Marriage-Based Green Cards Part 1: Eligibility and Process Considerations

While many will pursue green cards through employer sponsorship, an alternative (and often faster) route exists: a marriage-based green card.

The first blog in this series explores eligibility, breaks down the process and highlights some key considerations.

Who is eligible for a marriage-based green card?

A foreign national married to a United States citizen or lawful permanent resident (LPR) may be eligible to apply for Lawful Permanent Residency (i.e., a green card).

Since Congress does not limit the number of green cards issued per year to those married to US citizens, the application is not subject to any visa backlogs the way many employment-based green cards are.

However, applications for those married to LPRs are subject to fiscal-year visa limits, which may lengthen the process. These backlogs also mean the process may be a bit different procedurally than for those married to US citizens. The procedure is also different for those living outside of the US as compared to those living in the country. 

Given these nuances, this blog focuses on the process for foreign nationals who are physically present in the US and married to US citizens. 

So, what is the first key requirement for this type of case? A legal marriage.

Here’s a quick rundown:

• • • Before individuals can apply for this type of green card, they must be legally married, and any previous marriages legally dissolved before this marriage occurred.
    • The marriage does not have to occur in the US as long as it is recognized by the government of the jurisdiction where it took place.
    • Foreign-language marriage certificates are not a problem so long as a certified English translation is provided as part of the application process.

What is included in the green card application?

Applying for a green card includes numerous forms and corroborating evidence—typically all submitted together in one package. Some of the documents in the filing relate to the US citizen spouse and some relate to the sponsored individual.

The US citizen’s section of the application includes:

• • • Form I-130: Immigrant Petition - This is how the US citizen spouse formally petitions for (or “sponsors”) the individual and demonstrates that the marriage is bona fide, meaning it was entered into for love and not for the purpose of obtaining a green card.
    • Form I-864: Affidavit of Support – This is how the US citizen demonstrates that the sponsored individual will not need financial assistance from the U.S. government (i.e. becoming a public charge), and if assistance is required, the government can seek reimbursement from the US citizen spouse.

The sponsored individual’s part of the application package includes:

• • • Form I-485, Application to Register Permanent Residence or Adjust Status asks detailed questions about the sponsored individual’s background (biographic, employment, criminal, etc.).
    • Form I-765, Application for Employment Authorization requests interim work authorization while the green card application is pending.
    • Form I-131, Application for Travel Document requests interim permission to travel while the green card application is pending.

All of this will be accompanied by supporting evidence, including a medical examination completed by a designated civil surgeon, proof of the validity of the marriage (such as the marriage certificate and any previous divorce certificates, if applicable), documents demonstrating financial stability, and evidence of the bona fides of the relationship, discussed in more detail below. This package of forms and documents along with the applicable filing fees are submitted to the United States Citizenship and Immigration Services (USCIS).

What are “bona fides”?

The marriage-based green card process had a recent change whereby USCIS started waiving the interview requirement in select cases. Previously, couples were required to attend an interview at a local USCIS office before the green card could be approved, but now it is common to see a case approved without interview.

To maximize the individual’s chances of getting the interview waived, it is more important than ever to provide sufficient evidence that the marriage is bona fide in the initial submission.  We call this evidence “bona fides.”

USCIS likes to see proof of the co-mingling of residence, finances and friends/family.  It’s good to think about the following categories:

• • • Joint residential documents: Utility bills, rent/mortgage receipts or invoices.
    • Joint financial documents: Tax returns, bank accounts and credit card statements.
    • Photos: Pictures together with friends and family document that the couple has introduced each other to the important people in their lives.
    • Other: Shared travel, beneficiary on 401(K) plan or life insurance, affidavits from friends and family, joint gym or museum memberships, even proof of owning a pet together could be helpful!

Many different types of evidence can be shown to document a relationship—there is not a one-size-fits-all list. The type of evidence available will differ depending on the couple’s specific circumstances. It can be helpful to work with an experienced immigration attorney who can advise on the types and amount of documentation that is likely needed to satisfy immigration for a particular case.

