Many people assume that being married to a US Citizen or a Lawful Permanent Resident (green card holder) will allow them to get green cards as well. Fortunately, many people are able to become residents through marriage, but not everyone. This article discusses some of the common situations that might come up in these circumstances. Every case is different, though, and there’s no reason not to schedule a free immigration consultation to review a specific case.
Marriage to US Citizens often results in the simplest process. This is because the law provides several special benefits to spouses of US Citizens, including immediate visa availability, less strict rules about unlawful presence in the US as well as unauthorized employment, and the ability to adjust status even without lawful status.
Visas are available to spouses of green card holders immediately because they are classified as “immediate relatives.” Simply put, immediate relatives don’t have to wait for a visa (they do still have to wait for the government to process their paperwork). The downside is that they cannot include a derivative in their own application. This sometimes results in confusion when a US Citizen files a petition for a spouse but not their children. Including the names of children in a petition does not necessarily mean they are included as derivatives. Each immediate relative must have their own I-130 family petition.
Less strict rules also make the process more simple. The spouse of a US Citizen can get a green card even if they are unlawfully present in the US (typically by overstaying a visa), worked without authorization, and are not currently in lawful status. Spouses of residents don’t get these important benefits. This is not to say that all immigration punishments are forgiven against spouses of US Citizens, as there are many situations where a spouse might need a waiver or might be completely ineligible.
One common situation that can prevent a spouse from becoming a resident in the US is having entered without permission. In most cases, to adjust status and become a permanent resident, a person must show an entry with inspection and admission. They must usually present a visa or valid I-94 at the border and then be permitted to enter. If they didn’t they will want to review the options with an experienced attorney. Some people are eligible through the existence of an old petition, eligibility for Parole in Place for family of military members or veterans, and some other less common options.
If these exceptions don’t apply, most spouses need to consider consular processing, which involves finishing the process outside the United States. In many cases, people need to obtain a waiver before they can be given a visa and return to the United States as a resident. It’s always important to review waiver cases due to the risk of being stuck outside the US.
Another common situation is that a lawful permanent resident will marry and want to file for their spouse. These cases often get more complicated because spouses of lawful permanent residents are not given the same rules as spouses of US Citizens. The top problems are visa availability delays, unlawful presence, unlawful status, and unauthorized employment. One common strategy is to try and get the resident to naturalize and become a US Citizen, if eligible.
Spouses of residents are under the visa bulletin category “F2A” which is named after the section of the law describing the different categories. At this moment, F2A is current, meaning that visas are available already. In prior years, the delay has been around a two year wait. This means that people had to wait over two years simply for the visa, not to mention the other delays in immigrant visa processing. If there is a waiting period for the F2A category it causes lots of problems. For one, to apply for adjustment of status in the US, the visa needs to be available according to USCIS. Combined with the requirement to maintain status up until the time of filing, this prevents some people from becoming residents through adjustment of status.
Immigration violations can be very serious for spouses of permanent residents. US immigration law says that if someone has ever had unlawful status, or ever worked without permission, they cannot adjust status. This comes up frequently because many visas, such as a B-2 tourist visa, are only issued for six month intervals. Filing for adjustment of status without having a lawful status, or when in some quasi-status like a pending asylum application, can make the process challenging or impossible.
Fortunately, there are multiple ways to get a green card, and spouses who are prevented from adjusting status can often consular process in their home country. In some cases, the spouse will need a waiver. Some waivers can be pre-approved by USCIS to lessen the period of separation abroad.
One benefit to filing as the spouse of a resident is that children can be included. The F2A category allows for dependents, such as unmarried children under age 21. Sometimes, even children over 21 are allowed to continue under the Child Status Protection Act. This ability to include dependents can save some money since only one petition is required.
There are two options for becoming residents and this can be confusing at first. Many people choose to adjust status in the US, but in some cases consular processing is a better option. Additionally, adjustment of status is often unavailable, leaving consular processing as the only choice.
Adjustment of status has strict requirements that preclude many people. They can’t have entered unlawfully in most cases, which prevents many with DACA and many who were brought to the US as children from using it. It’s also a common issue for parents who have US Citizen children who are over 21, yet who entered without permission. Sometimes, immigration waivers are possible here.
Consular processing is usually not desirable but it is a reality for many cases. Additionally, some people prefer to consular process. The main reason is that adjustment of status doesn’t allow easy travel. USCIS is taking 5-6 months to even issue travel permits, meaning that someone has to stay put for that entire period of time or abandon their application by traveling. Consular processing allows frequent travelers to leave when they need to, but it can be hard to predict when the interview at the embassy or consulate will actually occur. Additionally, having left the US one might have trouble re-entering if they are considered to have immigrant intent. This is a common reason that entries are denied, because most nonimmigrant visas only allow temporary travel.
Consular processing is also a bit cheaper. For example, completing an adjustment of status under today’s prices for a spouse costs about $2,160 while consular processing costs about $1,725 (medical exams are the large variable here). USCIS price increases on October 2, 2020, will make the divide even greater. The difference is bigger for families. A resident bringing a spouse and two young children to the US will have to pay about $4,460 for adjustment of status, whereas consular processing would cost about $3,215. The main differences there are having to file multiple expensive adjustment of status applications versus relatively cheap visa fees, as well as medical exam prices being higher in the US.