FAQ Immigrant Visa for Spouse of Finace of U.S. Citizen

FREQUENTLY ASKED KNOWLEDGE BASED QUESTIONS

Know your Attorney

Samar Sandhu is the Founder and Managing Attorney of F4 India Law Firm, a boutique firm focusing on Marriage Green Card cases, investor immigrants and clients with extraordinary abilities. Samar Sandhu has been awarded many accolades for his work in Immigration Law. To learn more, visit our Face book page https://www.facebook.com/f4indiaconsultants/and google reviews.

Things you must know about Fiancé and Marriage Visa

Confusion, Worry and Stress. That is what we hear in the voice clients the first time they call us. Fortunately, these feelings are generally replaced by relief as we complete our initial consultation either in person or by video. The U.S. government, through its various agencies, is so afraid of fraud that it has created a complex system of redundant forms and processes before a marriage Green Card is granted. Along the way, many honest qualified candidates make mistakes that may not only cost them a Green Card, but also keep them from obtaining any future immigration benefits.

In general, most cases should be approved with no problems. But, given the huge volume of submitted applications, even a small percentage of mistakes and errors can land tens of thousands of Green Card hopefuls in hot water. Having witnessed so many innocent mistakes which ended up tearing families apart.

Here we are explaining the process and answering the typical frequently asked questions that are a daily occurrence at our firm, F4 India Law Firm.

Marriage Green Card and Fiancé Visa Processes by reviewing the initial forms and evidence required to prove the relationship, and subsequently the process of getting the Green Card while in the U.S. or abroad. We will also cover work permits, travel permission, Social Security Numbers, Affidavits of Support and what to do after getting the Green Card. We will discuss some common errors and potential issues; applicants may face while processing their marriage-based family petition. Here on this website you will find a to-the-point roadmap to understand the process and its required steps. Moreover, rules and regulations change frequently. For individualized legal advice from our attorney, you can contact us through email or direct call.

Frequent questions reviewed here:

  • Do I Need a Lawyer? How to Find and Choose the Right Attorney?

  • What are the Processes Timelines and The Visa Bulletin for Marriage based family petitions?

  • How much a marriage or Fiancé visa will Cost?

  • What all documents are required for marriage and fiancé visa?

  • Find out if you are inadmissible before filling Marriage or Fiancé Visa?

  • What is the Initial Petition (Form I-130 / I-130a) for Marriage-Based Cases?

  • What is the valid evidence of a bona fide relationship in marriage and Fiancé Visa?

  • What is the K-1 Fiancé Visa?

  • How to include your children in Marriage and Fiancé Visa petition?

  • File for the Green Card in the U.S. through Adjustment of Status (Form I-485) or outside the U.S. through the Embassy (Consular Processing).

  • How can a foreign national Beneficiary spouse in the United States, satisfies the criteria to adjust status?

  • Are applicants permit to file Employment Authorization Card (EAD) and Advance Parole (AP) requests along with the form I-485 Adjustment of Status?

  • Marriage based Family visa for a foreign spouse under Consular Processing.

  • Requirement of Affidavit of Support for family-based visa in both Adjustment of Status and Consular Processing.

  • How to prepare for your green card marriage Interview?

  • Interactions with the government after getting your marriage based green card.

Do I Need a Lawyer? How to Find and Choose the Right Attorney?

It is a personal decision of an individual whether to hire an attorney to help you in this process. The downside of not hiring an attorney is hours and hours of additional time working on a case, worrying about whether it is done correctly, the chance of the government rejecting your case due to easily-avoidable mistakes, getting denied or facing or causing huge delays which result in extended periods of separations for the couple, and delays in obtaining a work permit (and at worst finding a client inadmissible and banned from the U.S.). Statistically, most cases are approved, but the simple headache of doing this yourself is a major reason why couples choose to enlist the help of a professional.

If you do decide to hire an attorney, here are some factors to consider:

  • Try to talk to at least 5 lawyers: some may offer free consultations and, if you can afford it, also talk to at least two attorneys that have a consultation fee since by charging for their time, the attorneys will generally be more open and honest about your likelihood of success. Some free consults are used as a marketing tool to get your case and “close a sale” but the attorney may not necessarily offer sound or even useful advice.

  • How long have they been practicing law? Do they have experience with immigration law?

  • Is immigration (and in particular family/marriage cases) their focus? This is important because an asylum or deportation case is different than a marriage case. The same way that you’d want to go to a dermatologist, rather than a general doctor, for your skin problems, you will want to engage an immigration attorney specializing in your area of need, rather than a do-it-all shop.

  • How will they communicate with you (availability/access to lawyer as opposed to only seeing an assistant)?

  • Do they offer a retainer agreement? It’s important to sign a contract with your attorney which explains both sides’ rights and duties. The terms of the agreement (description of services, fees, etc.) are there to protect both you and the attorney.

  • Trust your instincts. If an attorney seems too good to be true, s/he probably is only telling you what you want to hear. The USCIS doesn’t work on favoritism and you’ll want an attorney who is a straight shot and points out the strengths and weaknesses of your case so you can work together in drafting your best application.

  • Are they active in the immigration law community (membership in field organizations such as AILA, teaching in the community or Law Schools, organizing events and having frequent speaking engagements)? This shows that they care about their craft and are keeping up with continuing education.

