Obtaining a marriage-based green card is one of the fastest ways to obtain Lawful Permanent Resident (LPR) status in the United States. Same-sex spouses are now eligible for this process on the same basis as opposite sex spouses.
The choice of whether to process a marriage-based green card depends on various factors including US immigration history, criminal history, other eligibility under various applicable laws, and a couple’s particular personal or professional circumstances.
Note regarding same-sex couples seeking US immigration benefits via marriage: on June 26, 2013, the US Supreme Court overturned the federal Defense of Marriage Act of 1996 (DOMA), which prohibited the US federal government from recognizing same-sex marriages. For international same-sex couples, this means that a US citizen or US permanent resident can now file a green card application for a same-sex spouse.
Generally, a US Citizen or green card holder can sponsor a spouse for a marriage-based green card using one of two processes: Adjustment of Status if the couple both reside in the US, or Immigrant Visa processing if the non-US spouse resides outside of the US or has a temporary visa that does not allow the intent to remain in the US indefinitely (immigrant intent is the intention to remain in the US indefinitely; “dual intent” is the intent to either reside in the US temporarily or permanently; visa categories that allow dual intent include the H-1B visa and L-1 visa categories; visa categories that do not allow dual intent include the F-1 visa and the B visa).
The adjustment of status process in the US tends to be relatively quick, i.e., approximately 4-8 months. However, certain factors can create delays, including the FBI security background check; USCIS case backlogs; other factors in an applicant’s personal immigration history; changing addresses without informing USCIS; postponing scheduled appointments; etc.
Immigrant Visa Processing, on the other hand, averages about 12 months (this is subject to change at any time and varies greatly depending on which US Consulate is processing the application) during which the foreign spouse may have difficulty visiting the US if the couple does not already live together abroad. Very few couples choose to go this route, since the possible separation can be lengthy. However, such couples may have an alternative to reunite in less than 12 months, i.e., the K-3 visa for spouses of US citizens.
In an effort to reduce marriage fraud, US immigration law places a condition on the initial length of a foreign spouse’s resident status once s/he has obtained a Green Card through marriage.
For example, if the marriage occurred more than 2 years prior to the date the marriage-based green card application was approved, then the US Green Card status will be permanent upon approval of the marriage-based green card petition. The Green Card itself is limited to 10 years, but it can be renewed (Lawful Permanent Resident status does not expire with the expiration of the Green Card).
However, if the marriage occurred less than 2 years prior to the marriage-based green card approval, then the foreign spouse’s Green Card will be conditional and valid for only 2 years. In this instance, the expiration of the Conditional Green Card triggers the expiration of Conditional Lawful Permanent Resident status, which could make the non-US spouse deportable. Therefore, filing a timely petition to have the 2-year condition removed is critical.
Scenario 1: Your marriage occurred April 2, 2006, and your marriage-based green card petition was approved January 2, 2009. Length of marriage at the time of approval was more than 2 years. Your US resident status will be permanent; no condition will be imposed. The Green Card will be valid for 10 years.
Scenario 2: Your marriage occurred April 2, 2008, and your marriage-based green card was approved October 1, 2008. Length of marriage at the time of approval was 6 months. Resident status is conditional for 2 years and expires October 1, 2010. The couple must file a joint petition to remove the conditions on resident status during the 90-day window leading up to the October 1, 2010 expiration date of conditional residence. In other words, your joint petition must arrive at the appropriate USCIS office between July 1, 2010 and October 1, 2010.
If a couple divorces during the 2-year conditional period, the non-US spouse can submit a waiver of the requirement for a joint petition at any time during the 2 years. However, the applicant must still prove to the USCIS that the marriage was bona fide (real) up until it began to deteriorate. (Note: living separately does not allow you to file sooner, and you must still file a joint petition with your spouse).