There are many forms which must be completed to obtain a green card on behalf of one’s spouse. Additionally, you must prove that your relationship is “bona fide,” that is, that the relationship is real and not just entered into for immigration purposes.
The term “adjustment of status” refers to a green card application that is submitted from within the United States. If your spouse is outside the U.S., he or she must “consular process” to obtain a green card or must enter with a fiancé(e) visa and then adjust status here.
General information, such as that provided below, does not constitute individual legal advice nor is it meant to take the place of the assessment of an expert; however, we do hope to answer some of the questions we hear most often. You should always consult with a qualified immigration attorney about the individual facts of your case before making any decisions about your particular situation.
What forms do we need to fill out in order to sponsor a foreign spouse for a green card if we are both in the U.S.?
If you are filing green card paperwork on your own, please read all of the instructions very carefully. Many documents will be requested along with the forms listed below.
The U.S. citizen must provide the following:
- I-130 petition for alien relative
- I-864 affidavit of support
- G-325A biographic information
The foreign national partner must file the following forms:
- I-485 adjustment of status
- I-693 civil surgeon examination
- G-325A biographic information
While not required, the foreign national partner may also choose to file the following forms:
- I-765 employment authorization document application
- I-131 application for advanced parole (which allows travel outside the U.S. while the application is pending)
What does the U.S. citizen spouse have to show for the I-864 affidavit of support?
In order to demonstrate that the foreign national spouse will not become a public charge, the U.S. citizen spouse must prove that they have sufficient financial resources to support their spouse. The U.S. spouse will have to provide evidence that their annual income is at least 125% of the Federal Poverty Guidelines for their household size. They will have to submit proof of their current employment as well as their most recent federal income tax return. If they do not earn enough money to sponsor their household size at 125% of the poverty level, they can supplement the affidavit with assets (for example if they own a home but live on a fixed income) or they can have a family member or friend file a joint affidavit of support. The joint sponsor must independently make enough money to support the foreign national and their own household at above 125% of the poverty level. You may find a chart of the poverty guidelines here: http://www.uscis.gov/i-864p
What does the I-693 civil surgeon examination require?
Anyone who applies for permanent resident status in the U.S. must establish that he or she is not inadmissible on public health grounds. USCIS requires foreign nationals to undergo a medical examination with a designated civil surgeon before submitting their adjustment of status application in order to confirm that they are not suffering from a “communicable disease of public health significance.” The results of the examination will remain valid for 12 months. Note, the medical examination no longer includes a test for HIV, and being HIV positive is no longer an automatic ground of inadmissibility. That being said, the applicant’s overall health, including HIV status, can be taken into consideration by USCIS as it determines whether or not the applicant is likely to become a public charge.
What is the filing fee?
The total filing fee for a spousal petition and application to adjust status is currently $1490 for most people. USCIS increases fees often, and there are some exceptions for minor children or the elderly, so be sure to check the USCIS website for current fees and mailing addresses. The overall fee includes $420 for Form I-130 and $1070 for Form I-485. Note that there are additional filing fees for Forms I-765 and I-131, however those fees are waived if these forms are submitted at the same time as the I-485 application.
What kind of evidence should we submit to prove that our relationship is real?
There are many ways to prove that you and your spouse are a genuine couple. Copies of the following types of documents can be useful in proving that the marriage is real. This list is not exhaustive, and couples do not need to have every one of these items. Nevertheless, couples should gather as many documents as they can that tend to show that their relationship is about more than pursuit of a green card.
- Photographs of the wedding ceremony and of time spent together as a couple
- Wedding invitations, announcements, congratulation cards, etc.
- Proof of joint parentage or custody of a child or children
- Utility bills in both spouses’ names
- Leases, mortgages, or rental agreements in both spouses’ names
- Joint bank accounts, insurance policies, etc.
- Employer records showing that one spouse has listed the other as an emergency contact
- Evidence that one spouse has made the other a beneficiary of a will, insurance policy, retirement plan, etc.
- Medical powers of attorney or health care directives giving one spouse the authority to make medical decisions for the other
- Records of club, gym, or other memberships where both spouses are listed as members
- Letters, emails, cards, or records of other correspondence (phone, Skype, etc.) over the course of the relationship that document frequent communication with one another
- Evidence of travel together, including trips to visit one another if the couple has been living apart
- Letters of support from friends and family who know the couple and who can attest to the bona fide nature of their relationship
What happens after filing?
