There are two ways for the spouse of a U.S. Citizen to obtain a green card via that relationship: adjustment of status in the United States or consular processing through a U.S. consulate abroad. It is important to note that only spouses of U.S. Citizens are eligible to apply for a green card under this category. For Green card holders who wish to sponsor a spouse, please see my separate article on that option.

People often contact my office asking if the time and place of marriage (inside or outside the U.S.) makes a difference to their spouse’s immigration status, ability to enter or remain in the United States while the green card application is pending. My answer is an emphatic YES. There are many important factors, including intention upon entry, processing times, unlawful presence and entering on the wrong visa that determine which process is the best for your case. Failure to analyze your case fully up front can result in denial and removal of the foreign spouse from the United States. For this reason, I highly recommend that the couple has a full consultation with a competent immigration attorney before getting married or embarking on this application process.

I have handled hundreds of marriage based cases, using both the adjustment of status and consular processing methods. My cases have included complex issues such as criminal arrests or convictions, unlawful presence in the United States, affidavit of support requirements, language issues and three or ten year bars. At both US consulates and local DHS offices in the United States, fraud inquiries are on the rise. I work very hard with my clients to ensure they can fully document the realities and legitimacies of their relationship, to minimize delay and stress while increasing the chance of approval up front.

Procedure when the spouse is already in the United States and filing for a Green Card via Adjustment of Status:

• The sponsoring spouse files the immigrant petition (I-130) and green card application with DHS. The applicant can also ask for work authorization and permission to travel internationally at this time.
• DHS processes the application. Within a few months, the applicant receives a fingerprint appointment and an order to pick up the work authorization/travel permit.
• DHS schedules an interview at the local DHS office. At the interview, the officer can approve the green card on the spot, ask for additional evidence or hold until the applicant’s security clearance and fingerprints have cleared with the F.B.I. Sometimes the DHS officer will schedule a second interview for the couple (a fraud interview). Where fraud claims are raised, DHS may also make a site visit to a couple’s home or place of employment.
• If the couple has been married under two years by the time of their DHS interview, the foreign spouse receives a green card that expires after two years. Directly before the two-year anniversary of that interview, both spouses must apply to have the conditions removed and the person will receive a permanent status at that time.  It is very important that this application is timely filed, or the person’s status terminates on the green card expiration date.
• If the couple separates after receiving the two year green card, he or she can still apply for a permanent green card, as long as the marriage was entered into in good faith. In this situation, there are very specific filing deadlines as the divorce must be finalized in order for DHS to approve the permanent green card. It is important to speak with your attorney immediately if a divorce is imminent.

Procedure when the spouse is abroad and filing for a Green Card via Consular Processing:

• The sponsoring spouse files the immigrant petition (I-130) with DHS and requests consular processing for the foreign spouse. This process currently takes about 5-6 months.
• DHS forwards the petition to the National Visa Center for security checks and other processing. Essentially, the NVC acts as the secretary for all US consulates around the world. This agency is very disorganized and processing times are inconsistent. I review and organize documents carefully in an attempt to streamline processing through the NVC
• The NVC forwards the petition to the U.S. Consulate in the spouse’s home country. Processing times vary by consulate. The interview normally happens within 1-4 months after file transfer.
• The spouse goes to interview and is processed for a green card upon entry to the United States

I have successfully obtained green cards for complex marriage cases, with out of status issues, prior separations and prior marriages to U.S. Citizens.  Additionally, I work carefully with clients to ensure that the case is processed as quickly as possible, all questions are answered and all issues addressed in a clear, concise manner.  Via these efforts, many of my clients, particularly in consular processing cases, are able to save months of valuable time and to be reunited with their spouse much sooner than anticipated.

If you think you need a lawyer to handle your immigration case, please contact Ms Troy to arrange a consultation to discuss your options. Located in San Francisco, Immigration Attorney Christine Troy can help guide you through the various legal processes and resolve any issues regarding your case. Ms Troy works on cases in San Francisco, the San Francisco Bay Area, Northern and Southern California, across the United States, and internationally.