Marriage green cards: how spouses of U.S. citizens and green card holders apply

Wang Law Firm, LLC · David Wang, Managing Attorney

A foreign national who marries a U.S. citizen or green card holder can obtain U.S. permanent residence (a green card) through family-based immigration. The process comes down to two things: showing that the marriage is legal and genuine, not entered into for immigration purposes; and showing that the foreign spouse personally qualifies for a green card and has no inadmissibility issues.

A marriage green card needs no employer and no investment, but the review centers on whether the marriage is bona fide. The petitioner's status (citizen or green card holder), where the foreign spouse is now, and their past entry and status history all directly affect which route to take and how long it will take. For an overview of family-based categories, start with U.S. family immigration: who can petition for whom?

Spouses of citizens vs. spouses of green card holders

If a green card holder naturalizes while the case is waiting in line, the spouse's case can usually be converted to the immediate relative category and is no longer subject to the backlog.

Two routes: adjustment of status in the U.S. or an immigrant visa abroad

In the U.S.: filing I-130 and I-485 together

If the foreign spouse has lawfully entered the U.S. (was inspected at entry) and is eligible to adjust status, the I-130 (petition for alien relative) and the I-485 (adjustment of status application) can be filed together, along with applications for a work permit (I-765) and a reentry permit (I-131). The spouse can stay in the U.S. while waiting and can work once the work permit arrives. For eligibility and limits on adjustment of status, see Adjustment of status (I-485).

Abroad: consular processing

If the foreign spouse is outside the U.S., the U.S. spouse first files the I-130. Once approved, the case moves to the National Visa Center (NVC) to pay fees and submit the I-864 and civil documents, and then to an interview at the U.S. embassy or consulate in the foreign spouse's country. The spouse enters on an immigrant visa and receives the green card. This route doesn't require the foreign spouse to wait in the U.S., but couples usually live apart in the meantime.

A fiancé(e) can also first apply for a K-1 visa to come to the U.S. and marry; for a comparison of the two options, see K-1 fiancé(e) visa.

The risk of marrying after entering on a tourist visa

B-1/B-2 and other nonimmigrant visas require that you have no immigrant intent when you enter. If you entered on a tourist visa already planning to marry in the U.S. and apply for a green card, and didn't disclose that, you may be found to have entered through fraud or misrepresentation. This can lead to denial at adjustment of status and, in serious cases, a permanent inadmissibility finding. Under the State Department's consular guidance (the Foreign Affairs Manual), conduct inconsistent with the purpose of the visa within 90 days of entry (such as marrying and applying to adjust status) may give rise to a presumption of misrepresentation at entry. USCIS doesn't apply this presumption directly, but it does likewise examine the timeline and intent before and after entry.

Real situations are often more complicated: for example, the decision to marry was made only after entry, or the wedding date was set long before and disclosed truthfully at the visa interview. Whether there is a risk depends on the timeline around entry and the facts that can be proven; we recommend an attorney assessment before filing. For what a B visa allows, see B-1/B-2 visa.

Evidence of a bona fide marriage: a checklist

The officer is looking at whether the marriage really exists, not at the amount of evidence. Evidence works best when it corroborates itself and covers the timeline from when you met to the present. Common evidence includes:

• Living together: a joint lease or deed, utility bills in both names, driver's licenses or mail at the same address;
• Shared finances: joint bank accounts with real activity, joint tax returns (Married Filing Jointly), naming each other as insurance beneficiaries, and joint loans or credit cards;
• Life together: photos from different times and occasions (with family and friends, on trips, at the wedding), and flight and hotel records for trips together;
• Relationship history: WeChat or other messaging records (choose representative ones; you don't need to submit everything), and travel records of visits to each other;
• Other: children's birth certificates (if any), and affidavits from family and friends (as a supplement, not a substitute for objective evidence).

