If you are a U.S. citizen or a Lawful Permanent Resident who is seeking to sponsor your husband or wife for a permanent residency (Green Card) or planning on getting married to a foreign national in the near future, naturally you may have a plethora of questions. My name is Vivid Niroula and I am an immigration attorney based in OKC. My passion is helping people like you navigate the immigration process by advising the best course of action under the circumstance, getting the process started promptly, filing the necessary paperwork, and working diligently to avoid unnecessary delays or denials.

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I have compiled several questions that tend to come up frequently during a spouse sponsorship process and answered them briefly. Please note that these answers are not meant to serve as a detailed explanation of the topic, but rather brief snippets on recurring issues based on my personal experiences. Every immigration situation is unique and may have facts that need special attention or deeper scrutiny, therefore it’s recommended to consult with an immigration attorney to ensure a correct and complete filing of your petition.

What are the requirements for sponsoring a spouse?

Under U.S. immigration laws, a citizen or a lawful permanent resident may sponsor his or her spouse for their permanent residency (green card). Regardless of whether you are a citizen or a lawful permanent resident, the filing process and the requirements to file for your spouse are substantially the same. You can apply either using a paper-based application or online by creating an account on the United States Citizen and Immigration Services (USCIS) website.

Generally speaking, if you are a U.S. citizen or a lawful permanent resident, and would like to sponsor a spouse for his or her green card, you must:

  • Complete and file the petition, Form I-130, and have your spouse complete & sign Form I-130A, pay the required fees,
  • Have your spouse complete and file the adjustment of status, Form I-485, and pay the required fees; if the spouse is physically present in the U.S.,
  • Have your spouse appear for the biometrics appointment at a local USCIS-authorized Application Support Center (ASC); if the spouse is physically present in the U.S.,
  • Appear for an interview along with your spouse at a local USCIS field office, if an interview is required,
  • Submit necessary documents, and pay the correct fees to National Visa Center (NVC), as required for consular processing; if the spouse is not physically present in the U.S.
  • Have your spouse appear for an immigrant visa interview at a U.S. consulate abroad.

If you and your spouse are married for less than 2 years at the time the green card is issued or an immigrant visa is granted, you will receive a conditional green card. A conditional green card is valid for 2 years. You and your spouse must file a joint petition to remove the condition from the green card, a Form I-751, within the 90-day period before its expiration.

Can I sponsor a spouse who is currently in the U.S. on a student visa (F1) for a green card?

Yes, you may petition to sponsor your spouse for his or her green card who is currently in the U.S. on a student visa (F1), provided that the marriage is a bona fide one. You can file Form I-130 with the USCIS on behalf of your spouse, who may be attending a college or university in the United States.

After the petition is approved by the USCIS, if a visa is available for your spouse, he or she may file to adjust status. This application, Form I-485, an Application to Register Permanent Status or Adjust Status, must be filed by your non-citizen spouse. After the approval of Form I-485, USCIS will mail the green card (also called Form I-551) to the address on file.

It’s very important to make the distinction between a petition filed by a U.S. citizen spouse and a petition filed by a lawful permanent resident spouse. If the sponsoring spouse is a U.S. citizen, under U.S. immigration laws, an immigrant visa is immediately available to the spouse – which significantly reduces the visa wait time.

On the other hand, if the sponsoring spouse is a lawful permanent resident, his or her spouse may have to wait for months or years before an immigrant visa is available. This is an important point to note. Since visa availability could take a long time, it’s imperative that you plan ahead so that the international student spouse maintains a lawful status.

If the permanent resident’s spouse completes his or her studies under the F1 status or otherwise is no longer in lawful status, he or she may not be allowed to adjust status from inside the United States. This applies even if the USCIS has already approved the immigrant petition, forcing your spouse to leave the country and go through consular processing.

It cannot be stressed enough that the immigrant spouse must maintain a lawful status if he or she wants to adjust status without leaving the United States. However, if the petitioning spouse is a U.S. citizen, your spouse may be able to adjust their status without leaving the country, even if the spouse ends up accruing unlawful presence.

This distinction is extremely important because the spouse of a U.S. citizen (considered an immediate relative) may generally adjust status from inside the U.S. despite having an unlawful presence. While the spouse of a lawful permanent resident may not generally adjust status from inside the country after an unlawful presence, forcing him or her to leave and go through consular processing.

Can I sponsor a spouse who is currently in the U.S. on a visitor visa (B1/B2) for a green card?

Yes, you may sponsor a spouse for his or her green card if they are currently in the country on a visitor visa (B1/B2). If your spouse entered the U.S. with the intent to briefly visit or to conduct a business activity, but then fell in love with you and you two decided to get married, this is perfectly fine under the U.S. immigration law.

However, it’s important to note that if your spouse entered the country with the intent to get married and adjust status from inside the U.S., that’s considered misrepresentation or fraud. This is because your reason for entry into the U.S. must match the type of visa awarded. If your spouse misrepresented to the visa officer and the Customs and Border Protection (CBP) officer at the port of entry that he or she is here to visit, but really came to get married, under immigration law, this is considered fraudulent intent.