  • Do they thoroughly explain the process to you during a consultation? The law can be complicated but a good attorney should be able to break it down and answer any questions to your satisfaction

  • Do they listen to you? Are they polite and respectful?

  • Do they have good reviews and client testimonials? (Look them up on facebook page recommendation, Google Plus, etc.) Should you ask for references? Some lawyers may have references to previous clients. However, it is not clear whether you can rely on them to be truthful. Moreover, most attorneys may not be comfortable in new clients calling old clients about their case. Online reviews should suffice.

  • Did they give you a promise or guarantee? At the end of the day, your case will be approved by the government Officer, so it’s not ethical or even possible for an attorney to make any promises or guarantees as to the outcome of a case.

  • Don’t look for a bargain when it comes to your legal needs. A lower price generally means less attention, care or experience. At times, the best deal could just be a scam.

  • Do they breakdown the cost structure? Whatever this structure (flat fee / post hourly, separate charges for government requests for more evidence (typical of Trump’s administration), etc.), they should be able to clearly explain it so there are no surprises after you sign the contract.

  • Do they speak your language? Don’t necessarily go for the same ethnicity, but you should be able to communicate directly with your attorney as sometimes things get lost in translation.

  • SEE THE ATTORNEY – don’t just speak with them on the phone. If you can’t have an in-person consultation, ask for a video option

What are the processes, timelines and the visa bulletin for marriage-based family petitions?

There is no line for U.S. Citizen spouses (“Immediate Relatives”) to wait in, but the backlogs in the processing of cases by the government cause the delays in processing the case. However, spouses of Lawful Permanent Residents (“LPRs”) are considered to be in a Preference Category F-2A, which means that there is a numerical limitation as to how many of these Green Cards can be issued for such immigrants each year. As a result, a line emerges. Preference cases obtain their place in line (called the “Priority Date”) based on the date they file Form I-130, Petition for Alien Relative. They then wait for their case to become “Current” on the monthly changing chart issued by the Department of State. There are two charts here: the date you will be notified to begin providing the second step of additional documents for the case (the “Date of Filing Chart”). The date when a Green Card can actually be issued is called the “Final Action Date”. The Final Action Date Chart is the first one listed on the Visa Bulletin.

Note: Spouses of LPRs applying for a Green Card in the U.S. (Form I-485, Adjustment of Status) must visit the USCIS page to see if they need to submit the second step documents according to the Final Action Date Chart or the Date of Filing Chart.

The timelines in this process can vary greatly depending on the facts of your case and how

busy the immigration department is at that time. Here is a general review of how timelines work:

Marriage with Consular Processing:

  • Step 1 (USCIS I-130 Petition)

    • U.S. Citizen Spouse: 6-9 months

    • LPR Spouse: 8-15 Months

  • Step 2 (Consular Processing)

    • U.S. Citizen Spouse (Bureaucratic delays): 3-5 months

    • LPR Spouse (Visa Bulletin Delays): around 2 years (varies) after initial I-130 filing

  • Subsequently an interview occurs, and if approved, submission of the Green Card Fee and entering the U.S. The Beneficiary is able to work immediately upon entry with Green Card and Social Security Card arriving in the mail a few weeks to months later.

The individual Embassies and their “Administrative Processing” can cause additional delays as well.

Adjustment of Status (Form I-130 & I-485 Combo Package if an Immediate Relative or Current Or I-130 First then I-485 when Visa Bulletin is Current):

  • U.S. Citizen Spouse: varies depending on field office. Can be a few months to 2 years (rarely longer).

  • LPR Spouse: depends on when the case becomes current on the Visa Bulletin.

  • Work permit/Travel Permission/Social Security Number: between 2-8 months after filing.

  • Green Card normally comes in the mail a few weeks after approval.

K-1 Fiancé:

  • 3-9 months to initial petition

  • Few months to get a visa

  • Then Adjustment of Status time (after marriage and filing) that depends on the field office: 6- 24 months.

  • Can file for a Social Security Number upon arrival to the U.S.

  • Can file for a work permit after arriving on the K-1, but better to file it with the Adjustment of status Application and Travel Permission. Can take 2-8 months to get.

  • Cases can take longer based on Government delays.

  • Note that in some cases faster direct filing with the U.S. Embassy abroad is allowed (when the Petition lives abroad too).

  • Requests for Evidence (RFEs) can cause delays.

How much a marriage or fiancé visa will cost?

The Marriage Green Card process has various fees for different steps of the process for the Government, miscellaneous costs and the Attorney Fees (if hiring one). Here is a quick recap:

Government Filing Fees (as of May 2019)

  • Form I-130: $535

  • Form I-129f: $535

  • Form I-485: $1,225

  • Immigrant Visa Processing: NVC (Consular Processing): $445 (plus $325 per extra person)

  • Green Card USCIS Fee: $220 per person (if doing Consular Processing)

  • K-1 Fiancé Visa Processing: $265

Miscellaneous

  • If using INA 245(i): $1,000 per person

  • Medical Check-Up, Vaccines and Potentially an X-Ray or more: costs will vary

  • Translations of Documents (If applicable): costs will vary

  • Passport Photos: costs will vary

  • Police Certificate and Court Records: costs will vary

  • Any other potential documents depending on the case: costs will vary

Attorney Fees

These can vary greatly depending on the experience of the attorney, complications of the case, where you are in the country, the array of services you request and more. Please call or write to us to know a general estimate.

