Sure, we have lots of information on green card marriage on our site. But a great deal has changed in the past few years. Leading immigration attorney Carl Shusterman gives you the low down in his recent question & answer session with us on:

Getting a green card through marriage

Jennifer Wipf: Greetings. I'm about to turn moderation on, so you won't be able to talk to each other. But you may continue to do so after the official Q&A.

Please remember that all questions and answers must be considered as general, and replies cannot be construed as legal advice. Welcome everyone, welcome Carl.

Carl Shusterman: Hello everyone. When we had our first chat on About.com on September 20, 1999, it was entitled "'Til Death Do Us Part: Marriage and the Green Card." Now, during the past 3 1/2 years there have been a lot of changes in laws and procedures regarding obtaining permanent residence through marriage.

I hope in tonight's chat we can cover the basics and also some of the updated rules. So without further ado, let's get to the questions!

 

Question #1: What forms do I need to file with the USCIS (formerly INS, BCIS) for my petition? I came from the UK for a visit, married a woman I met 3 months later, now what?

 

Carl Shusterman: Here are some of the basic forms you will need:

 

Form I-130 is a petition for alien relative. You need to attach proof of your spouse's US citizenship (e.g. birth certificate, Certificate of Naturalization, etc.), your marriage certificate, and if there were prior marriages, the documents that terminated these marriages, (e.g. divorce decree, death certificate, etc.).

 

All documents submitted to the USCIS (formerly INS, BCIS) should be certified copies. I do not recommend that you send original copies to the USCIS. Along with this form, both you and your spouse need to submit biographic information forms with each of your pictures attached. Also, you should submit form I-485, an application for adjustment of status to permanent resident.

 

Subsidiary forms include form I-468 (ADIT), form I-765, application for employment authorization and, if you are eligible, form I-131, application for travel document.

 

In addition, your spouse needs to complete an affidavit of support (form I-864) on your behalf. The affidavit of support needs to be accompanied by your spouse's last three income tax returns. If your spouse does not make enough money to support you, there needs to be another affidavit of support submitted by a co-sponsor. These are the basic forms for receiving a green card through marriage in the United States. Depending on the facts of your particular case, other forms and documents may be required. But remember to include a check for filing fees, which are between $600-$700, when you file your application.

 

All of the forms listed above may be downloaded from http://shusterman.com/immforms.html.

 

Question #2: I filed with the INS and now it's the BCIS. Does this change or delay things? Do the waiting/processing times remain accurate?

 

Carl Shusterman: So far, the difference between the INS and the BCIS is just a change in name. The waiting times remain the same and may be viewed at http://shusterman.com/aos.html. These waiting times are not listed on the BCIS Web site.

 

Question #3: I am a US Citizen, married my husband in 1999. He was out of status in the US. He had entered without inspection. In 2001 my husband become a landed immigrant of Canada. He left the US and I filed for his papers. The visa petition got approved. He had his interview at the US Consulate in Montreal, where he was asked for a waiver for unlawful presence. My husband presented the waiver at the time he was asked. How long these waivers take to process? I just gave birth to our child and really need my husband to be here as soon as possible. What can we do?

Carl Shusterman: The amount of time that it takes a US consulate abroad to make a decision on an application for an immigrant visa varies widely. Where a waiver is involved, the consulate (which is part of the State Department), must forward the waiver application to the appropriate BCIS office (which is part of the Department of Homeland Security) for adjudication. It is always best to inquire with the consulate as to how long the process will take with a waiver for unlawful presence. It is better if this inquiry occurs before the person leaves the United States. However, in this case, you should call the US Consulate in Montreal in order to get the estimate of how long this process may take.

Question #4: My name is Zahir and I am US citizen. My birthplace is in Pakistan. I came to the States more than 6 years back. I got married in Dec 2002 in Pakistan, and applied for my spouse for regular immigration via I-130 then applied for her fiance visa I-129 in Feb 2003. When will she be able to come to the US? Or does I-129 not help in this case... please advise? Also I have the approval letter from INS and they have forwarded the case to Islamabad, now more than three weeks... but still no answer.

Carl Shusterman: Once you get married, you can either apply for permanent residence for your wife, initiating the process by submitting a form I-130 relative immigrant visa petition or, because of a law passed in 2000, you may apply for a temporary K-3 visa for your spouse and your spouse can adjust her status to permanent residence after she arrives in the U.S.

