Important Questions to Consider When Applying for Green Card Through Marriage
Here is a non-exhaustive list of important questions to consider when applying for a green card through marriage.
- Is my spouse a US citizen or green card holder (Lawful Permanent Resident)?
Spouses of US citizens and green card holders go through similar, but not the same, process when applying for a green card. Spouses of US citizens, when applying for a green card, have a special immigration priority and are not required to wait for a visa number to become available. Instead, they are only subject to processing times (typically 3-4 months when applying for a green card domestically and 9-12 months when applying abroad).
Spouses of green card holders however are subject to a wait for both a visa number to become available and processing times. One can look under the F2A category under the current Visa Bulletin to determine their priority date, which is essentially their place in line. When their priority date is current, they may then file for their green card. At times, some couples choose to wait until the green card holder spouse naturalizes (obtains his/her citizenship) before applying for a green card for his/her spouse.
- Should I apply while I’m already here in the US or should I apply while in my home country?
There are some practical issues surrounding this question, like whether one needs to return home to possibly tie up loose ends (i.e.: inform their employer they will be leaving, sell remaining property, inform their landlord of their intent to terminate lease, etc.), but this question is particularly important in the legal context because of the possibility of there being preconceived intent (i.e.: the intent to abandon his/her residence abroad). Preconceived intent may become an issue when one enters the US under a nonimmigrant visa (ie: B1/B2, F1, TN) and later decides to obtain a green card through his/her marriage with a US citizen while here in the US.
Simple stated, one cannot have preconceived intent. If an adjustment of status (AOS; green card application filed domestically) is filed within 30 days of the individual’s arrival under a temporary visa, (s)he is presumed to have had the intent to abandon his/her residence abroad. If an AOS is filed between 31 and 60 days, there is a strong suspicion that the foreign national had the intent to abandon his/her residence abroad. USCIS may deny these applications if there is indication of preconceived intent.
Some individuals come to the US not thinking that they are going to get married, so their entire life is back in their home country, including their minor, unmarried children. One may choose to file while here in the US or abroad. If one chooses to file while here in the US, (s)he may claim his/her children as dependents during the process of obtaining a green card and later file to have the children go through consular processing so that they, too, will receive a green card of their own.
- Should I hire a lawyer to handle my immigration case?
Countless individuals file immigration applications and are successful, but there are many applicants who attempt filing on their own and their application gets denied or rejected and sent back. If denied or rejected, they should not expect to receive notice right away. This will happen after months of looking into the application and after sending a Request for Evidence. If sent back to the petitioner/applicant by USCIS, they should not expect to receive the application any time soon. That would be a miracle. We have heard stories of individuals waiting over 2 years for applications that should have only taken 3-4 months from start to finish if everything was done properly. Simply put, there is a reason why lawyers handle cases like this.
At the very least, do yourself a favor and speak with a lawyer so that you know if you might experience any issues along the way. Again, many individuals successfully obtain immigration benefits on their own, but if you would like peace of mind and find a lawyer you can trust, then you might want to invest in one. Cost is a huge factor for many individuals, but we try to work with people to find a fee that is agreeable for both sides. Do not hesitate to contact us about your immigration needs. Our Sacramento immigration law firm is here to help.
*The information provided in this post does not constitute legal advice or opinion. The information is for guidance purposes only. Individual situations vary and you should contact us for a consultation. Carson & Kyung, A Law Corporation on Important Questions to Consider When Applying for Green Card Through Marriage.