What all documents are required for marriage and fiancé visa?

Various documents are needed as part of this process and missing these will create delays at the least or denials at the worse. Only copies of documents should be mailed to government agencies (unless originals requested). Original documents should be taken and shown at in-person interviews.

  • Evidence of Bona Fide Relationship

  • Passport-Style Photos

    • For I-130: 2 of the Petitioner and 2 of the Beneficiary

    • For I-485: 4 of the Beneficiary/Applicant

    • For Consular Processing: varies depending on the Embassy and Medical Panel requirement.

  • Medical report and vaccines:

    • Consular Processing: see Embassy Documents or email us at info@f4india.com.

    • Adjustment of Status: see Civil Surgeon USCIS Webpage

    • Note regarding TB Chest X-Ray: not required in most cases unless:

    • TB Blood Test shows positive

    • From a country with high TB patients (for Consular Processing)

    • *Even Pregnant woman have to give the X-Ray – but can delay Green Card process until after delivery.

If you are 16 years of age and older you must submit the photocopy of a police certificate from all countries you have lived in using below criteria.
If you AND you THEN submit a police certificate from
Are 16 years old or older Lived in the country of Nationality for more than 6 months at any time in your life your country of nationality
Are 16 years old or older Have Lived in your country of current residence (if different from nationality)for more than 6 months Your country of current residence
Have ever lived in another country for months or more Were 16 years or older at the time you lived there The country where you used to lived
Were arrested for any reason,regardless of how long you lived in that city or country,and no matter what age you were The city and/or country where you were arrested.

Police Certificates/Court Records & Potentially Arrest Records A U.S. Police Certificate is not needed if the foreign spouse has a clear history If Adjusting Status: Records of any/all arrests and court records (from anywhere in the world) are required (better to have evidence of simple citations, such as traffic tickets as well). if Consular Processing: If you are 16 years of age or older, you must submit a photocopy of a police certificate from all countries you have lived in using below criteria:

Original Civil Documents

  • All Marriage and Divorce Records

  • Proof of U.S. Citizenship of the Petitioner (U.S. Birth Certificate, Consular Report of Birth Abroad, Naturalization or Certificate of Citizenship and/or U.S. Passport Bio Page)

  • Birth Certificate for the Applicant/Beneficiary (And all the Beneficiary/Applicant’s children’s birth certificates (for Consular Processing) and potentially to show relationship with spouse).

  • Adoption Records (If applicable)

  • Adoption Records (If applicable)

  • Embassy/country Specific documents: Check the Embassy requirements on their website or through NVC Linked PDF for that specific location4 and Check the Visa Reciprocity Chart5.

Find out if you are inadmissible before filling marriage or finance visa.

One of the most important initial issues is “Inadmissibility”. Before any Applicant starts the process, it is vital to see whether s/he is subject to “Inadmissibility.” Essentially, this review reveals whether there is any statutory reason the Applicant would be prevented from coming into the U.S.

Inadmissibility analysis is an essential part of what most attorneys must provide in any case. Although most cases may not have this issue, each case must be analyzed in detail. The basic rules for Inadmissibility are in INA Section 212 (8 USC Section 1182) and can include grounds such as:

  • Health-Related Issues

  • Criminal History (and certain drug charges for the Petitioner)

  • Security/Terrorism Related Issues

  • Economic Issues (Public Charge)

  • Illegal Entry and Other Immigration Violations

  • Document Issues

  • Foreign Policy Issues

  • Membership in Certain Groups such as the Communist Party

  • The Practice of Polygamy

  • Unlawful Voters and False Claim to Citizenship Issues

  • And More

An additional issue was added under the Adam Walsh Act that created severe hurdles for Petitioners (not just the Applicant) if they have had minor-related sexual convictions.

Each of these issues must be reviewed, but the most common ones are:

  • Previous Arrests or Convictions

  • Overstaying a current or previous Visa or Unlawful Entry into the U.S.

  • Prior Visa violations

  • Improper entry into the U.S. (unlawfully or without the proper Visa type)

  • Committing Fraud or Misrepresentation when trying to obtain an Immigration Benefit in the past.

Any of these issues can derail the process; however, there are possible “Waivers” available that can help clear the issues. If any of these issues exist in your case, consult with an attorney.

Once you have prepared the case, you can begin the Petition/Application process.

What is the initial Petition (Form I-130 / I-130a) for marriage-based cases?

The first step towards beginning a Marriage-Based Green Card case is the completion of Form I-130 (Petition for Alien Relative) and the additional Form I-130A (Supplemental Information for Spouse Beneficiary). The goal of these Forms is to show the U.S. Government that you are a real couple (“in a bona fide relationship”). If you are not married yet and wish to pursue a Fiancé Visa (K-1), the process is different.

The actual Green Card application itself is done later with Form I-485 (Application for Adjustment of Status) if the foreign national spouse is in the U.S. or through Consular Processing if they are outside of the U.S.

These Forms require a lot of detailed personal information about you and your spouse, including:

  • Residential History

  • Employment History

  • Family Information

  • Marriage History

  • And more

NOTE: You may see references to Form G-325a in various online forums. However, Form G-325a was discontinued and its questions were incorporated into Form I-130 and Form I-130a.

