receipt from the agency. If you submit Form I-130 before you submit Form I-485, you’ll need to include a receipt for Form I-130 with your green card application.

 

Call our Immigration team at(480) 626-2388 to discuss your case today.

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