However, once you are married, the person you married is your spouse, not your fiance any longer. Therefore, you cannot obtain the approval of a K-1 fiance petition for your spouse. For more detail on this and other issues relating to green cards through marriage, see: http://shusterman.com/marriage.html.

 

Question #5: I am a US Citizen and last November, I applied for the 129F for my fiance who lives in Brazil. The Texas Service Center sent me a confirmation/receipt telling me that it would take 3 months to process it. Those 3 months expired by the end of February 2003 and I still don't have any answer. We have bought a new home in North Carolina, have the wedding date set up, but still can't do anything until BCIS processes it. Please advise.

 

Carl Shusterman: The Texas Service Center Processing Times Report as of April 30, 2003, is listed at http://shusterman.com/pdf/tsc.pdf. It indicates that I-129F petitions for fiances which were filed on or before November 6, 2002 are currently being processed. If the petition for your spouse-to-be was filed after November 6th, you need to keep updating yourself by following the processing time reports. We post these reports online on the same day that they become available. The Texas Service Center has tremendous backlog and I predict that things will get worse before they get better.

 

My advice is to make sure your fiance has all the needed paperwork for the interview in Brazil. That way, when the interview notice is finally received, you can minimize any further delays.

 

Question #6: I came to the US in 1992 on a student visa. I finished my graduation from the university in the summer of 2002. A few weeks after my graduation, I went to international office director to get my OPT (Optional Practical Training). He refused to issue the OPT since I was out of status because of not taking full load for fall 1997. Even when I requested that they issue me an I-20 for my graduate study (I already had an admission in graduate school.), they still refused it. So, I went to special registration without status on the last day of the registration. The BCIS Office told me that since I was out of status and didn't reinstate my status, I have to go back within a month. So I signed the paper that I would leave the US on May 25. The BCIS office also told me that I have to report him with my departure status by 15th of May. After I got back from the special registration interview, I planned to get married. So, I got married on the 8th of May. The same BCIS officer called my house last Friday to know about my status. I didn't reply to him yet. Now my question is, do I have to go back to my country (Bangladesh) even though I am married to an American citizen?

Carl Shusterman: I'm not sure what type of paper you signed promising to return to your own country. Generally, a person who enters the United States as a student, and later enters into a bonafide marriage to a U.S citizen is able to adjust his status to permanent resident without leaving the U.S. I believe this would apply in your case.

Question #7: I am in the I-485 stage (EB-based) and would like to know if it is still possible to add a spouse to the application?

 

Carl Shusterman: Yes!

 

Question #8: I got married with an American girl and 5 days before the interview, she just disappeared and not only she went away , but she also withdrew my petition , is there anything I can do? I already received a letter from the INS saying that my case has been denied due to withdrawn of petition... she's gone and she also doesn't want to get divorced? What kind of thing is this? Does the Law protect an American citizen for playing with people's lives like that? Please tell me what to do!

Carl Shusterman: I can't tell you what you can do without knowing more facts about your case, but I can tell you what you cannot do.

You cannot adjust your status based on marriage to a US citizen. Once the citizen withdraws the I-130 on your behalf, you cannot adjust through her. However, there is a limited exception, for battered spouses who may self-petition even after the I-130 is withdrawn. For more information about battered spouse petitions, see the alphabetical site map at http://shusterman.com/fr-toc.html and click on VAWA (Violence Against Women Act). This act applies to battered spouses whether they be female or male.

 

Question #9: I am a citizen and married 2 years ago. I applied for my wife's green card 2 years ago. We moved to Philadelphia from Tampa 20 months ago. We were told that the file has been transferred to Philadelphia in October, she was fingerprinted in December but no messages since. We went to the Philadelphia office several times. What should we do now?

 

Carl Shusterman: The waiting time in Philadelphia is currently only 270 days - see waiting times. Since your wife has been fingerprinted, your interview may occur very soon. If it does not, do a follow-up inquiry, or hire attorney to do so on your behalf.

 

Question #10: Last November I applied for an I-129F at Texas INS, but they stopped doing these due to a "TPS backlog processing emergency." My future wife's passport expires 25 August 2003. Texas INS says she can gets a K-1 visa even if they delay past her passport expiration date. We don't want to wait two years for a passport renewal to get married and get her here. Can an expired passport work for a K-1 visa? Can a K-1 visa be issued with only a little bit of passport time still left?

