Comprehensive Immigration Solutions
Many U.S. citizens and lawful permanent residents (LPRs) of the United States marry citizens of foreign countries, and embark on the process of obtaining lawful permanent resident status, a green card, for their new spouse. The immigration process can be daunting. The right information and guidance can help streamline the immigration process.
Once you have married your foreign spouse, you are eligible to apply for their green card to allow them to live and work, permanently, in the U.S. The green card application process will vary depending on where your spouse is located and their current immigration status. If your spouse is in the U.S.,they may be eligible for a process referred to as “Adjustment of Status”. If they are not in the U.S., the process for their green card is commonly referred to as “Consular Processing”. The main difference between these processes, is that adjustment of status takes place in the U.S., and consular processing begins in the U.S. and ends with an interview at the embassy or consulate abroad. Each will be discussed below. It is important to note that there are differences in the processes discussed above, but the green card issued at the end of the road will be the same.
Once you and your spouse are married, you can immediately begin the green card process. Whether you use adjustment of status or consular processing, you will always begin with filing a petition in the United States. This petition has 2 purposes: (1) to verify that the Petitioner is either a U.S. citizen or a green card holder and (2) that your marriage is real, valid, and not just for immigration purposes.
When using adjustment of status, the petition can be filed concurrently with your spouse’s green card application, application for work authorization, and an application for travel authorization. If using consular processing, the petition must be approved before your spouse is permitted to apply for a green card.
Adjustment of Status Vs Consular Processing
With adjustment of status, the foreign spouse is permitted to remain in the U.S. during the green card process. In fact, your spouse will be able to receive work authorization and travel authorization while the green card application is pending. The typical time frame to receive work and travel authorization is approximately 6 to 9 months from filing.
With consular processing, the foreign spouse is abroad and does not apply for work or travel authorization while the green card application is pending. The initial petition, filed in the U.S., will take approximately 9 months to 1 year for approval. Once approved, the case will be transferred to the National Visa Center which can take 1-3 months to open a case. The immigrant visa application (green card application) is filed at the National Visa Center where the Beneficiary (foreign spouse) can also provide additional documents. The National Visa Center will “documentarily qualify” the case when all materials are received. When a case is documentarily qualified, it is ready to be transferred to the U.S. embassy or consulate located abroad. The U.S. embassy or consulate will schedule an interview, and the foreign spouse must appear at the interview in order to receive a visa stamp allowing them to enter the U.S. as a lawful permanent resident. Once in the U.S., they will receive the physical green card.
Today we will break down each process, in an effort to help you decide which approach works best for you and your spouse.
Need help with applying for a marriage-based green card? Contact Agarwal Law Group today for a consultation!
Factors that Can Impact the Green Card Timeline and Eligibility for Consular Processing or Adjustment of Status
The amount of time the Green Card Process takes, will depend on multiple factors. The following are some of the most common factors that impact how quickly or slowly the process unfolds:
- The status of the person filing the petition – is that person a citizen of the United States, or a lawful permanent resident (i.e. green card holder)?
- Is the Beneficiary (foreign spouse) in the U.S. in valid status or is the Beneficiary abroad?
- What is the current processing time for the service center who is handling the application and/or petition.?
- How backlogged is the embassy or consulate in your spouse’s home country?
- Visa availability (Visa Bulletin). Is the spouse an immediate relative, or a family member in a preference category? Spouses of United States citizens are considered immediate relatives and almost always have a visa available to them. Spouses of lawful permanent residents belong to a preference category, and have to wait until a visa is available to them to be able to complete their green card process.
What is Consular Processing?
When your foreign spouse lives outside of the U.S., or when your spouse lives in the U.S., but does not meet the requirements to adjust their status in the U.S., you must use consular processing to bring your foreign spouse to the U.S. as a lawful permanent resident.
Consular processing can take over 2 years and depends largely on visa availability. One reason for the lengthy process is that there are multiple agencies involved in consular processing: the Department of Homeland Security and the Department of State. As information is exchanged between these agencies, the process can be lengthier than adjustment of status. Using an experienced immigration attorney to help navigate this process, keep you updated, and help keep your case moving can stream-line your green card application process and can reduce delays.
First Step: The I-130 Petition
The I-130 is filed with USCIS in the United States. The I-130 is used to confirm that the U.S. spouse is either a U.S. citizen or green card holder. The I-130 petition also requires that the couple produce evidence that their marriage is real and not just for immigration purposes. The evidence submitted can vary depending on each couple and the nature of their relationship. It is important to consult with an immigration attorney to identify the strongest pieces of evidence in the relationship. Generally, the I-130 petition is approved in approximately 9 months to 1 year.
Related Links: H-IB Visa Application Process Updates
Second Step: NVC
Once the petition is approved the case will be transferred to the National Visa Center (NVC). NVC will assign a case and invoice number, so that you and your spouse are able to pay the necessary fees and upload the required documents and forms. Your spouse will also be required to complete an immigrant visa application which will focus on your spouse’s eligibility for a green card.
After NVC approves the documents and forms, it will documentarily qualify the case and place it in line for an interview at the embassy or consulate abroad. The amount of time it will take for an interview, will depend on the embassy or consulate’s availability. Receiving notice of an interview can take 6 to 9 months on average. Once an interview is available, the embassy will schedule an interview and provide additional instructions.
Third Step: Medical Examination & Biometrics Appointment
After your interview date has been set, the embassy will send instructions to complete a medical examination with an approved physician and to also complete a biometrics appointment. Some embassies will obtain biometrics on the day of your interview while others will require you to make a separate appointment. It is important to understand the specific requirements and procedures for the embassy or consulate where the interview will take place as missing an appointment or failing to complete all steps will result in delay or denial.
