How to Obtain the Green Card in the US Based on Marriage

April 16th, 2017

Those wishing to obtain legal permanent residency, or “green card” status, based on marriage should obtain legal counsel before filing for such status. Too many foreigners have made the mistake of filing the wrong type of case and subjecting themselves to a possible fraud finding, which can lead to a permanent bar to coming to or remaining in the US. There are two ways of obtaining legal permanent residency: (1) by filing to adjust status to legal permanent residency for those already in the US; and (2) to obtain an immigrant visa from a US consulate abroad after being interviewed by a consular official in a foreign country.

Most foreigners prefer to change their status in the US if they are already here, since the processing time to obtain an immigrant visa abroad can be long and the process of going through the US consulate abroad is burdensome. Most importantly, for those who are spouses of US citizens, the wait could be up to one year on average, and for those whose spouses are only legal permanent residents, the wait could be months, or even years longer, depending on immigrant visa availability. Also, if one must consular process abroad, he or she may be unable to enter the US in the interim on another type of nonimmigrant visa.

In order to adjust to change status to legal permanent residency in the US (Form I-485), the foreign applicant must show that he or she entered the US lawfully (inspected by a US border official) and that he or she did not enter the US with the intent to remain and obtain legal permanent residency if he or she did not enter using a nonimmigrant that allows for immigrant intent (such as the H-1B or L-1A or L-1B). In other words, a foreigner may not enter the US as a B-2 visitor or visa waiver entrant with the intent to remain in the US and get his or her green card status. This bar only applies if the US border official asked the foreigner his or her intent or purpose for staying in the US and the person lied.

If at the adjustment of status interview the US adjudications officer determines that the person entered with immigrant intent and misrepresented his or her purpose to the US border official, then a fraud finding will be made. If the applicant cannot obtain a fraud waiver, showing extreme hardship to a spouse or parent who is a legal permanent resident or US citizen, then his or her case will be denied and she will be barred from the US. The applicant can file the hardship waiver again, and that is recommended where circumstances change showing the extreme hardship. USCIS’ policy is to deny such hardship waivers where the qualifying relative would suffer the usual emotional hardship from the separation. It is critical to obtain as much evidence as possible documenting how such emotional hardship would be unusual and extreme, including an evaluation from a psychologist or psychiatrist and evidence of a prior history of depression, suicide or anxiety and any medical treatment followed. The applicant can also provide other evidence of hardship, such as economic hardship were the US spouse compelled to live abroad and lose the source of his or her income.