Getting a green card can be a long and challenging process for immigrants in the United States. The path to permanent residency is a little easier for spouses and immediate family members of US citizens, but it still takes time and effort. It’s certainly easier with the help of an experienced immigration attorney who can guide you through the process, maximize your success rate, and streamline your case for faster processing.
Processing Time for a Green Card
The primary green card application is Form I-485, Application to Register Permanent Residence or Adjust Status. For a spouse who is already in the United States with a valid visa, the standard processing time for this form is about 1 – 2 years (for an up-to-date estimate, check the USCIS processing time web page).
You’ll also need to submit Form I-130, Petition for Alien Relative, so that USCIS will recognize your marriage. If your spouse is already in the United States, you (the US citizen) can submit this petition concurrently with Form I-485 to speed up the process. If your spouse is still outside of the United States and doesn’t have a visa, USCIS will need to approve this separately before issuing the foreign spouse a visa. Unfortunately, this adds about 5 – 7 months to the processing time.
The good news is that once Form I-130 is approved, your spouse will qualify for a visa immediately. Unlike other visas that have annual limits and waiting lists, visas for immediate family members of US citizens are always available. Your spouse will still need to complete an interview with a consular officer at the nearest US Embassy or Consulate, submit fingerprinting, and complete a medical examination, but at least they won’t be subject to a waiting list.
Once your spouse receives their visa, they may enter the United States at any port of entry. After passing an interview at a Customs and Border Protection Primary Inspection Booth, the CBP officer will stamp their passport and validate the visa. Now that your spouse has lawfully been admitted to the United States, you can submit Form I-485 to process an adjustment of status to permanent residency.
Factors That May Delay a Petition
Having to go through consular processing outside the United States isn’t the only hurdle that can delay a green card petition. Depending on your spouse’s situation, you may need to submit additional forms, seek a waiver, or appeal negative USCIS decisions. Following is a brief overview and discussion of some factors that can complicate a green card petition.
Bars to Adjustment
An immigrant is considered ineligible for an adjustment of status when they are in the country without a valid visa or have otherwise violated certain US immigration laws. The specific bars to adjustment are listed in INA § 245(a), and include the following:
- The immigrant last entered the United States without being admitted or paroled after inspection by an immigration officer
- The immigrant last entered the United States as a nonimmigrant crewman
- The immigrant is currently employed or has previously been employed in the United States without proper authorization
- The immigrant is not in lawful immigration status at the time of filing
- The immigrant has failed to continuously maintain a lawful status since entry into the United States (unless said failure was by no fault of your own)
- The immigrant was last admitted to the United States in transit without a visa
- The immigrant was last admitted to the United States as a nonimmigrant visitor without a visa, under the Guam and Commonwealth of the Northern Mariana Islands Visa Waiver Program, and he or she is not a Canadian citizen
- The immigrant was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program
- The immigrant is seeking employment-based adjustment of status, but he or she does not have lawful nonimmigrant status on the date of filing
- The immigrant has violated the terms of their nonimmigrant visa
Note that not all of these bars to adjustment are inherently bad. Some of them simply mean that the immigrant doesn’t have the right type of visa to process an adjustment of status. In these cases, the problem can easily be rectified by applying for a valid visa. Once you have the proper visa authorization, you can then apply for a green card with Form I-485.
Inadmissibility into the United States
You must be admissible to the United States in order to qualify for a green card. Even if you are already in the United States, you cannot be in a position that would make you inadmissible should you exit the country and attempt to re-enter. The grounds of inadmissibility are established in INA § 212(a). For example, some of the more common grounds of inadmissibility include:
- Having a communicable disease of public health significance
- Incomplete vaccination records
- A physical or mental disorder and behavior associated with the disorder that may pose (or has posed) a threat to themselves or others
- Committing a crime of moral turpitude
- Committing a crime involving controlled substances
- Conviction of two or more crimes with a combined sentence of five years or more in prison
- Participation in illicit trafficking, prostitution, money laundering, or terrorism
Note that for spouses of US citizens, labor certification and qualifications for certain immigrants do not apply. Outside of that exception, USCIS will only be able to approve your green card application if none of the grounds of inadmissibility apply to your case, or if you receive a waiver of inadmissibility.
As with any bans on adjustment, you should consult with an attorney if you are subject to any grounds of inadmissibility. You can seek a waiver of inadmissibility with Form I-601, Application for Waiver of Grounds of Inadmissibility, but you will need to present a very strong case to win a favorable exercise of USCIS’ discretion.
Previous Deportation or Removal Order
When a US immigration judge issues a removal order (aka deportation order), the court order typically carries a 10-year ban on re-entering the United States. If the deported immigrant attempts to unlawfully re-enter the United States, immigration officials will usually extend the ban to 20 years. In some severe cases, immigration officials can even impose a lifetime ban.
While any type of ban on re-entering the United States is serious, this is one hurdle that tends to be a little easier for the spouse of a US citizen. You’ll need to submit Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal. As a travel ban is considered grounds of inadmissibility, you’ll also need to submit Form I-601, and work with an experienced attorney to build a strong case for your merits to earning a green card.
Call our Immigration team at (480) 626-2388 to discuss your case today.