Upon completion of the required medical examination, the doctor will send a sealed packet of the medical records to the embassy or consulate. In some instances, the doctor will provide you with a sealed envelope containing your medical records and instruct you to take the packet to your interview. Please note that this packet should not be opened and should be sealed when provided to the consulate or embassy.
You will also complete a biometrics appointment prior to your interview. The embassy or consulate will obtain your fingerprints and photos in order to complete background checks.
Fourth Step: Interview
You will attend the interview on the date and time provided by the embassy or consulate abroad. Please note that only the Beneficiary (foreign spouse) is required to attend the interview. The U.S. citizen or green card holder spouse will not be a part of the green card interview.
The Beneficiary should be prepared for the interview before attending and bring all required documents. The Beneficiary will be asked about themselves, their relationship, their spouse, and any other questions that the consular officer feels is relevant to establish the Beneficiary’s eligibility and credibility. It is important to be truthful and know the details of your immigrant visa application. If there are errors in your application, you will have an opportunity to correct them at this interview. The Beneficiary will be notified if their visa is approved. If approved, the Beneficiary’s passport will be stamped with a visa allowing them to enter the U.S. as a lawful permanent resident within 6 months of issuance. Once the Beneficiary enters the U.S., they will receive the physical green card in the mail. Please note that upon entry, the Beneficiary is considered a lawful permanent resident and is allowed to live and work in the U.S.
What is Adjustment of Status?
When a foreign spouse is physically present in the U.S., and meets the necessary requirements, they are eligible to adjust their status to lawful permanent resident (LPR) without having to leave the United States. Current processing times for spouses of U.S. citizens is approximately 1 and a half years. For spouses of lawful permanent residents, this process can take over 2 years given that a visa is not currently available.
First Step: Petition and Adjustment of Status Application; Applications for Work and Travel Authorization
To begin the process, the U.S. citizen spouse or lawful permanent resident spouse must file an I-130 petition. If a visa is immediately available, the I-130 petition can be filed concurrently with several other applications including the adjustment of status application, the application for work authorization, and the application for travel authorization. Given that these applications can be filed simultaneously, the process can be faster than consular processing and the couple can begin their lives together while remaining in the U.S.
It is important to note that one must be eligible to apply for adjustment of status. Eligibility depends on various factors including (1) criminal history of the Beneficiary; (2) manner of entry; (3) maintenance of status and more. An experienced immigration attorney will assist you in determining eligibility for adjustment of status.
A significant benefit of using the adjustment of status process is the ability to receive a work permit, social security number, and travel document while the green card application is pending. These applications can be submitted concurrently with the application for adjustment of status and are approved, typically, within 6 to 8 months after submission. Note: your spouse should not leave the U.S. after filing the adjustment of status application unless he or she has received travel authorization. Leaving the U.S. before receiving travel authorization will result in an abandoned application.
Second Step: Biometrics
After submitting the adjustment of status and related applications, the Beneficiary will be scheduled for a biometrics appointment where the government will obtain photographs and fingerprints for a background check. The biometrics appointment is generally scheduled 5-7 months after USCIS receives the relevant applications.
Third Step: Medical Examination
If a sealed medical examination packet was not submitted with the initial application, the Beneficiary will receive instructions on completing a medical exam with an approved panel physician. The physician will provide a sealed packet with the results of the exam. The Beneficiary will either send the results to USCIS or bring them to the green card interview.
Fourth Step: Work Permit and Travel Authorization
Approximately 6 to 9 months after submission, the Beneficiary can expect to receive approvals for work and travel authorization. If a social security number was requested, the Beneficiary will also receive a social security card. Receiving a work permit will allow the Beneficiary to work anywhere in the U.S., legally. Upon receiving travel authorization, the Beneficiary may leave the U.S. without risk of abandoning his or her green card application.
Fifth Step: Interview
The final step in the adjustment of status process is the green card interview. The green card interview is usually scheduled within 12 to 18 months after the application is submitted. However, timing of the interview will depend largely on the availability of the USCIS field office where the interview will take place.
Unlike consular processing, both spouses are required to attend the interview. The interview notice will contain instructions on the required documents. The notice will also state the date, time, and location of the interview. The couple should prepare by reviewing their application and knowing important facts about their relationship and their spouse.
Unlike consular processing, the couple is permitted to have an attorney present for their interview. An attorney is extremely helpful in ensuring that the officer is following procedures, identifying helpful evidence that may have been overlooked, and clarifying questions. The attorney can also help prepare evidence for an appeal, if necessary.
If approved, the green card will be mailed about 2 weeks from the date of the interview.
Related Links: Workplace Enforcement And Raids
How Agarwal Law Group Can Help You
The process of obtaining a green card for your spouse can be overwhelming. An experienced attorney can do the following:
- Determine your eligibility for adjustment of status or consular processing
- Help prepare a complete and strong application
- Identify inconsistencies within your application and make clarifications, if needed
- Help identify obstacles and strategize on waivers or other evidence to balance negative factors
- Monitor your case to make sure it remains on track
- Prepare evidence in support of your application
- Prepare evidence requested by the government
- Communicate with the government on your behalf
- Help you understand the process and timelines
- Answer all your questions!
Hiring an experienced immigration attorney will help make the process smoother for you and your spouse.
For more information about obtaining a green card after getting married, contact us today to discuss your specific immigration needs and how Agarwal Law Group can help meet them.