June 6, 2011
Obtaining Permanent Residency Through Marriage to a U.S. Citizen
A foreign national who has married a U.S. citizen is generally entitled to apply for permanent residency. This process is known as “adjustment of status,” and it requires the cooperation of both the U.S. citizen as well as the foreign national spouse.
The U.S. citizen spouse will file a form known as “Petition for Alien Relative” with the USCIS, petitioning for the foreign spouse to become a U.S. permanent resident. As part of the petition, the U.S. citizen will also have to sign an affidavit of support, declaring that he/she will be financially able to support the Foreign national and that he/she will not be a public charge. In other words, the U.S. citizen spouse is declaring that he/she can support his/her spouse so that the spouse does not become a burden to society by way of collecting unemployment insurance etc.
The Foreign national spouse may concurrently file a form known as an Application to Register Permanent Residence or Adjust Status, seeking to change the foreign national’s current immigration status to that of a permanent resident. Depending on the foreign national’s situation, he/she may also apply for a temporary work permit or a temporary travel permit. These are optional, and should only be sought if the Foreign national is not currently on a valid work visa or anticipates that the work visa will expire before the green card is approved. The Foreign national will also have to get fingerprinted and undergo a medical examination by a designated civil surgeon to ensure that he/she is healthy - again, so as not to become a public charge.
Upon approval of the adjustment of status, the Foreign national will be given what is known as “conditional residency.” This means that the Foreign national will be a U.S. resident and will get a green card - with a caveat. The caveat is that the both spouses must jointly apply to remove the condition within the three months prior to the second anniversary of receiving residency, thereby turning the “conditional residency” into “permanent residency.”
Example: Johnny married a U.S. citizen in 2010. After filing all the paperwork, he received his conditional residency green card on January 1, 2011. He and his wife must apply to remove the condition of his residency sometime between October 1, 2012 and December 31, 2012 - since this is the three-month period just prior to January 1, 2013, which is the second anniversary of receiving conditional residency.
The rationale behind this process is to prevent non-U.S. citizens from entering into fraudulent marriages in order to obtain a green card. After all, many foreigners marry U.S. citizens simply to get a green card in order to stay and work in the country. The USCIS requires married couples to show that their marriage is still intact two years later in order to curtail such abuse.
Once the application for removal of the condition is removed, the Foreign national becomes a full-fledged U.S. permanent resident. Be careful though, as the Foreign national risks losing his/her residency if the couple forgets to remove the condition within the appropriate timeframe. So remember to mark the one-year and nine-month date of receiving conditional residency on your calendar.
What if I get divorced before the two-year anniversary?
It is common in this day and age for marriages to last fewer than two years (or even two months, for that matter). For Foreign nationals whose conditional residency has not been removed, this could problems with their immigration status. Generally, divorce terminates conditional residence. However, the Foreign national may be able to apply for a waiver of the failure or requirement to remove the condition if he/she can prove that the marriage was bona fide, entered into in good faith, and that he/she was not at fault for failing to file the joint petition.