 

Carl Shusterman: The K-1 is a temporary, or non-immigrant visa. Generally, non-immigrant visas will not be issued unless the visa applicant's passport is valid for at least 6 months.

 

Question #11: I am an Indian citizen have been a green card holder for the last 2 1/2 years. I am not married yet but am planning to do so in the near future. I need to know how soon I can get my wife into the US. Is there some visa other than an H-B1 visa for which my would be wife would have to qualify and that restricts my choice of would-be wife! Please let me know the alternatives. Thank you.

 

Carl Shusterman: Your question brings up a very interesting issue: While citizens can bring their spouses to the United States and obtain permanent residence without any quotas, permanent residents cannot do the same thing for their spouses. The spouses of permanent residents are classified under the Family 2A category. Currently, a woman from India who marries a permanent resident must wait over 5 years outside the United States in order to be able to apply for permanent residence. See: http://shusterman.com/vb.html.

 

There are some solutions to this problem, the chief one being if your fiance is eligible for a non-immigrant visa, which is a "dual intent" visa, she may enter the US on a temporary visa even if she is married to a permanent resident. Other dual intent visas besides the H-1B include the following categories: E, L, O, and P.

 

Question #12: I am a Malaysian citizen. Currently my status is F-1 until August 2003. My boyfriend is a Filipino currently working in Malaysia. His parents petitioned for him in December 1989 in category 3 (for married sons & daughters) but he separated from his wife in 1995. We intend to get married. His priority date is current, but the US embassy in the Philippines has not called him for his interview yet. His parents have submitted the Affidavit of Support. My questions are : - 1) Can we get married & could I acquire the green card at the same time as him. 2) How much longer would he have to wait for the INS to call for him interview and the duration before he immigrates?

Carl Shusterman: Once your boyfriend obtains his divorce, you should immediately get married. He should notify the US embassy in Manila that he wishes to immigrate under the F-3 category as the married adult son of a US citizen and that he has divorced his first wife and married you. Once he immigrates to the US, you can immediately apply for adjustment of status.

Question #13: Hi I am an American citizen and I want to marry a Portuguese. We would like to have the ceremony in December and get the marriage license therefore in November. We will both be going to Portugal this summer. I am returning in August and my fiance is returning in November hopefully with the fiance visa. When do we need to apply in order to receive the fiance visa before the end of November? Is it easier to get married in Gibraltar and then apply for the permanent residency instead of applying for the fiance visa and then marrying in the US? If we did get married in Gibraltar would my fiance be able to come to the States within a few months of applying for the visa that allows him entry?

Carl Shusterman: The processing time for a fiance petition varies according to where you live in the United States.

There are four BCIS service centers located in California, Nebraska, Texas and Vermont. We list their processing times for various types of petitions and applications at http://shusterman.com/toc-sc.html. Click on the center which appears nearest to your residence and look at the processing times for form I-129F, a fiance petition. Also, we link to the BCIS (INS) Web site at
http://shusterman.com/ins.html. Make sure that the closest service center actually has jurisdiction over your residence.

 

Please do not try to time this exactly, but petition for your fiance well in advance. Delays happen. And although you could marry in Portugal, unless you have a job which allows you to stay there for several months, this is a recipe for separation of newlyweds, not a pleasant prospect.

 

Question #14: I applied for adjustment of status (marriage based) in October 2002 in Jacksonville, Florida. I have my EAD and advance parole but green card fingerprinting and my interview have yet to be scheduled. I am moving to Fresno, California in July. What can I do ensure a smooth transfer of my case? Would having an attorney involved in this process be of any help?

 

Carl Shusterman: Any time you ask for an application which is pending to be transferred from one office to another, you are asking for trouble. You can either hire an attorney, who will make sure that the file gets transferred or you can cut your losses and file a new application once you get the Fresno. Good luck.

 

Jennifer Wipf: Unfortunately, we've run into overtime, and it's time to let Mr. Shusterman go. Thanks everyone, thanks Carl. In a moment I will turn moderation off so you can speak freely amongst yourselves.

Carl Shusterman: Thank you for your questions. A transcript of this chat will be posted within the next few days. We will link to this chat as we do for all our previous chats at http://shusterman.com/toc-chat.html.