What are the legal requirements?
YOU ARE: A foreign spouse of a U.S. citizen who is currently living INSIDE the United States, entered the country LEGALLY through a valid visa or on the Visa Waiver Program, and meet ALL of the requirements found below:
- The foreign spouse must have a valid unexpired passport from his/her home country
- The foreign spouse must have proof of legal entry, usually in the form of a visa issued by a U.S. consulate and a white or green I-94(W) card issued at the airport or border (*or qualify under SECTION 245(i) discussed below if you entered ILLEGALLY)
- The U.S. citizen AND foreign spouse must have been FREE to marry (i.e. all previous marriages ended in divorce or death of the former spouse)
- The U.S. citizen AND foreign spouse are currently LEGALLY married and entered into such marriage for the purpose of joining their lives together (i.e. you did not marry solely for the purpose of securing immigration benefits)
- The foreign spouse has not been convicted for a crime and does not have a history of detentions/removal/deportations by the Department of Homeland Security (*waivers may be available for such conduct but this requires careful consultation with Attorney Michael S. Cho)
- The U.S. citizen spouse has filed taxes with the IRS during the previous three years, is currently employed, and is earning AT LEAST the minimum income level set forth by the U.S. Poverty Guidelines. Typically, this ranges from $19,387 for a family of two and increases by approximately $5,025 for each additional family household member or dependent of the U.S. citizen spouse.
You are NOT eligible to apply for a Green Card throughÂ Marriage to a U.S. Citizen while remaining WITHIN the United States if ANY of the following applying to you:
- The foreign spouse entered the country ILLEGALLY (i.e. without being inspected and admitted or paroled by a USCIS officer at the border or airport port of entry) (*UNLESS you meet the requirements of SECTION 245(i) discussed below)
- The foreign spouse entered the country while in transit to another country without obtaining a visa
- The foreign spouse is a J-1 or J-2 exchange visitor subject to the 2 year foreign residence requirement, and has not been granted a waiver (*waiver may be available but this requires careful consultation with Attorney Michael S. Cho)
- The foreign spouse entered the country on a K-1 fiancee visa but did NOT marry the U.S. citizen who originally filed the K-1 fiancee visa petition
*SECTION 245(i): Applying for a Green Card while remaining in the United States after having entered the country ILLEGALLY (i.e. without being inspected and admitted or paroled by a DHS officer at the border or airport)
- A visa petition or labor certification was filed for you before January 14, 1998
- Your visa petition or labor certification was "approvable when filed"
- If it was filed after January 14, 1998 and on or before April 30, 2001, your were physically present in the United States on December 21, 2000
Frequently Asked Questions regarding Green Cards through Marriage to a U.S. Citizen:
- Can your office apply for my green card even if I have stayed beyond my period of authorized admission (i.e. past the authorized date stated in the I-94(W) card) and am currently "out of status"?
YES. As long as you meet the requirements stated above.
- Can your office apply for my green card even if I have worked illegally in the United States? (i.e. without proper employment authorization given by the USCIS)
YES. As long as you meet the requirements stated above.
- Can your office get me a work permit as part of my green card petition?
YES. We will obtain a temporary employment authorization document for you so that you may work while your green card petition is being processed.Â These typically take anywhere from 6 to 8 weeks to obtain AFTER your petition has been filed by our office, but ultimately will depend upon your place of residence and the USCIS office in question.
- Can your office also apply for a travel permit as part of my green card petition?
YES, UNLESS you have accrued over 6 months of "unlawful presence" in the United States. Attorney Michael S. Cho will make this determination after we begin working on your case and receive further information on your current immigration status. You MUST have a travel permit to leave the U.S. while your green card petition is being processed, or your application will be revoked and you may not be allowed back into the country.
- I heard the U.S. citizen spouse has to make enough money to support the foreign spouse.Â How much income is required?
This depends upon a number of factors such as the number of people who live in your household as well as those who are dependent on the U.S. citizen spouse.Â Typically, this ranges from $19,387 for a family of two and increases by approximately $5,025 for each additional family household member or dependent.
- The U.S. citizen spouse does not make enough money. What do we do now?
First, the U.S. citizen spouse MUST execute an Affidavit of Support on behalf of the foreign spouse regardless of their income. Second, a joint-sponsor who INDEPENDENTLY meets the required income level must execute a SEPARATE Affidavit of Support on behalf of the foreign spouse. This joint-sponsor must be a green card holder or U.S. citizen. However, if the FOREIGN SPOUSE is working, has filed taxes in the U.S., and independently makes more than the required income level, then they themselves can execute a Contract between Sponsor and Household Member and fulfill the mandated financial requirements.
- What if I entered the U.S. illegally and do not qualify under Section 245(i)?
You must then leave the U.S. and obtain your immigrant visa at your U.S. consulate located in your home country. If you have accrued over 6 months of "unlawful presence" in the U.S., then you will be subject to the 3 year bar (refused entry back into the U.S. for 3 years) unless you are granted a waiver. Our office routinely prepares waivers in conjunction with immigration petitions at consulates abroad, but this requires careful consultation with Attorney Michael S. Cho.
- Why should I hire an attorney to apply for a green card?
The procedural requirements to apply for a Green Card are constantly changing. Our office has handled countless green card petitions at USCIS offices throughout the United States and maintain a near perfect approval rate. We constantly keep up to date on changing procedural requirements, and just as importantly, handle all follow ups and monitoring of your petition to make sure there are no delays or problems. We try to make sure EVERYTHING is done correctly the first time around.