Understanding the Basics: Permanent Residency Through Marriage in the U.S. 

For many individuals living outside of the United States, obtaining lawful permanent residency (commonly referred to as a ‘green card’) can be a transformative opportunity. Among the various paths to acquiring a green card, marriage to a U.S. citizen or an existing green card holder stands out as a tangible option. This opportunity allows foreign nationals to reside in the United States with their spouses, exposing them to an array of educational and professional possibilities – a significant socioeconomic shift for numerous families. 

The first step in the process to sinusoidal marital bliss with immigration benefits is filing an application with the U.S. government. Either the U.S. citizen or the lawful permanent resident spouse initiates this process to establish a civil relationship with the foreign national spouse. It is a delicate dance of paperwork filing and legal formalities. 

Evidence of a genuine marital relationship becomes fundamental at this stage. The couple needs to verify their marriage through a series of proofs. This may include but is not limited to shared financial resources, cohabitation, joint ownership of assets, and photographs proving a shared, regular life – all for the purpose of eliminating any possible doubts about the sanctity of the marriage. The aim is to ensure that the marriage wasn’t entered into for the sole purpose of bypassing immigration laws. 

Furthermore, the foreign national spouse must meet specific eligibility requirements according to U.S. immigration law. These qualifications can vary widely, including aspects like clean criminal records, absence of immigration law violation history, and passing a medical examination. It is of utmost significance that a dedicated and diligent effort is made to fulfill these requirements, for they are integral to the application’s success. 

While the procedures for acquiring the legal status of a permanent resident through marriage to a U.S. citizen and a green card holder are strikingly similar, the two processes hold key differences primarily concerning processing times. Marrying a U.S. citizen often leads to a significantly shorter waiting period compared to marrying a green card holder. This difference is primarily due to the higher priority given to immediate family members of U.S. citizens, including spouses, in contrast to those of green card holders. 

Instances of processing delay, case backlog, and changing immigration regulations can further complicate these procedures, often making the ordeal seem labyrinthine. It is recommended to seek advice from an immigration lawyer or accredited representative experienced in family immigration law. Their guidance can be invaluable in navigating the complexities involved. 

Obtaining permanent residency in the United States through marriage, while involving meticulous paperwork and stringent requirements, presents a viable route for foreign nationals. Through this process, individuals have the opportunity to forge a new, promising life in the United States, united with their spouses and equipped with the advantages that come with being a lawful permanent resident. 

This realm of immigration law, brimming with both opportunities and intricate procedures, underscores the importance of ‘Understanding the Basics’. Fully gratifying these initial stages can significantly smoothen the journey towards achieving the American dream.   

Simplifying the Complex World of Family-Based Immigration: Understanding Immediate Relatives and Preference Categories 

Navigating the Maze 

One of the specific provisions of the U.S. immigration system allows U.S. citizens and lawful permanent residents (LPR’s) to sponsor certain family members for permanent residency. While family unification lies at the heart of these laws, navigating the immigration system can be complex and challenging. Here, we simplify two key concepts in family-based immigration: Immediate Relatives and Preference Categories. 

Category One: Immediate Relatives 

The ‘Immediate Relatives’ category pertains to the closest family members of U.S. citizens. As one case helpfully states, “Immediate relatives of United States citizens are not subject to either the numerical limitations per country or the worldwide level of total visas granted per year. They can apply for and receive a visa as soon as a petition is approved.” (Robinson v. Napolitano). Essentially, it means that these family members are prioritized. The cap that often restricts the number of visas issued per year does not apply here; acting as a golden ticket for a faster path to permanent residency. 

This privileged category includes: 

  • The spouse of U.S. citizens. 
  • Unmarried children under the age of 21, of U.S. citizens. 
  • Parents of adult U.S. citizens. 

Category Two: Preference Categories 

‘Preference Categories’, a separate track of immigrants includes more distant or independent relatives of U.S. citizens and certain close relatives of lawful permanent residents. These individuals undergo a slower process as the allocation of visas is based on a specific ranking system established by the Immigration and Nationality Act. As one court explains, the system determines annual limits on the number of visas available, because “annual demand for family preference visas often exceeds the statutory cap, beneficiaries may have to wait years before a visa becomes available, with some categories having longer wait times than others.” (Osorio. Mayorkas) 

It’s important to note that there are four main preference categories: 

  • F1: Unmarried sons and daughters over the age of 21, of U.S. citizens (Osorio v. Mayorkas) 
  • F2A and F2B: Spouses, Unmarried children (under the age of 21), and unmarried sons and daughters (over the age of 21) of permanent residents. 
  • F3: Married sons and daughters of U.S. citizens. 
  • F4: Siblings of U.S citizens. 

