1. Can my spouse receive his/her green card in the U.S.?
Only persons who are eligible to adjust status in the U.S. can apply for their green cards within the country. In order to be eligible to adjust status, you generally have to have entered the U.S. legally. Note that even persons who entered legally but then let their status expire are generally eligible to adjust status. Persons who entered the country without inspection may still be eligible to adjust if someone filed an immigration petition for them before April 30, 2001.
2. What is the process for filing an immigration petition for a spouse if he/she is not eligible to adjust status?
Persons who are ineligible to adjust status in the U.S. must apply for their immigrant visa at a U.S. consulate in their home country or country of residence. This process is called “consular processing.” Consular processing involves first obtaining an approved I-130 petition through USCIS, then waiting for your priority date to become current if you are not an immediate relative. Finally, a person who consular processes will have a medical appointment as well as the consular interview in their home country.
3. Is there a financial support requirement if I want to bring my spouse to the U.S.?
Yes. Persons who file an immigration petition for a spouse must file “affidavits of support” at either the adjustment of status or consular processing stage. The affidavit of support is essentially an agreement that you will provide financial support for your spouse if he or she comes to the U.S. If you do not earn sufficient money to meet the requirements for the affidavit of support, there is the option to obtain a “joint sponsor” to help with the support requirement. In addition, you may be able to count assets that you possess toward the affidavit requirements.
4. Will my spouse have his or her “full” green card once we go through the process?
It depends. Persons who have been married for less than two years when they are approved for a green card will receive “conditional permanent residency” for a period of two years. The government has imposed this requirement to limit fraud in marriage-based visa applications. In order obtain full permanent residency, a conditional permanent resident must file a petition with his or her spouse during the ninety days before his conditional status expires.
5. What if I get a divorce while I am a conditional permanent resident?
You can still remove the “conditional” tag on your permanent resident status by filing for a waiver of the joint filing requirement. There are various criteria that may make a person eligible for the waiver, but the most common way to obtain a waiver is to show that the marriage began in good faith but then ended in divorce. If you are in this situation, I would strongly recommend that you consult with an experienced immigration attorney. Please call John L. Wheaton, Attorney at Law at 206-829-8214 to arrange a free phone consult.