Form I-130 Petition Terminology:

  • Petitioner: The U.S. person (Green Card holder or U.S. Citizen) filing for their foreign spouse.

  • Beneficiary: The Foreign Spouse of the U.S. Petitioner.

You have to be very careful in how you answer the questions on these Forms because they will become part of the official record. Moreover, the Forms should be completed without any missing important information. If additional space is needed, the last page of the Form is there for this purpose. You are also able to add a separate Addendum page for more space.

Costs: The filing Fee for Form I-130 is currently $535.00. You will also need to submit two (2) Passport Style photos of each person.

Things to also include:

  • Marriage Certificate

  • Previous Divorce Certificates (If applicable)

  • Name Change Certificates (If applicable)

  • Proof of bona fide relationship

  • Evidence of the Petitioner’s U.S. Status (such as Front and back of Green Card or, if U.S. Citizen, unexpired passport bio page, naturalization certificate or birth certificate).

A few additional issues to watch out for:

  • Are you in a Proxy marriage?

  • Has the U.S. Petitioner ever been arrested for crimes related to Children?

  • Do you have enough evidence to prove the relationship is true/bona fide?

  • If the Marriage happens after an Immigration Court hearing begins, additional legal work is required (Consult our Attorney).

Is an Interview Required? Submission of Form I-130 sometimes requires an interview if the Beneficiary is in the U.S. Be mindful that if the Beneficiary is not in lawful status, there may be risks associated with attending the interview. Consult our attorney.

Where to Mail? The mailing location for the finalized Petition depends on where the Petitioner lives and if the Petition is a stand-alone or filed in conjunction with an Application for Adjustment of Status (I- 485).

NOTE: The decision whether to file the Form I-130 package alone or concurrently with Form I-485, Application for Adjustment of Status, depends on the specific facts of the case.

Once Form I-130 is filed, a “Priority Date” is given. This doesn’t matter for spouses of U.S. Citizens, but for spouses of LPRs, the Priority Date determines their place in the Green Card line. Once the Priority Date becomes current on the F-2A “Date of Filing” Chart, the case is current for submission of the Green Card Application (Form I-485 or Consular Processing). The Green Card can actually be issued after the F-2A “Final Action Date” becomes current. These Charts can be found on the most recent “Visa Bulletin” page of the Department of State.7 For Timelines.

Note: Sometimes I-130s take a long time to be adjudicated. The USCIS has created the K-3/K-4 Applications, for cases of U.S. Citizen spouses, to speed up their entry to the U.S. (if waiting outside). However, most I-130 cases are being adjudicated fast enough where this program doesn’t provide a benefit. As such, it is rarely used.

After submitting the Petition, the USCIS may sometimes ask for additional evidence or information through a Request For Evidence (RFE) which must be responded to within a fixed period of time. If a proper and timely response is not given, the Application can be denied.

The we will discuss the documents that can help prove that your relationship is real. For a discussion about the Children of the Foreign National spouse.

What is the valid Evidence of a Bona Fide Relationship, in Marriage and Fiancé Visa?

There are many essential parts to successfully obtaining a Green Card (Lawful Permanent Residency) based on marriage. However, the first thing that must be shown is that the relationship is real (bona fide) and not intended only to gain an immigration benefit

Applicants always ask how they can prove that their relationship is real? It really depends on the circumstances of your relationship. There is no guaranteed way to prove it but, by accumulating enough documentation and proof, most adjudicators will be satisfied with a reasonable amount of evidence.

Although having children together can serve as strong evidence to prove your relationship is real, not having kids is not a deal-breaker. By putting together, a complete and sufficient application, we have even had approved cases where couples had only recently met and married. Here are some documents to that can help you prove your case for more in-depth details you are welcome to contact us at info@f4india.com.

  • Joint utility bill accounts (internet, water, power, trash, etc.)

  • Joint bank accounts (active accounts with funds in them that are getting used)

  • Joint credit card accounts (that are getting used)

  • Photos together and with family/friends

  • Properly completed affidavits from family/friends

  • Communication records (printouts of your text messages, online chats, etc.)

  • Joint travel records (showing your flights, passport stamps, hotel receipt, etc.)

NOTE: You don’t have to submit original versions of these documents in the initial petition. Also, translations should be Certified.

Red flags: Just having one or two of the following issues is not generally a big deal but, if several are identified, the case may face additional scrutiny and require more documentation (which can delay processing):

  • Inconsistencies in the Forms or answers during an interview

  • Short term marriage (soon after meeting)

  • Married again quickly after divorce

  • The couple speak different languages (can’t communicate directly well)

  • Inconsistency in the couple’s story

  • Vastly different religious beliefs or cultures

  • Racial issues

  • Different socio-Economic background

  • Educational levels

  • Age differences

  • Not living together (if both living in the U.S.)

  • Hiding the relationship from the family/friends

  • Timing of the marriage (conveniently close to when the Immigration Status was needed)

If any of the above issues exist, you can work with an attorney to prepare documents and information to counter each issue and be prepared to explain the situation during the interview portion of the process.

NOTE: If the marriage happens after a Beneficiary is put in Removal (Deportation) Hearings, or if the Petition is submitted within 5 years of the Petitioner obtaining a Green Card through a previous marriage, a higher standard of proof is applied and the case may require a bona fide marriage exemption.

What is the K-1 Fiancé Visa?

