Please understand that this article is general in nature and does not substitute for legal advice on your particular case. This article assumes that your spouse is outside of the country not inside the United States. If your spouse is inside the United States you should visit our marriage green card page.
1. You are not required to be a United States Citizen. You do not have to be a U.S. Citizen if you would like to file a petition for your spouse. You may be a permanent resident (green card holder) and apply for your spouse. The wait though generally will be quite a bit longer. Wait times vary but currently green card holders should expect to wait at least a year or possibly much longer than U.S. Citizens for this type of case to fully process. Therefore, if you are a permanent resident, and you qualify to become a U.S. Citizen, you may wish to look into this option. You could apply for your spouse and also apply to become a U.S. Citizen. If your U.S. Citizenship is granted your wait time could be decreased substantially.
However, keep in mind, that a green card holder who applies for citizenship does put his or her green card on the line. This means that you can lose your green card if your citizenship case does not go well. The most likely reason is that the US Citizenship applicant has criminal issues which have come up since he or she obtained a green card. Many times USCIS is not aware of any criminal issues you have had since obtaining your green card until you apply for Naturalization. Once they find out about these problems they may take your green card from you. Not all past criminal problems would cause you problems if you were to apply for U.S. Citizenship. We can let you know if you will have a problem applying for U.S. Citizenship.
2. The U.S. Citizen or U.S. Permanent Resident will have to show she has sufficient income to support her fiance when he arrives in the United States. The poverty guidelines are put out by the federal government and they change every year. It is a rare case when our office cannot figure out a way for you to meet this requirement. Simply call us, free of charge about this issue. We are very likely able to help you.
The income requirement is not very high and it varies based on the size of your household. Your income must be at least 125% of the federal poverty line for your new household size. Count yourself in your household size. If it is just you and your spouse (no children involved) your household size will be 2. For example: In 2019, if your household size is 2 your income will need to be $21,137 or higher. This rate is higher if you reside in Alaska or Hawaii. Here are the income guidelines for your new household size for 2019.
If you do not meet the income requirement you may be able to use assets which you own to meet the requirements.
If you are unable to meet the income requirement you may get a co-sponsor to help you. Usually co-sponsors consist of close relatives and very good friends. You will be filing Form I-864 not the I-134 form. You will also supply: a bank letter (showing the amount you have on deposit with the bank, the date the account was opened and the total amount that was deposited in the past year); an employer letter on company letterhead which states that you currently work there, how long you have worked there, how much you make, what your job is, and whether the job is temporary or permanent); statements from your investment accounts and your last 3 years worth of federal tax returns.
3. You must be legally married to your spouse prior to filing the case. Sometimes I will receive an inquiry from someone who is in divorce proceedings and asks if he or she can file for a green card for their future spouse while their divorce is pending. The answer is No. You must be married, to your loved one who you are petitioning, at the time you file your petition. Do not file this type of petition with USCIS if you or your loved one has a pending divorce. This will not save you any time. On the contrary it will make your case take longer. My advice would be to also review any previous annulments or divorces with a family law attorney to ensure that you and your loved one are, in fact legally married each other. (Believe it or not some people believe that their divorce has been finalized when in fact it hasn’t been finalized. As a result they are still married to their “previous” spouse.)
It is much better to wait until you know, for sure, that your divorce is final, then to file your case prematurely and have it denied. If your case is denied do not expect to appeal the decision. Rather, you will need to start the whole process all over again.
4. Your immigrant spouse cannot have been convicted of certain crimes. USCIS will be looking at the criminal background of the immigrant spouse. The immigrant spouse must not have been convicted of a variety of crimes such as prostitution, money laundering, fraud, crimes of moral turpitude (a long list of various serious crimes) etc. Just to be safe, if your immigrant spouse has had any crime in your past then an immigration attorney should review the matter prior to you filing your marriage green card case. It is better to take the time in the beginning to clear up any criminal issues then to have them come up during the case. You should never lie to USCIS and you should expect them to know about your criminal history.
Also, if you have one, your immigrant spouse should be told about your criminal past. It will really hurt your case if, at the interview, your spouse has no idea that you were convicted of the crime in question. It will really make your relationship seem less bona fide and can lead to your case being denied.
5. Past Immigration Violations. Your spouse must not have violated U.S. immigration laws. He or she cannot have used fraud or any other illegal means to enter US in the past. In addition past immigration violations by your immigrant spouse can put the marriage green card process in jeopardy. These would include: violating student visa rules; entering the U.S. without a visa; overstaying a visa; working in the United States without work authorization. You can have our firm review the Immigration history of your spouse to make sure there will not be any issues in your case. It is much better to deal with these issues prior to filing the marriage green card case
Should I hire an attorney to work on my Spouse’s green card case? For a full discussion concerning this issue please read our blog article title: “What You Should Know Before You Hire an Immigration Lawyer.
Bonus Tips: Top 10 Reasons Why Your Marriage Green Card Case Can Be Denied.
Your spouse has violated the terms of his or her U.S. visa in the past. Overstaying a visa by more than 180 days for example can cause your spouse to not be able to obtain a fiancé visa for 3 years.
Not being able to financially support your spouse. You must show the U.S. government that you make 125% of the federal poverty level for this type of case. This is because you will be paying the U.S. government back in case your spouse gets government benefits. If you do not make this amount of money you may be able to obtain a co-sponsor to help or you may have enough assets to qualify.
Either you or your spouse having past criminal issues. Any past criminal matter should be evaluated by an Attorney, prior to filing, to make sure it will not cause the case to be denied.
You file your case when one of you is not free to marry. A case will be denied if it is filed early before you are legally divorced. Prior to filing you should make absolutely sure that all previous marriages, for both parties, are completely terminated.
Your social media makes it seem like you are not married. Your relationship status is unclear on your social media sites.
The paperwork you provide USCIS is incomplete. You may be given a Request for Evidence to correct this type of problem or your case could be denied. If you do receive a request for evidence (RFE) you need to timely provide the requested information or your case will be denied.
Not Telling the Truth on Your paperwork. Lying on paperwork can lead to very serious consequences. Simply do not do it.
Your spouse has a medical condition which could threaten public safety or is mentally ill or has a drug or alcohol problem.
The Immigration Officer has reason to believe that the relationship is not real. This may include a large age difference, limited visits between the parties, not speaking a same language or there being a short amount of time from the time of meeting to the time of applying for the green card for your spouse. It is important that your spouse know you very well and that he has a good interview.
Your spouse has a bad interview. Your spouse should know a lot about you in order to have a good interview. It may be embarrassing to you but tell her all about yourself, your past relationships and any criminal history. This way she will have a better chance of success.
If you have not yet gotten married to your loved one you may wish to consider filing a fiance visa. Only U.S. Citizens can apply for fiance visas. The main benefit to fiance visas is that they are almost always faster than the marriage route while your loved one is abroad. Currently fiance visas are taking about 9 or 10 months to process (2019 fiance visa processing times) If you are interested in considering a fiance visa please feel free to contact our office.
The information above is meant to be informational in nature and in no way takes the place of a consultation with an immigration attorney. The information is general in nature and may or may not pertain to your particular case. Always consult with an immigration attorney prior to filing any paperwork with USCIS.
Lawrence Gruner is an immigration attorney with over 25 years of experience handling fiance visa cases, marriage green card cases and U.S. Citizenship cases. His office handles cases in California, the United States and the World. He would be happy to talk to you about your case. He may be reached at 888-801-6558 or 916-760-7270. You may also email him at firstname.lastname@example.org