Understanding the Journey to Permanent Residency 

As you delve deeper into the labyrinth of U.S immigration policy, it’s essential to grasp that these categories determine not only the eligibility but also the timeline for obtainment of a green card. Immediate relatives usually experience swift progress due to the abstinence of quotas. Likewise, their path toward permanent residency is relatively straightforward, provided that they can adequately demonstrate a bona fide familial relationship and meet the necessary eligibility requirements. 

Contrastly, individuals falling under ‘Preference Categories’ must grapple with the possibility of a prolonged wait, contingent on visa availability. They too must present conclusive proof of a genuine family relationship and meet specific eligibility criteria. However, their journey is considerably more winding, considering the caps on visa issuance and the incumbent backlogs in certain categories.  For example, while a spouse of a U.S. citizen does not have to be in current active legal status when applying for their adjustment of status in the United States and only need to show legal entry to the U.S. when they entered. Spouse of a Legal Permanent Resident must show continues legal status until the day they file adjustment of status (which can only be filed when visas for their category becomes current). 

It is with these realities that potential applicants for family-based immigration must familiarize themselves. While the process may seem daunting, comprehensive understanding and strategic preparation can play pivotal roles in unravelling the labyrinth of these immigration laws. By discerning the complexity of Immediate Relatives and Preference Categories, one can navigate this convoluted journey with increased knowledge and confidence. 

Faster Processing Times

 As mentioned before, one of the main differences between the family-based categories, is the processing time.  

 There are numerous pathways to immigration and each presents its own considerations and procedures. Among the many options are family-based visas, which can be categorized mainly into two broad categories: Immediate Relatives and Preference Categories. Please note that this conversation is a general overview and does not cover all facts or circumstances that could impact an immigrant’s pathway to the U.S. 

Immediate relatives of U.S. citizens have a special priority in immigration proceedings. This category includes spouses, unmarried children under the age of 21, and parents of U.S. citizen petitioners 21 or older. There is no limit to the number of immigrant visas issued each year for immediate relatives, which means that they do not have to wait for a visa to become available. They will, however, need to submit separate petitions for each intending immigrant. For those in this category, the opportunity to apply for Naturalization (citizenship) comes after being a Lawful Permanent Resident (LPR) for three years. 

On the other hand, the Preference Categories involve a different process. This encompasses adult children (married and unmarried), and siblings of adult U.S. citizens, as well as spouses and unmarried children of Lawful Permanent Residents. Unlike immediate relatives, there is an annual limit on the number of visas issued per country under these categories. This means the processing times can be significantly longer due to substantial backlogs caused by demand outpacing supply. For instance, spouses of LPRs typically face an estimated 18-month wait just for approval of the family relationship application, prior to waiting for visa availability which is subject to annual limits by country. However, dependents of LPRs can apply simultaneously with the main beneficiary, avoiding separate wait times for each family member. 

An important consideration in the Preference Categories is that immigrants must wait a minimum of five years of being a Lawful Permanent Resident to be eligible for Naturalization. This is two years longer than the requirement for immediate relatives. 

In all immigration matters, it’s vital to consider the unique circumstances of your situation and to consult a legal professional for exact guidance. As always, staying informed is the key to a successful application and consult an experienced immigration attorney for specifics of your situation.  

Conditional vs. Permanent Residency

 There are two types of green cards an immigrant spouse can receive depending on the type of marriage they have, to a U.S. citizen or to a lawful permanent resident. The two types of green cards are the conditional residency and the permanent residency.  

Spouses of U.S. citizens receive a conditional residency, that initially is only available for two years.  

Spouses of lawful permanent residents receive a permanent residency available for ten years and can be renewed.  

 A spouse married to a U.S. citizen is typically granted a conditional residency if they file application before their second year marriage anniversary. This form of residency, as the name suggests, comes with certain conditions attached. Perhaps most notably, the conditional residency status is only valid for a stipulated period of two years. Though this seems relatively short-term, there is a procedure to ‘remove conditions’ at the end of this two-year period, thus enabling the recipient to transition into a more permanent status.  Applicant is eligible to file such removal of condition within 90 days of expiation of their conditional residency but cannot file after it has expired.  

On the other hand, immigrant spouses married to lawful permanent residents (LPR) generally receive what is known as permanent residency. This form of residency is initially valid for a substantially longer duration, usually ten years. This card comes with fewer stipulations and provides a sense of security and stability, by virtue of its longer validity period. Furthermore, the good news is that permanent residency status can be renewed, thus extending the validity period further in increments of 10 years. The catch is that spouses of legal permanent resident has to wait until visa numbers become available for them before they can file adjustment of status or attend their consular processing interview to receive their LPR status. 

While each type of residency comes with its own set of advantages and regulations, both provide a legal footing for non-citizen spouses, allowing them to live and work in the U.S.  It is worse mentioning that permanent residency for both situations allow for renewal. 

