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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 can take less than 6 months (although this varies, depending on many factors). But delays can occur due to some of the following: FBI security background check; USCIS case backlogs; issues in an applicant’s personal immigration history; changing addresses without informing USCIS; postponing scheduled appointments; etc.
Immigrant Visa Processing (IV Processing) overseas averages about 12 months (varies depending on place of processing and other factors). During this time, a non-US spouse may have difficulty visiting the US if the couple does not already live together abroad. Few couples choose to go this route, since 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 non-US spouse’s lawful permanent resident status.
If a marriage occurred more than 2 years prior to green card approval, the US Green Card is permanent. The Lawful Permanent Resident (LPR) card itself is limited to 10 years, but the green card holder can renew it. That is, LPR status does not expire upon green card expiration.
However, if a marriage occurred less than 2 years prior to green card approval, the Green Card is conditional. It is valid for only 2 years. In this case, Conditional Green Card expiration does trigger expiration of Conditional Lawful Permanent Resident status. Such expiration may make the non-US spouse deportable. So filing a timely petition for condition removal is critical.
Scenario 1: You married on April 2, 2006. USCIS approved your marriage-based green card petition January 2, 2009. Length of marriage at the time of approval was more than 2 years. So your US resident status is permanent upon approval. The law imposes no condition. Your Green Card will be valid for 10 years.
Scenario 2: Your marriage occurred April 2, 2008. USCIS approved your marriage-based green card October 1, 2008. At the time of approval, the length of your marriage was 6 months. In this case, your Lawful Permanent Resident (LPR) 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 before 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 USCIS that the marriage was bona fide (real) until it began to deteriorate. (Note: living separately does not allow you to file sooner. You must also still file a joint petition with your spouse).