You'll also need the marriage certificate, both spouses' notarial birth certificates, proof that any prior marriages legally ended (a divorce decree or death certificate), passports, and visa and entry records. Chinese-language documents, for example, must have complete English translations with a translator's certification; see Translation requirements. A large age gap, a short courtship, no shared language, or a prior marriage-based immigration case doesn't mean the case can't be approved, but it does mean closer scrutiny and a need for stronger evidence.

The I-864 affidavit of support

The U.S. spouse must sign the I-864 affidavit of support as sponsor, showing household income generally of at least 125% of the federal poverty guidelines (the standard is lower for active-duty military members sponsoring their own spouse). If income is insufficient, assets can make up the difference, or a joint sponsor can sign a separate I-864. The sponsor usually must be domiciled in the U.S.

The I-864 is a contract legally enforceable by both the U.S. government and the foreign spouse. The obligation generally lasts until the beneficiary naturalizes, has worked 40 quarters in the U.S. (quarters worked by certain family members can be combined), loses permanent resident status and permanently leaves the U.S., or dies. Divorce does not end the obligation. Understand this before you sign.

Preparing for the interview

Most marriage green card cases require an interview, usually attended by both spouses. The officer reviews the forms and asks about how you met, the wedding, daily life and so on. To prepare:

• Both spouses should reread the forms already filed and make sure they match reality; bring updated documents for anything that has changed (address, job);
• Bring all originals and new evidence of life together (bills, tax returns and photos generated since filing);
• Answer truthfully; if you don't know or don't remember, say so instead of guessing;
• If the officer has doubts about the marriage, the spouses may be questioned separately, and inconsistent answers are a common source of problems;
• If you need an interpreter, arrange a qualified one as the notice requires.

After the interview, the case may be approved on the spot, you may receive a request for evidence (RFE), or the case may be held for further review. For handling RFEs, see How to respond to an RFE.

Conditional green cards and I-751

If you had been married for less than two years when the green card was approved (or when you entered on the immigrant visa), you receive a two-year conditional green card (CR-1, or the equivalent status through adjustment of status). Within the 90 days before the card expires, the couple must jointly file I-751 to remove the conditions, showing that the marriage has genuinely continued during that time. If it isn't filed on time, conditional resident status may end automatically.

The receipt notice you get after filing extends the validity of the green card for a period of time; you can work and travel with the receipt and the old green card. The length of the extension is as stated on the receipt notice.

If you can't file jointly, you can file I-751 on your own (except where the spouse has died, you generally also need to request a waiver of the joint filing requirement). Common situations include:

• The marriage was entered into in good faith but has ended in divorce or annulment;
• You or your child were battered or subjected to extreme cruelty by the U.S. spouse during the marriage;
• Termination of your conditional status and removal from the U.S. would cause extreme hardship;
• The U.S. spouse has died (you still need to show the marriage was genuine at the outset).

If you request a waiver based on divorce, you still need to show that the marriage was genuine at the outset, with evidence similar to a joint filing. How to proceed if the divorce isn't yet final depends on the specific timing.

Timing and costs

Filing fees, processing times and consular interview wait times all change; rely on what USCIS and the State Department currently publish. For how to check, see How to check filing fees and processing times, or go directly to the USCIS filing fees page and USCIS processing times. For medical exam requirements, see Immigration medical exams. In recent years there have been many policy changes affecting family-based immigration, such as public charge review and visa restrictions on certain countries; verify the latest rules before filing.

Common mistakes

• Thinking "a marriage certificate is enough": a marriage certificate only shows that the marriage is legal, not that it is genuine;
• Hiding past visa refusals, overstays or other marriages on the forms: concealment can itself be misrepresentation, which is more serious than the original issue;
• Thinking divorce ends the I-864 obligation;
• Leaving the U.S. during adjustment of status without a reentry permit (advance parole), causing the application to be treated as abandoned;
• Forgetting the I-751 filing deadline for a conditional green card.

Common questions

Related reading

• K-1 fiancé(e) visa
• Adjustment of status (I-485)
• Travel tips for green card holders
• Immigration glossary

This article is general information and is not legal advice. Laws and policies can change; rely on the latest official information and on an attorney's advice for your specific situation.