To promote family unity, US Immigration Law allows US Citizens and Lawful Permanent Residents (LPRs/ Green Holders) to sponsor their spouses for marriage based Green Cards. A marriage based Green Card allows the recipient to live and work in the United States and, if they so desire and otherwise qualify, to eventually become US Citizens. The process varies depending on the specific circumstances of the case. In general, US Citizens and LPRs can apply for spouses who are currently inside the US, with a lawful entry, or outside the US. Spouses of LPRs must be in status to adjust status. Spouses of US Citizens may adjust status even if they have acquired unlawful presence. For the spouses of US Citizens, a waiver of unlawful entry may be possible. No such waiver is possible for spouses of LPRs. Adjustment of Status is further discussed below.

For spouse based Green Cards, people who attempt to represent themselves and, unfortunately, certain attorneys who “dabble” in immigration, often overlook a crucial step of the spouse based Green Card process. To qualify for a spouse based Green Card, the applicant must prove that the marriage is Bonafide.

What is a “Bonafide Marriage?” It is a marriage entered into for purposes other than to gain an immigration benefit. Do not translate this into a “Facebook Happy Marriage.” Real marriages are not social media perfect. Further, a Bonafide Marriage can be an arranged marriage or one that was entered into because of an expectant child.

How do we prove our marriage is real or “bonafide?” Evidence of a bonafide marriage is case-specific but, in general, can consist of the following:

• A showing of comingled finances
• Evidence of cohabitation
• Birth certificates or adoption certificates of any children and
• Pictures of the couple together and with each other’s family and friends
• Evidence of Communication
• Evidence of Joint Trips/ Vacations, etc.

Do not underestimate the importance of this step. Do not assume that USCIS will “know our marriage is real because it is obvious.” It may be obvious to you but certainly will not be to a USCIS officer who sees countless fraudulent applications. Contact us to avoid unnecessary delays; RFEs; NOIDs and denials.

Be aware that one cannot depart and then reenter, on a non-immigrant visa, with the intent to remain in the US. When one enters on a non-immigrant visa, they are making a legal promise to leave at the end of their authorized stay. Therefore, entering, on a non-immigrant visa, with the intent to remain, is immigration fraud. This can and does lead to denied entry; revoked visas; deportation and bans on re-entry.

Spouse Based Adjustment of Status

Adjustment of status through marriage is the process that an immigrant, who is already in the United States, must undergo to gain lawful permanent resident status (a Green Card) after marrying a US Citizen or an (LPR).

Adjustment of Status through marriage typically takes around a year if the spouse is a US Citizen, or 29–38 months if the spouse is an LPR. An LPR is a Lawful Permanent Resident or “green card holder.”

The EAD (work permit) typically arrives within 3-5 months but can be much longer depending on the individual office. Unauthorized employment is not a bar to adjustment of status for the immediate family members of US Citizens.

People often ask if their fiancé(e) or spouse may enter on a B Visa or ESTA and then adjust their status from within the US. The answer is, NO. When one enters on a non-immigrant visa, they are making a legal promise to leave at the end of their authorized stay. Therefore, entering, on a non-immigrant visa, with the intent to remain, is immigration fraud. It is the intent, upon entry, that is relevant. When one enters on a non-immigrant visa, their intent must be to leave at the end of their authorized stay. Entering with the intent to remain can and does lead to denied entry; revoked visas; deportation and bans on re-entry.

Travel while Adjustment of Status is pending:

Charity Anderson Law strongly advises against travel while the I-485 is pending. The I-131 Advance Parole document allows an applicant to leave the US while the applications are pending without having those applications considered abandoned. It does NOT guarantee reentry.

I-751 Removal of Conditions

It is important to note that if a spouse-based petition is based upon a marriage that is less than two years old, the spouse and any applicable children will receive two-year conditional Green Cards. Conditions must be removed in order to receive permanent (10 years) Green Cards. This is a crucial step in the process. If conditions are not successfully removed, your applicable family members will lose their status.