If the USCIS officer determines that your now-spouse had fraudulent intent or misrepresented his or her purpose for the visit to a visa officer or a Customs and Border Protection officer (CBP), the adjustment of status may be denied.

If your spouse is currently in the U.S. on a visitor visa (B1/B2), the process of sponsoring his or her green card starts with filing an immigrant petition, Form I-130. After the petition is approved by the USCIS, and if a visa is available, your spouse must apply to adjust status by filing Form I-485.

It’s important to distinguish whether the petitioner is a U.S. citizen or a lawful permanent resident. This is because a spouse of a citizen is considered an immediate relative under the immigration laws, and therefore there is no wait time for a visa to be available. On the other hand, the spouse of a lawful permanent resident may have to wait for his or her visa to be available.

Additionally, it’s important for the immigrant spouse to maintain his or her immigration status while waiting for the USCIS to process the application. If the spouse stays longer than the time allowed under his or her B1/B2 visa, they may not be able to adjust status from inside the country. However, if the petitioner is a U.S. citizen, an immigrant spouse may be able to adjust their status from inside the county even if he or she has overstayed the visitor (B1/B2) visa.

Can I sponsor an undocumented spouse who is currently in the U.S. for a green card?

The short answer is yes, you can sponsor an undocumented spouse who is currently in the U.S. for his or her green card. However, the likelihood of successfully completing the process resulting in the spouse receiving a green card depends on many different factors.

You are considered undocumented if you entered the U.S. without inspection by a CPB officer, overstayed a non-immigrant visa term, or otherwise violated the visa terms.

If the petitioner spouse is a U.S. citizen, and the immigrant spouse is undocumented (because he simply overstayed his visa), then he may be allowed to adjust his status to a permanent resident from inside the U.S. But remember, if the immigrant spouse is undocumented because he entered without inspection (EWI), then he must leave the country and apply through consular processing. If you are in this situation, consult an immigration attorney because there is a provisional waiver available, that may help prevent your immigrant spouse from being punished under the 3-year or the 10-year ban.

If the petitioner spouse is a lawful permanent resident and the immigrant spouse is currently undocumented, he must leave the country and go through consular processing in his home country. Plus if the immigrant spouse has accrued over 180 days or 360 days of unlawful presence, he may be punished under the 3-year or a 10-year ban. If you are in this situation, please consult with an immigration attorney, there is a provisional waiver available, preventing your spouse from having to stay outside the U.S. for 3 or 10 years after he leaves for the consular process.

Can your spouse wait in the U.S. while waiting for a marriage-based green card?

Whether your immigrant spouse can wait in the U.S. while waiting for a marriage-based green card primarily depends on several factors.

If you are a U.S. citizen and your immigrant spouse is currently present in the country on a valid non-immigrant visa (F1, B1/B2, etc.), then you should have no issues. Even if there is an overstay and your immigrant spouse accrues unlawful presence under the non-immigrant visa, generally he or she can adjust status from inside the U.S. – as an immediate relative.

But if your spouse is currently present in the U.S. unlawfully, it surely complicates the situation. If he or she entered the U.S. legally and just ended up staying past the visa term, then in most cases, your spouse can wait in the U.S. and adjust his status without leaving the country. However, if he or she entered without inspection, then they are not allowed to adjust status from inside the U.S. – and sadly, must wait for their green card application in their home country.

How long does a marriage-based green card last?

If you and your spouse have been married for less than two years at the time the adjustment of status is approved or an immigrant visa is granted, then your spouse received a conditional green card. A conditional green card is given to an immigrant spouse if the couple has been married for less than two years. It’s valid for two years from the day of issuance and must be renewed by filing a joint petition (I-751), within 90 days before its expiration date.

If the joint petition I-751 is timely filed, the immigrant spouse may use his or her petition receipt as proof of permanent resident status. Failure to file the petition and remove the condition from the green card will cause the immigrant spouse to lose his or her permanent resident status, and unlawful presence will begin to accrue.

How long does it take to get a marriage-based green card?

Unfortunately, the marriage-based green card process is a long one. It involves you filling out several forms, and applications, and attending interviews and appointments. You are also dealing with more than one federal agency, and possible case backlogs or visa unavailability – making it hard to accurately predict how long the entire process may take.

The time it takes to get a marriage-based green card depends on a plethora of factors, however, in most cases it takes anywhere from 12 to 36 months to complete the entire process.

Immigration Attorney OKC: Oklahoma Green Card Lawyer

If you need help with sponsoring your immigrant spouse for his or her green card, please contact the law office of Vivid Niroula. Mr. Niroula is an immigration attorney based in Oklahoma City. He has a solid understanding of U.S. immigration laws, provides client-focused services, is highly responsive, and offers reasonable fees. You can get in touch with us by calling (405) 456-9250 or by filling out the Contact Us Form.