Spouses of a U.S. citizen or permanent resident may apply for a marriage based green card. To be eligible, you and your spouse must show:
• That you are legally married
• That your marriage is bona fide
• Proof of petitioning spouse’s U.S. citizenship or lawful permanent resident status, and
• That neither of you is married to anyone else.
- Legally Married
You do not need to have been married in the U.S. for the marriage to be considered legal. It’s acceptable to have been married in another country, as long as the marriage is valid in that country and an official record of the marriage can be obtained from a legitimate government agency. Note that both you and your spouse must have actually attended the wedding ceremony. “Proxy” marriages, where another person stands in for either the bride or groom, are not recognized by the U.S. government.
- Bona Fide Marriage
A bona fide marriage is defined as one in which two people intend to establish a life together as husband and wife. A marriage entered into the sole purpose of obtaining a marriage-based green card is not bona fide and is considered a “fraudulent” or “sham” marriage. To avoid fraudulent marriages, USCIS requires extensive documentation to prove that you and your spouse have entered into the marriage in good faith.
Proof of petitioning spouse’s U.S. citizenship or lawful permanent residence status
This can be evidenced through submitting your spouse’s U.S. passport, copy of naturalization or citizenship certificate, or copy of permanent resident card.
- Previous Marriages
Any previous marriages that you or your petitioning spouse has been in must have ended by legal means, such as death, divorce or annulment. You must submit documentation that proves the previous marriage ended, such as a death or divorce certificate.
- Conditional Residency
If you obtained your green card based on marriage to a U.S. citizen spouse, and your marriage was less than two years old at the time of the the approval of your green card, you will be issued conditional resident status instead of permanent resident status (the card will have a 2 year expiration date). This is due to rising concerns of fraudulent marriages, so issuing conditional residency allows USCIS a second chance to review the validity of the marriage. A conditional residence expires in two years; within 90 days before the expiration date, the immigrant must apply joint with the U.S. spouse for removal of condition the condition, which involves proving that the marriage is ongoing and supplying further evidence of establishing a life together. There are exceptions to the joint filing that is beyond the scope of this general discussion. If you have questions about this process, contact our office.
- Applying to Remove Conditions on Residence
To remove the conditions, the immigrant and U.S. citizen spouse submits a joint petition on Form I-751. Note that this must be submitted within a 90-day period before the conditional residence expiration date. To show that the marriage is bona fide and ongoing, the petition needs to be submitted with proof of the ongoing marriage, such as copies of joint bank accounts, joint leases or home ownership, birth certificates of children born to the marriage, and more.
If the marriage has ended, such as through death or divorce, it is possible for the immigrant to apply for a waiver of the joint petition requirement and submit Form I-751 by him or herself. If the immigrant has been battered or abused by the U.S. citizen spouse, he/she may apply for a waiver of the joint petition requirement at any time after becoming a conditional resident.