The Fiancé Visa Process for those planning on marrying a U.S. Citizen who are not married yet. You cannot divorce your spouse to use the K-1 Visa.

Many times, a couple is not ready to be married for various reasons:

  • The relationship is new

  • They want to spend some time living together

  • They want their marriage to be in the U.S.

  • They received bad immigration law info and heard that the Fiancé Visa is the only or proper route

  • And more.

So, they turn to the K-1 Fiancé Visa (Form I-129f) option. Unfortunately, this option is not the best route for most couples:

  • It requires more legal steps, interactions with the Government and filing fees.

  • Moreover, once the foreign spouse arrives in the U.S., they have to get married quickly within 90 days. It is possible to get married after the 90 days, but then it becomes a regular I-130 based Petition.

  • Finally, a K-1 Beneficiary will need to apply for a work permit after arriving in the U.S. or apply for it with the Green Card Application after marriage. The work permit can take many months to be approved, leaving the foreign spouse without work authorization for an extended period of time. In the alternative, if they had married and entered with an Immigrant Visa (Green Card), they would have had employment authorization upon entry into the U.S.

Note: This option typically gets the foreign spouse into the U.S. a few months faster than if applying for a marriage-based Green Card. That is why some couples prefer this option.

To start, the K-1 Visa requires an initial Petition (Form I-129F) with a filing fee of $535.00. This is similar to Form I-130 and requires much of the same background information about the application and the relationship. Adding proof of the development of the relationship is helpful as well as disclosing previous divorces

There are four additional K-1 issues that are different than the I-130 Petition:

  • The couple must be able to document that they have met each other physically within 2 years of filing the application with rare exceptions for extreme cases that would prevent the meeting.

  • The K-1 requires the disclosure of the U.S. Petitioner’s criminal history which can create problems depending on the severity of the charges and the total number of charges.

  • Both parties must include a statement of their lawful ability and intent to marry within 90 days of arrival in the U.S. This is a simple letter but, in many cases where people do not use an attorney, the Application is denied for failure to include this simple letter.

  • And finally, there is additional legal work needed if a marriage broker was used.

The couple’s marriage has to be valid within the U.S. state the Petitioner lives in and where the couple will marry. Depending on the state, this can be an issue for same-sex couples, those that are marrying cousins, or if a partner is underaged.

After submitting the Application, the USCIS may sometimes ask for additional evidence or information through a Request for Evidence (RFE) which must be responded to within a fixed period of time. If a proper and timely response is not given, the Application can be denied. Most cases involving RFEs require an in-person interview at the local USCIS Field Office.

The K-1 Form I-129F is just the first step in this process. Upon approval of this Form, Consular Processing and an interview at the Embassy is needed. The next step is filing a USCIS Form I-485, Adjustment of Status, application as well as a potential in-person interview.

Note: The foreign fiancé can only adjust status and obtain a Green Card based on their marriage to the original spouse (and their valid Affidavit of Support, Form I-864). The foreign national cannot marry another spouse and obtain a Green card after entry based on the previous relationship.

How to include your children in Marriage and Fiancé Visa petition?

In both marriage and fiancé cases, the foreign national seeking Lawful Permanent Residency (Green card) may have children accompanying them to the U.S. There are various regulations in this area that can be confusing and vary depending on the type of application, the type of relationship with the child and when the relationship began:

If the couple is married and filing a Form I-130, unmarried children under the age of 21 can be petitioned for but please note the following:

  • If a U.S. Citizen Petitioner is filing, each child requires a separate Form I-130 and requisite fees.

  • If the children are step-children of the Petitioner, the U.S. Citizen and foreign national have to be married before the Children reach the age of 18 and need to have their marriage certificate ready.

  • If a Green Card holder is petitioning, one I-130 will include the spouse and children but each person will later need a separate Green Card application.

For I-129F Fiancé petitions (where the Petitioner is a U.S. Citizen), the children of the foreign national can be included on the initial petition as K-2 Beneficiaries as long as they are under the age of 21 at the time of entry into the U.S.

Additionally, please note:

  • Permission from the other parent may be required for the child’s custody with the immigrating parent.

  • Children born out of wedlock will require additional documentation to prove the relationship.

  • You may need to establish evidence of relationship between the child and parent (typically a birth certificate with parent names).

  • Adoption records may be needed.

  • In rare cases, a DNA record is needed.

  • Note that children are considered those under the age of 21. Sometimes the child may reach over this age while an application is pending which can cause them to not be included in the Application. There is a regulation to help avoid entitled the Child Status Protection Act (CSPA). Consult with our attorney if this scenario affects you., also visit our Child status protection act web page for more details.

File for green card in the U.S. through Adjustment of Status (I-485) or outside the U.S. through the embassy (Consular Processing).

One of the more complicated issues in this process is whether to file for the Green Card in the U.S. through Adjustment of Status (Form I-485) or outside the U.S. through the Embassy (Consular Processing). Part of this is based on the personal preferences of the Applicant, but a major part has to do with whether they satisfy the criteria for being able to even file Form I-485.

Note: For the K-1 Visa process, there is a lighter version of Consular Processing that must happen as well as filing for Adjustment of Status after being married in the U.S.

For Adjustment of Status, certain background criteria for the Applicant must be met according to the Immigration and Nationality Act (INA) Section 245. This includes:

  • Having a Visa ready. Those marrying U.S. Citizens automatically have this. Lawful Permanent Residents have to wait for their Priority to become current.