What happens next?

After USCIS receives the application package containing the forms, fees and evidence discussed above, USCIS will issue receipt notices as well as a request for the couple to appear at a USCIS support center in order to capture biometrics (fingerprints and photographs) which will be used to run security checks.

Timing for both the interim work and travel documents and the green card itself vary widely and are subject to change. For the best estimates, USCIS publishes average processing times for the various application types.

Preparing for an interview

As discussed above, currently, some marriage-based green card applicants are having their interview waived and thus the case is approved based solely on the paperwork submitted.

This could change over time based on varying government policies and priorities; therefore, since it is not possible to know at the time of filing whether an interview will be required, it is always advisable to be prepared in case an interview is requested.

If called for an interview, please note that each immigration office around the country will have slightly different procedures, but essentially need to be convinced:

• • • The sponsored individual’s identity and biographic information are accurate.
    • The sponsored individual is legally married.
    • The sponsoring spouse is a US citizen.
    • The marriage was not entered into solely for immigration purposes.
    • The sponsored individual is not likely to become a public charge.
    • The sponsored individual does not have any security or immigration violations that would make the individual ineligible for the green card.

Having the documents that prove each of the elements above must be brought to the interview and, because the amount of documentation can be voluminous, organization becomes very important. The reviewing officer will certainly appreciate a couple that can easily access the documents they brought instead of needing to constantly shuffle through papers during the interview.

Many officers like to start the interview by reviewing the sponsored individual’s original identity and civil documents. They are looking to see if your documents prove the basic elements of the case. While copies of these documents would have been provided in the initial application, officers will carefully examine the stamps/seals on the originals at the interview to make sure they are legally valid documents. Once satisfied, the interview can move forward.

The heart of any marriage-based Green Card interview is determining if there is a bona fide relationship. The officer is assessing if the couple married for love or just to obtain an immigration benefit. All officers have training, but they will also rely on their instincts and life experiences to assess the couple. The officer will talk to the couple and review documentary proof of the relationship.

There is not one set of questions that a couple can “study” before the interview to be prepared, as the types of questions an individual officer may ask will vary. However, it is common for questions to center on when and where the couple met, whether they have been introduced to each other’s families, and information to test if they know basic facts about each other.

In addition to questions about the relationship, the couple may also be asked questions about their income, as well as a number of security-related questions. It is always advisable to review the initial application forms (I-130, I-485 etc.) to be reminded of the questions contained within them—which are commonly asked again during in the interview.

After the interview: What’s next?

If the case is ultimately approved, a card (which is actually colored green) should arrive in the mail. A few things to note:

• • • If the couple has been married for two years or longer at the time the green card is approved, the sponsored individual should be issued a green card valid for ten years.
    • However, if the couple has been married less than two years at the time of approval, the sponsored individual will receive a conditional green card valid for two This means before the two-year period is up, the couple will have to submit updated proof of bona fides and file a petition to remove the conditions on the green card (Form I-751) in order to receive a ten-year green card. (If the marriage ends before it comes time to remove the conditions, the sponsored individual may still potentially have the conditions removed but will have to meet a higher burden of proof to demonstrate that the marriage was not entered into for immigration purposes.)

Ready to take the next step?

The marriage-based path to a green card is often faster and less complicated than most employment-based green card options and is typically a great option for those individuals who marry a US citizen.

Whether an individual is at the beginning of the process or preparing for the interview, it helps to have expert guidance. Attorneys at Fragomen are more than happy to assist and discuss your case, providing personalized support throughout the process.

Need to know more?

For questions regarding the US immigration system and the marriage-based path to a green card, please contact Partner Hyla Kaplan Rosenberg at [email protected] and Senior Associate Elizabeth Brettschneider at [email protected].

Stay tuned for Part 2 in this blog series for an overview of the I-751 process—the application to remove conditions on a conditional green card and upgrade it to a full, 10-year green card—to be published in the coming weeks.

This blog was published on December 10, 2024, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, X, Facebook and Instagram.