Marriage based green cards may be obtained in several ways for persons already in the U.S. depending upon marriage either to a U.S. citizen or legal permanent resident and depending upon whether he/she entered the U.S. legally or illegally.
Marriage to U.S. Citizen
There are several options:
Get married and immediately apply for a marriage based green card by filing a Petition for Alien Relative, and Adjustment of Status. For Adjustment of Status, if you entered legally into the U.S., you can be eligible for Adjustment of Status even if you are out of status (staying beyond the expiration of your current visa status). If you have overstayed, do not leave the U.S. or you would be barred from returning for 3 or 10 years, depending upon the length of unauthorized stay.
If you entered illegally, then you are not eligible to file for Adjustment of Status. However, you may be eligible to adjust status in the U.S. if an employer or family member filed an immigrant petition on your behalf either: before January 14, 1998, or between January 14, 1998 and April 21, 2001, if you can also prove that you were physically present in the U.S. on December 21, 2000. Additionally, if your alien relative did not file a petition prior to April 21, 2001, then you will have to file a waiver and move for consular processing.
You will also apply for work authorization document application along with your petition and request for Adjustment of Status. Many individuals receive their work permit after taking biometrics and before the Adjustment of Status interview.
With a marriage based green card your spouse will be required to accompany you to the Adjustment of Status interview. An attorney can also accompany you to the interview.
Marriage to Permanent Resident
There are options if you marry a permanent residence; however, fiancé visa is not an option. It is only available to the fiancés of U.S. citizens living outside the U.S. If you should decide to get married in the U.S., due to annual quotas and long waiting list, you will not be able to apply for Adjustment of Status for several years until priority date becomes current. Until then, you will not be able to legally live in the U.S. with your spouse unless you have another type of visa that allows you to stay the entire time.
Some options for those who marry permanent residence:
- If you entered the U.S. legally, you have never been out of status, you have never worked illegally in the U.S., and your priority date is current, you can file for Adjustment of Status;
- Stay in the U.S. illegally, hoping to do an Adjustment of Status in the U.S. when the priority date is current. You will be subjected to deportation anytime before the Adjustment of Status;
- If you leave the U.S. before you have stayed illegally for 6 months or more, wait until priority date becomes current, and go through consular processing; or
- If you leave the U.S. after you stayed illegally for more than 6 months but less than a year, then wait until priority date becomes current as well as a 3 or 10-year inadmissibility period (or apply for a waiver), and go through consular processing.
Marriage to U.S. Citizen Spouse
The spouse of U.S. citizen is considered an immediate relative and there is no priority date and waiting period. It is not advisable to wait until the spouse is a U.S. citizen to file the petition for a green card. It is better to get started as soon as possible when the petitioner has a green card, and if the petitioner becomes a U.S. citizen, it is easy to upgrade the petition. It is important to get in line as soon as possible.
If you need any assistance in obtaining your marriage based green card, please contact the attorneys at Gopal & Pedigo, PC. We are conveniently located in Nashville, TN near Briley Pkwy.