  • Not having disruption in status, unlawful employment and previous visa violations (Exception for spouses of U.S. Citizens).

  • Having entered the U.S. lawfully with evidence of that Admission or Parole (not including Alien Crewman).

  • Having Financial Support through a Sponsor

  • Not having other inadmissibility issues

If the Beneficiary is married to a U.S. Citizen, has entered the U.S. lawfully, does not have inadmissibility issues and the Petitioner (or Joint Sponsor) can financially support the beneficiary, they can Adjust Status (get a Green card), even if they are out of status or have done work or unauthorized employment without a work permit.

However, if married to an LPR:

  • The Beneficiary has to maintain valid status until the filing of Form I-485 (when the Visa Bulletin permits submitting this Form)

  • Previous Visa violations will prevent the Beneficiary from being able to Adjust Status in most cases.

This is why those married to LPRs normally will have to wait outside of the U.S. and do Consular Processing before getting the Green Card. The exceptions are if the Beneficiary is maintaining U.S. status with a student visa or a type of work visa, or happens to be in the U.S. on a tourist visa if they have entered with the intent to leave the U.S., but happen to change their mind and file the case when their Priority Date becomes current in the U.S.

Consular processing is possible for those that have some visa status violations, though if major inadmissibility issues exist, it could prevent the ability to finalize the process

In the past, Adjustment of Status was preferred since it allowed more protections for a Beneficiary. Consular Officers have a lot of discretion due to the principle of “Consular Non-Reviewability” which means it is very hard to overcome or review their decisions. However, current delays with Adjusting Status in the U.S. with USCIS and other domestic issue, has been making Consular Processing look better and faster in some cases.

How can a foreign national Beneficiary spouse in the United States, satisfies the criteria to adjust status?

If the foreign national Beneficiary spouse is in the United States and satisfies the criteria to adjust status, such as:

  • Lawful Admission or Parole (Not a Crewman)

  • Not having violated INA 245(c) such as:

  • Failure to Maintain Status (unless a Spouse of a U.S. Citizen)

  • Previous visa violations (unless a Spouse of a U.S. Citizen)

  • Other major inadmissibility issues or removal orders

  • Criminal history

The spouse of a U.S. Citizen can file Form I-485, Application for Adjustment of Status (normally with the Form I-130, or filed later). However, if the U.S. spouse only has a Green Card, the foreign national Beneficiary spouse has to wait for the Priority Date to become current. In such cases, they can file Form I-485 to request a Green Card based on their marriage which was shown in Form I-130 as a combo package. Form I-485 requests a lot of information including:

  • Security questions

  • Personal questions

  • Immigration history

  • Residential, work, family history and more

It is important to be careful about how the questions in this Form are answered as they will have serious consequences for the case.

The current filing fee for Form I-485 is $1,225.00 (plus Form I-130 Fee of $535.00). If minor children are included, they would need to pay separate fees depending on their age and submit their own Form. The mailing location for this combo I-130/I-485 package is on the USCIS website for Form I-485.

Along with this Application, proof of lawful entry (passport stamp) and the Passport bio page are needed, as well as the Applicant’s birth certificate (in addition to other documents for specific cases).

NOTE: If there is any arrest or criminal history anywhere in the world for the Beneficiary, you’ll need to submit the related documents. Depending on the charges, this history may or may not affect the case (consult with an Attorney).

NOTE: The Beneficiary of a pending Adjustment of Status Application case CANNOT TRAVEL until receiving the Advance Parole Travel Document (unless they have a valid H-1B, L, or K-3/K-4 Visas).

After filing Form I-485, the Applicant is in an authorized period of stay and is not required to maintain their previous status. However, it is recommended that the Application remain in status to be safe.

After submitting this Application, a Biometrics Appointment Notice will normally arrive by mail, asking the Applicant to appear for fingerprinting and taking photos. In some cases, additional evidence or information will be requested by the USCIS through a Request For Evidence (RFE) which must be

responded to within a fixed period of time. If a proper and timely response is not given, the Application can be denied. Also, most of these cases require an in-person interview at the local USCIS Field Office

Finally, along with the Form I-485, a request for a Work Permit (EAD) and Travel Authorization (AP) can be made .Submission of evidence of financial sponsorship or potentially the ability of the Applicant to sponsor themselves through Form I-864 is mandatory in most cases.The package also requires 6 (six) Passport Photos (two (2) for Form I-130 (if filing with Form I-130, two

  • for Form I-485 and two (2) for Form I-765) along with a medical-checkup & Vaccination Report .

Are the applicants permit to file Employment Authorization Card (EAD) and Advance Parole (AP) requests along with the form I-485 Adjustment of Status?

Along with the Form I-485 Adjustment of Status, Applicants are permitted to file Employment Authorization Card (EAD) and Advance Parole (AP) requests. After applying for Adjustment of Status, the Applicant is not allowed to travel outside of the United States’ Jurisdiction, unless they have a valid Advance Parole (and if they had valid H-1B, L or K-3/K-4 Visas). Note that travelling while on Advance Parole does not guarantee reentry, especially if the Applicant has a criminal history or other major issues

EAD

Having a history of unauthorized employment will prevent a marriage-based Applicant from Adjusting Status, unless they are Adjusting Status through marriage to a U.S. Citizen. But note the unauthorized employment could create other issues, for example, if the Applicant lied and claimed to be a U.S. Citizen to gain that employment or lied about it on previous USCIS applications.