It’s critical to note though that compliance with all guidelines and immigration laws is essential to maintaining either type of residency. 

Financial Requirements and Affidavit of Support

USCIS requires the Affidavit of Support for family-based immigration, regardless of their category, to prove they have financial means to support and would not rely on U.S. government for financial support.  

U.S. citizens and lawful permanent residents have the same obligation for supporting their immigrant relative. The U.S. Petitioner must be 18 or older, and their income must meet the Federal Poverty Guidelines. They must support the immigrant spouse until Naturalization.  

The Affidavit of Support is a contract an individual signs agreeing to use their financial resources to support the intending immigrant named on the Affidavit. The individual who signs the Affidavit of Support becomes the sponsor once the intended immigrant becomes a lawful permanent resident. The sponsor’s responsibility usually lasts until the family member becomes either a U.S. citizen, or is credited with 40 quarters of work (usually 10 years). Divorce does not end the Affidavit of Support.  

Ability to Sponsor Other Family Members

As mentioned before, when becoming a lawful permanent resident or a U.S. citizen through Naturalization, you are granted the ability to sponsor other family members.  

After becoming a lawful permanent resident, or Green Card holder, you are able to sponsor unmarried children under 21 or unmarried children over 21.  

As a U.S. Citizen you are able to sponsor immediate relatives: unmarried child under 21, parents.  And Preference category of unmarried children over 21, married children and siblings.   

Rights and Benefits

 As a lawful permanent resident, you have the right to: 

  • Live permanently in the U.S. 
  • Work legally in the U.S. 
  • Be protected by all laws of the U.S., state of residence and local jurisdictions 
  • Not be deported to your country of origin, under certain conditions 
  • Sponsor other family members for a green card 
  • Travel in and out of the U.S. 
  • Receive Social Security and education assistance 
  • Own property and receive financial assistance 
  • Join the Armed Forces 
  • Participate in certain electoral processes, but you do not have the right to vote.  

 Common Challenges and Considerations

A common challenge a couple applying for a marriage-based immigration visa can face is proving an authentic or “bona fide” marriage. USCIS might conduct an investigation to confirm the realness of the marriage and request evidence. It is important that you provide documents with your application to prove your marriage is real. Some examples of these documents include: photos of the couple over time, proof of combined finances, proof that you live together, proof that you have children together, travel itineraries, emails or letters sent to each other, receipts of gifts for each other, etc.  

Another challenge family-based immigrants face is the delays in processing times and the priority dates according to their category and country of origin. The immigrants on the preference category have to wait years for their initial application and then wait for an immigrant visa to be available for them.  Since there is a limited number of available visas per year, some countries have a bigger backlog and less available immigrant visas. 

Some delays can also occur if there are any errors in the application or if additional information is required. It is important to know which documents are the best to include in your application so the process can go smoother. 

A great option to navigate the challenges you might encounter is contacting an immigration attorney to help you during the whole process.  

Choosing the Right Path

There are important factors to consider when deciding to marry a lawful permanent resident or a U.S. citizen. One of the main factors is of course the processing times and immigrant visa availability. Other factor to consider is whether the main applicant has dependents, like children, depending on the type of marriage you have, the requirements for applying for an immigrant visa for children are different.  Also, it is important to consider the foreign national migration status, since there can be eligibility problems if the person has worked illegally in the U.S. or has maintained an illegal status.  

An immigration attorney can help you choose the best path regarding your marriage situation, offer you options, and help you through the whole process. Since they have experience from previous cases, they can use that experience in your immigration process to help you and be able to respond better to any inconveniences.  

An immigration attorney can help you be certain that you are taking the best route to the fastest approval for your family-based immigration needs. Immigration attorneys understand and protect your rights.    

Conclusion

Marriage-based immigration has a very similar process, whether the U.S. spouse is a lawful permanent resident or a U.S. citizen, but the key differences can be seen in the processing times.  

Spouses of a U.S. citizen go through a faster processing time for their application since there is no limit in available visas. They receive a conditional residency, initially available for two years. Other family members, like children, require an individual application. The process for Naturalization takes three years.  

Spouses of lawful permanent residents undergo a longer processing time but receive a permanent residency available for ten years and can be renewed. Dependents apply together with the main applicant. The process for Naturalization takes at least five years.  

Immigration processes involve extensive paperwork and keeping up with timelines. Completing the forms and assembling the documentation can be confusing at times. Experienced attorneys know how the forms should be filled out and know what kind of documentation and evidence you need to build a strong case.  

The experienced immigration lawyers of MC Law Group provide professional legal counsel to individuals and businesses on immigration and other legal matters with an international focus. If you are in need of an experienced Las Vegas immigration attorney, the attorneys of MC Law Group are here to help.