USCIS will contact the couple to confirm that it has received your submission and will assign the foreign national partner an alien registration number, or “A number,” if they do not already have one. The foreign national partner will also receive an appointment notice to report to the nearest USCIS Application Support Center to have their biometrics taken. At this appointment, the applicant’s fingerprints and photograph will be taken, and they will be required to fill out a few identification forms. Please be sure to take a valid photo I.D. to your biometrics appointment.
Will we have to go to a USCIS office for an interview?
Maybe. In many cases, USCIS requires an interview with the local office before approving a marriage-based adjustment of status application. Sometimes however, a couple is granted an I-130 without an interview. If a couple does receive an interview, a USCIS officer may ask them questions about the documents that they have submitted and answers that they have provided on their immigration forms to double check their accuracy. The couple may also be questioned about the nature of their relationship, including how they met, details about their wedding, and questions about their daily married life together. If the officer has any reason to doubt that the marriage is real, the couple can be called back for a second interview at which the two spouses are split up and asked more detailed questions about their life together (like, what color is each spouse’s toothbrush; how many air conditioners are in the apartment; what is each spouse’s favorite movie, etc.) After this interview, the green card can be approved or denied. If it is denied, the foreign national spouse could be placed into removal proceedings.
Can the foreign spouse work while the adjustment of status application is pending?
It is possible to submit an I-765 application for an Employment Authorization Document (EAD) along with an application to adjust status. If approved, an EAD would allow the foreign spouse to legally work in the United States. If the applicant has submitted an I-765 application and their adjustment of status application has been pending for more than 90 days, they will automatically be entitled to an EAD. It is necessary to apply for a social security number in order to work lawfully.
Can the foreign spouse travel abroad while the adjustment of status application is pending?
Generally, green card applicants should not travel abroad while their application to adjust status is pending unless they have applied for and received an “Advance Parole” document. This application can be submitted on Form I-131 and included with the application to adjust status. Without Advance Parole, an adjustment applicant may be denied reentry and/or the adjustment application may be deemed abandoned. Even with advance parole, there may be some risk in traveling if the applicant has accrued unlawful presence in the United States or has other grounds of inadmissibility. It is a good idea to consult with an attorney before traveling abroad.
What’s the difference between lawful permanent residence and conditional permanent residence?
If a couple has been married for fewer than two years before submitting a spousal petition, the foreign national spouse will receive “conditional” permanent resident status following approval of their application to adjust status. This status is valid for two years. Ninety (90) days before this status expires, the conditional permanent resident must file a petition to remove the conditional status and become a “lawful” permanent resident. In this petition, the applicant will have to show that they are still married, and the couple may be asked to come into a USCIS office for an interview. If all goes well, the applicant will receive a permanent green card after this second round of adjudication. If the couple divorces before obtaining a permanent green card, it may still be possible to obtain the permanent green card but the foreign national must submit significant evidence about efforts they made to save the marriage (counseling from a therapist, clergy, family, etc.) in order to convince USCIS that the marriage was not solely for immigration purposes. PLEASE NOTE: If the conditional permanent resident does not apply to have the condition removed before their temporary green card expires, their legal status here also expires.
When can the foreign spouse become a U.S. citizen?
So long as the following requirements are satisfied, a lawful permanent resident with a U.S. citizen spouse should be eligible for U.S. citizenship through naturalization following three years of continuous residence in the U.S. as a green-card holder. The applicant must:
- Be at least 18 years old
- Remain married to their U.S. citizen partner
- Have been married and living with that same U.S. citizen partner for the past three years, and
- The U.S. citizen spouse must have been a U.S. citizen for the past three years
If any of the above conditions are not met, then the permanent resident spouse will be eligible to apply for U.S. citizenship through naturalization following five years as a permanent resident. Note that any time spent as a “conditional permanent resident” counts toward the overall continuous residence requirements, so long as the individual applied to remove the condition when they became eligible to do so. Thus, if someone spent two years as a conditional permanent resident and then successfully applied to remove the condition, that person should be able to apply for naturalization following one year in lawful permanent resident status.