Area of Law: USA Travel and Immigration
Answer # 1057
Marriage Based Green CardRegion: Ontario Answer # 1057
Sponsoring a spouse living in the USA
USA Citizens can apply to sponsor their foreign-born spouse through filing form I-130 with USCIS. In most situations, a foreign-born spouse already in the USA can submit the adjustment of status application forms (I-485, I-765, and I-131) at the same time as their spouse submits the I-130. The sponsoring spouse must also prove that they can support their foreign-born spouse by meeting certain minimum income requirements. If this is not possible, the couple will need to find a joint sponsor willing to affirm that they will be personally responsible for the foreign-born until that person becomes a citizen.
In some cases, the spouse may be eligible to apply for permission to work while the application is pending. The applicant must remain in the USA, but can also apply for permission to travel while the application is pending. Approval of the permission to travel and adjustment of status is discretionary.
The couple will be called for an interview at a local USCIS office before the green card is approved so that an officer can review the filing and bona fide nature of the marriage.
Sponsoring a spouse living outside the USA
For foreign-born spouses living outside the United States, the USA Citizen spouse can file the I-130 with USCIS, and after approval, the file will be transferred to the NVC (National Visa Center) for processing at the consulate of the foreign-born spouse’s choosing (generally in the country where they currently live). The applicant or couple will appear together at the consulate for an interview to review the filing and prove bona fide marriage.
In certain situations, if the foreign-born spouse would otherwise be inadmissible due to admission or criminal issues, marriage to a USA Citizen can overcome inadmissibility issues with the filing of a waiver and proof of extreme hardship to the USA Citizen. Waivers are case and situation specific.
Conditional Green Card
In situations where a USA Citizen and a foreign-born spouse have been married for less than two years at the time the green card application is made, the foreign-born spouse will receive a conditional green card valid for two years. The couple will need to file to remove those conditions (form I-751) no more than three months before the expiration of the conditional green card and before the card actually expires, to demonstrate the ongoing bona fide nature of their marriage.
Proof that the marriage is genuine
The spousal sponsorship application process involves documenting the genuine marriage relationship, as well as the family’s ability to live and support itself in the USA. If approved, the spouse member can reside permanently in the USA and work or study.
The relationship can be evidenced through a wide variety of documents which include but are not limited to:
- birth certificates;
- marriage certificate;
- engagement ceremony receipts;
- wedding ceremony receipts;
- letters or other forms of correspondence such as emails;
- receipts from travel;
- receipts from gifts;
- affidavits or letters from family and friends;
- shared finances;
- shared insurance policies;
- phone records;
- text message records;
- shared purchases;
- and other documents.
Proof that the couple can support themselves
The couple’s ability to support itself can be documented by the original affidavit of support as well as employment letters, tax returns, bank account statements and other documents. If the application is made from abroad, the couple must also demonstrate intent to reside in the USA.
The application process can take up to a year or longer, but well-prepared documentation can help avoid unnecessary delay. If approved, the spouse can reside permanently in the USA and work or study.
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