To sponsor a foreign-born spouse for lawful permanent residence (i.e. a green card), you must typically be at least 18 years of age and have entered into a legally valid marriage. You may sponsor your spouse regardless of whether you are a U.S. citizen or lawful permanent resident. Generally, whether a marriage is valid depends upon the law in the place where the marriage is celebrated. However, there are some marriages that are not recognized by the U.S. government regardless of whether they are valid where they were entered:
- Polygamous marriages (i.e. more than one spouses at time);
- Marriages that violate the public policy of the couple’s state of residence, such as incestuous marriages or child marriages;
- Proxy marriages unless you can establish the marriage has been consummated; and
- Marriages entered into solely for the purpose of evading U.S. immigration laws (i.e. to get a green card).
Regardless of whether you are a U.S. citizen or lawful permanent resident (i.e. green card holder), the process starts by filing a Form I-130, Petition for Alien Relative on behalf of your spouse. You must submit evidence of establishing your U.S. immigration status, you entered valid marriage in the place where it occurred, and you entered your marriage in good faith. It is not enough to simply submit evidence that you and your spouse are legally married. You need to submit evidence to show you entered the marriage with the intent to build a life together and not for the sole purpose of obtaining immigration benefits.
With an approved Form I-130, Petition for Alien Relative, your family member will be able to obtain lawful permanent residence (i.e. a green card) either through adjustment of status or consular processing.
ADJUSTMENT OF STATUS V. CONSULAR PROCESSING:
- Adjustment of status is the process through which you may apply for lawful permanent residence if in the U.S. Not all foreign nationals present in the U.S. are eligible to apply for adjustment of status so it is important to speak to an experienced immigration attorney before applying; otherwise, you may be placed in removal proceedings or have a prior order of removal reinstated. To apply for adjustment of status, you must submit a completed Form I-485, Application to Register Permanent Residence, required supporting evidence, and a Form I-864, Affidavit of Support Under Section 213A of the INA signed by your spouse.
- Consular processing is the process through which you apply for an immigrant visa if residing overseas. Upon entering the United States with an immigrant visa, you become a lawful permanent resident. To apply for an immigrant visa, you must wait for the Form I-130, Petition for Alien Relative to be approved and an immigrant visa to be available per the Visa Bulletin. You then submit a completed DS-260, Immigrant Visa Application, supporting evidence, and a Form I-864, Affidavit of Support Under Section 213A of the INA signed by your spouse. Once the visa application and all of the required documents are submitted, you will be scheduled for an interview at a U.S. Embassy or Consulate and if all goes well, an immigrant visa will be issued.