Form I-765 should be submitted with the Application which will also provide for a Social Security Number. If a person is already in the U.S. on a limited work permit and then begins other different employment work with the new Marriage-Green Card Based EAD, then the previous Visa status and EAD will be invalidated.

AP

Form I-131 is used for various types of travel documents, including Advance Parole. Note that if an Applicant already has a Visa and leaves and reenters with Advance Parole, the previous Visa can be invalidated. Also, upon reentry with AP, you can expect Customs and Border Protection (CBP) Officers to request that the foreign national undergo additional inspection to review the validity of the grant of Advance Parole. This can potentially add hours of wait time before the Applicant is able to leave the airport.

In most cases, the EAD card will be issued with the Advance Parole Permission printed on the bottom left hand side of the card. The Social Security Card will be mailed to the Applicant as well if they requested it on Form I-765.

Submission of Forms I-765 and I-131 is not required, but recommended in most cases, and there is no additional fee for these Applications. However, another Application, Form I-864, is required for most cases.

Marriage based Family visa for a foreign spouse under Consular Processing.

When the foreign spouse does not live in the U.S., or has had issue(s) that prevented them from being able to Adjust Status to a Green Card in the U.S., they have to appear before a Consular Officer at a U.S. Embassy, usually in their home country, before obtaining a Green Card.

Many parts of this process are similar to Adjustment of Status, but are done in a different way. Here is a recap of the process:

  • A Form I-130 Petition Package must be submitted. Once it is approved, the USCIS will send the approved Petition to the Department of State.

    • You will soon after be notified to begin Consular Processing if this is a U.S. Citizen Spouse Marriage Case.

    • If this is an LPR Marriage case, the National Visa Center (NVC) will begin the process once the “Date of Filing” is current on the Visa Bulletin based on the case’s I-130 Priority Date.

  • The Department of State, through the NVC, will send the Petitioner and Applicant (if they have the email address) a notification to start the case one to three months after the Petition is approved for U.S. Citizen spouse cases or when the Date of Filing Chart is soon to be current for spouses of LPRs.

  • The NVC notification will include case log-in information where you can:

    • Submit the Fees ($445 Total)

    • Submit evidence of financial support (I-864 Package)

    • Submit Online Form DS-260

    • Submit Civil Documents

Most cases are now done by uploading documents online, as opposed to having documents mailed to the NVC.

This step requires a lot of documents and information such as the Applicant’s residential history since the age of 16, last 10 years of work history, military and police certificates (if any), Social Media handles, and potentially more information depending on the specific case.

If the NVC feels that the documents are incorrect or insufficient, they will notify the Applicant. Once the NVC is satisfied that all the necessary documents are submitted, they will coordinate with the U.S. Embassy to schedule an interview. The timing of this can vary depending on how busy the Embassy’s schedule is.

Requirement of Affidavit of Support for family-based visa in both Adjustment of Status and Consular Processing.

A key part in any family-based case is the Affidavit of Support, Form I-864. This is required for both Adjustment of Status and Consular Processing and is typically the most problematic area for those applying without enlisting the help of an attorney.

Every spouse Petitioner must submit this Form along with their most recent Federal Tax Return. It is a good idea to also submit evidence of current income, such as pay stubs. Those Petitioners that don’t make enough income or have enough assets can use a Joint Sponsor, but would still need to submit their own complete I-864 with evidence (even if their income is low). The minimum necessary income amount changes frequently and can be found on the USCIS website for Form I-864P.10 The required amount is based on the household size of the U.S. Citizen, which includes the foreign spouse, potential children, other dependent relatives and/or people that were previously sponsored by that person.

Note: Historically, earning an income above the minimum required amount was sufficient for approval of this criteria, but the Government is becoming stricter. If they deem the foreign Applicant as potentially becoming a “Public Charge”, the case can still be denied.

The goal is to show that the income revenue source will continue after the foreign spouse gets the Green Card, so that the Sponsor can continue to support. In essence, the Sponsor signs a contract with the Government which comes with responsibilities that cannot be waived easily (for example, prenuptial agreements cannot end the Sponsor’s responsibility). A thorough review of the Form is recommended.

There are other forms that may be necessary, such as Form I-864A if including the income of household members, Form I-864EZ for Sponsors with simplified income or Form I-864W if the intending Immigrant has exceptions to the sponsorship requirement.

Assets of the Sponsor or intending Immigrant can be used too. In U.S. Citizen Spouse cases, the assets should be three times the difference between the minimum income required and the amount of income the Sponsor earns on average for the last 12 months (with clear evidence). For LPR Spouses, it should be five times that amount.

For example, the minimum income for a household of 2 people (Petitioner/Sponsor and the Foreign National) is currently $20,575. If the Petitioner earns $5,575 per year, that leaves $15,000.00. Multiply that by three to get $45,000.00. Thus, the couple will need to show assets worth $45,000.00 that can be made immediately available within a year (with clear evidence of the ownership and value). When such additional legal work is needed, hiring an attorney is recommended as the rules are nuanced in this area and the Government frequently makes mistakes here.

