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Immigrating Through a US Citizen Spouse

Immigrating to the U.S. through a US Citizen Spouse  


Many people obtain their permanent residence based on a marriage to a U.S. citizen.  Whether you are granted a 10-year permanent residence or a “conditional” 2-year permanent residence depends on how long you’ve been married at the time your green card application is approved or your immigrant visa is issued.  If you receive a Conditional Permanent Residence, you will need to take certain steps to “remove” these conditions.   


In order to remove the condition on the foreign national spouse's permanent residency, both spouses need to jointly petition to remove the conditions within 90 days before the second anniversary of the foreign national becoming a permanent resident.  Sometimes spouses cannot file to remove conditions jointly because the marriage ended in divorce or there was abuse.  In these cases, it is still possible for the foreign national spouse to apply to remove the conditions on their own, but with a request for a waiver of the joint filing requirement based on one or more reasons, including a good faith marriage that ended in divorce, abuse, or hardship to the foreign national spouse.   


With the exception of having to remove conditions on the conditional permanent residence, permanent residence is the same in all other aspects and carries certain rights and obligations.  For example, the foreign national spouse has the right to live and work in the US.  The foreign spouse is also obligated to reside in the US, update USCIS of his or her address change, avoid voting in U.S. elections, and of course steer clear of criminal activities.  These obligations are important because it is possible to lose one’s permanent residence under certain circumstances.   


1. Applying for permanent residence (adjustment of status in the US).  

This option is typical for spouses who reside in the US and are eligible to apply for adjustment.  The process typically starts with the filing of an I-130 family petition, an I-485 application to adjust status to permanent resident, and other forms and supporting documents (including a medical exam).  It is always important to consult with an attorney to make sure that there are no red flags in your history that might complicate your adjustment of status process. 

2. Applying for permanent residence (immigrant visa) through Consular Processing.  

The second scenario is typically used when the foreign national spouse is outside the United States. In this case, the U.S. citizen needs to file an immigration petition and request that the U.S. Citizenship and Immigration Services (USCIS) notify a U.S. Consulate in the country where his or her spouse lives. Once the immigration petition is approved, the National Visa Center of the U.S. State Department sends a forms and information package to the U.S. citizen. After the necessary forms are completed, the alien spouse goes to the U.S. Consulate overseas to apply for an immigrant visa. On the day that the alien spouse enters the United States on an immigrant visa, he or she becomes a U.S. permanent resident.

Sounds simple? If only it was so easy! There are countless "but did you check?" "but are you sure?" "but does this apply?" Always err on the side of caution as even the simplest cases can become unnecessarily and needlessly complicated.

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