Note: Asset-Based support is regularly found not acceptable by the USCIS or the NVC/Embassy, so having a Sponsor with regular income is strongly recommended. Moreover, self-employed Sponsors may have a difficult time as well.

Finally, there is a “Domicile” requirement that says the Sponsor must be living in the U.S. In some cases, they may permit the U.S. Citizen spouse to return to the U.S. with the foreign spouse once the Green Card is issued. It is typically recommended that the U.S. Spouse establish residence within the U.S. before submitting this Form.

Lastly, if the Government deems that you have not submitted sufficient evidence for this Form, an RFE may also be issued. Once the documents are accepted, most cases will receive an interview date.

How to prepare for your green card marriage interview?

Once all documents are accepted, an interview is normally done in the U.S. Almost always the presence of both partners is required. You can see which USCIS Field Office your interview will most likely be at on this site. In the case of Consular Processing, the country where the Beneficiary lives is usually where the interview will occur.

Before the interview:

  • Arrive 30-60 minutes early

  • Dress professionally

  • Discuss the details of your relationship history (with specific dates and events)

  • Discuss recent lifestyle routines

  • Bring original versions of all of the documents you’ve submitted

  • Bring updated relationship documents

  • You may need to bring the medical checkup and passport photos too.

  • If interviewing at a U.S. Embassy, review the Embassies webpage for any Embassy-Specific requirements.

At the interview

  • You will be sworn in

  • You will show your ID

  • The officer will review:

    • Relationship background

    • Factual information about each person

    • Potentially financial documents, and

    • Potential inadmissibility issue

After the interview:

  • The Officer can approve the case right then or soon afterwards

  • The case can remain pending months before a decision is made (if longer, contact an attorney)

  • The Officer can deny the case at the interview or later. If denied, may have a chance to appeal if in the U.S. Challenging an Embassy decision is very difficult.

Interactions with the government after getting your marriage based green card.

Once a case is approved, a Green Card will be issued. However, the interactions with the Government do not end at this point. Here are a few additional things you have to remember:

  • I-751 Removal of Conditions (CR-1)

If a marriage was less than two years old at the time of the issuance of the Immigrant Visa or Green Card, then it is only valid for two (2) years and, near the expiration date of the Green Card, the Green Card holder must file Form I-751 to remove the Conditions (limitation) of his/her Green Card. This phase is intended as a way for the Government to confirm that the marriage was real.

This Application can be submitted between one year and 9 months to two years after the start date on your conditional Green Card. Passing this date can lead to a notice to appear in Immigration Court for Removal (Deportation).

If the married couple is no longer together, a waiver can be requested to show the marriage was bona fide but just didn’t work out, there was abuse by the U.S. citizen or LPR spouse, or that going back home would cause extreme hardship. These waiver requests are complicated and the assistance of an experienced lawyer is recommended.

  • N-400 Application for Naturalization (Citizenship)

For those married and living with their U.S. Citizen Spouse, an Application for Naturalization can be filed as soon as two years and nine months after getting the Green Card. There are other requirements for Citizenship such as minimum physical presence in the U.S., not having extended absences and more.

Due to the current backlog at the USCIS, the I-751 Application may still be pending during this time. Fortunately, it is possible to file for Citizenship despite that.

  • Keeping Lawful Permanent Resident Status (Reentry Permit, six months out)

A Green Card holder should not spend too much time outside of the U.S. It is best to never be out for more than six consecutive months at most. However, this is not possible in some cases and so an Application for a Reentry Permit Travel Document (Form I-131) is recommended. This Application informs the Government of the need for an extended absence for a provided reason, allowing absences (if approved) for up to two years

  • Criminal Activity

The last major issue to remember (though there are many others) is regarding criminal matters. A Green Card holder can always have their residency taken away. A primary reason is for criminal issues. What exact criminal issues can cause this removal changes every day due to court interpretations of criminal

statutes. Suffice to say that the best thing to do is to not get into trouble and to contact an immigration lawyer (and criminal attorney) immediately if you do find yourself in the wrong place at the wrong time.

Also, although Marijuana is legalized in many U.S. states, it is still a federal crime to be associated with its use, sale or any other related activity. Foreign Nationals must avoid involvement with marijuana.

  • Updating the Government with New Address

Green Card holders must update USCIS with their new addresses within 10 days of moving. This can be done by accessing the online Form AR-11.12 The Financial Sponsor(s) should also update their addresses with the government as long as those responsibilities remain by mailing a completed Form I-86513 to USCIS.

  • Mistakes and Errors on the Green Card by the Government

Lastly, if there were any mistakes in the issuance of the Green Card, the Government has a 5-year window to reopen the Green Card case for review and cancellation. After that they will let the case be. However, the Naturalization Application opens up another opportunity for a secondary review. These reviews are generally rare, but as there are millions of people with Green Cards, even rare situations add up and Immigration Attorneys are regularly retained to help resolve these situations.

Conclusion

Applying for a Marriage-Based Green Card is a complicated and confusing process. Although many couples, who do not face inadmissibility issues or any other hurdles, may be able to complete this process on their own, having a close and continuous relationship with an immigration attorney is invaluable. Couples must be careful in choosing an attorney that gets to know their case intimately and can be trusted to provide prudent advice and be there for them, even after the completion of the initial process.

To schedule a consultation with the F4 India Law Firm, please contact us directly at: +91-8360104584 or Info@f4india.com


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