Gaining Permanent Resident Status (or a Green Card) in the United States - dummies

Gaining Permanent Resident Status (or a Green Card) in the United States

By Cheri Sicard, Steven Heller

Most people gain lawful permanent residence in the United States through a family connection or through employment. In the following sections, these categories are explored in more detail, as well as other ways people can legally live and work in the U.S. on a permanent basis.

Understanding the family preference categories

Family-based immigrant visa numbers are distributed according to preference categories. The higher you rank on the preference scale, the sooner you’re likely to receive a number. The following are the four family-preference categories:

  • First preference: Unmarried sons and daughters (age 21 or older) of U.S. citizens
  • Second preference: Spouses of lawful permanent residents and their unmarried children of any age
  • Third preference: Married sons and daughters of U.S. citizens
  • Fourth preference: Brothers and sisters of U.S. citizens who are 21 or older

After the visa petition filed for them by their sponsoring relative is approved by the BCIS (Bureau of Citizenship and Immigration Services), the immediate relatives of U.S. citizens — parents, spouses, and unmarried children under the age of 21 — usually don’t have to wait for an immigrant visa number to become available.

Marrying your way to permanent residence

Although it’s usually relatively easy for the foreign-born spouses of U.S. citizens or lawful permanent residents to come to the U.S., the BCIS doesn’t take kindly to folks who marry for the sole purpose of obtaining a green card. The countless TV sitcom and movie plots you’ve seen on this subject are close to the truth. The BCIS will want to see evidence that yours is truly a marriage and not just a union on paper. You and your spouse should expect to answer questions about each other and about the marriage, as well as provide physical evidence of the relationship. For this reason, in addition to important documents like your marriage certificate, be sure to save things like travel documents, vacation and family photos, billing statements, and other tangible evidence of your life together.

Marrying a U.S. citizen

If your spouse is a U.S. citizen, either born or naturalized, you are considered an immediate relative and are likewise usually eligible for an immigrant visa immediately, providing your Petition for Alien Relative (the form your sponsoring relative filed on your behalf) has been approved by the BCIS.

If you’ve been married less than two years when you gain lawful permanent resident status, that status is given on a conditional basis — conditional on your still being married after a full two years. At that time, you and your spouse will need to apply together to remove the condition.

You must apply to remove conditional status within 90 days before the two-year anniversary of the date your conditional permanent resident status was granted. If you fail to file during this time, you’ll be considered out of status as of the two-year anniversary, and may be subject to removal from the country. Use BCIS Form I-751 to apply to remove the condition.

Marrying a green-card holder

If you marry a lawful permanent resident of the U.S., you aren’t considered an immediate relative. Instead, you fall under the family second preference category. If your spouse’s Petition for Alien Relative form is approved, the Department of State will notify you when a visa number becomes available.

If you were married before your husband or wife became a permanent resident, you cannot obtain permanent resident status along with your spouse without being subject to visa limits. If, for whatever reason, you did not physically accompany your spouse to the U.S. when he or she became a permanent resident, you may be eligible to receive following-to-join benefits. This means your husband or wife won’t have to file a separate Petition for Alien Relative form and you won’t have to wait any extra time for an immigrant visa to become available. You may be eligible for following-to-join benefits, provided your marriage still exists and your husband or wife received his or her lawful permanent residence status in one of the following ways:

  • Through a diversity immigrant visa (winning the visa lottery)
  • Through an employment-based immigrant visa
  • Based on a relationship to a U.S. citizen brother or sister
  • Based on a relationship to U.S. citizen parents after you were already married

Legally marrying abroad

Although no exact document exists in the U.S., all civil-law countries require proof of legal capacity to enter into a marriage contract. This means you must obtain certification by competent authority that no impediments to the marriage exist. Unless the foreign authorities will allow such a statement to be executed before one of their consular officials in the United States, the parties of a prospective marriage abroad must execute an affidavit at the U.S. embassy or consulate in the country where the marriage will occur. This affidavit of eligibility to marry states both parties are free to marry. Some countries require witnesses to these affidavits. Check the law where you plan to marry.

Using family connections

Family connections provide the most common path to immigration, and family reunification is a primary goal of the U.S. immigration system. Nonetheless, immigrating through a family connection can be a complex and challenging proposition. Sponsoring relatives have significant obligations to meet before they can bring family members here.

In order to immigrate through a family connection, your relative must file on your behalf with the BCIS an I-130 Petition that includes proof of your familial relationship.

Born or naturalized citizens may sponsor their spouses, children, brothers and sisters, and parents. Lawful permanent residents may only sponsor their husbands or wives and children.

Assuming the BCIS approves the I-130 Petition your relative filed for you, the State Department must determine if a visa number is immediately available. If you’re an immediate relative of a U.S. citizen, a visa will be available at once. If you fall within a family preference category, you will be placed on a waiting list.

You can check the status of a visa number in the Department of State’s Visa Bulletin.

In order for your relative to be eligible to sponsor you to immigrate to the United States, he or she must meet the following criteria:

  • He or she must be a citizen or a lawful permanent resident of the U.S. and be able to provide documentation proving his or her citizenship or immigration status.
  • He or she must be at least 18 years old, in most cases, and at least 21 years old for U.S. citizen sons or daughters sponsoring a parent.
  • He or she must prove and document his or her relationship to you, the relative being sponsored.
  • Your relative must also document and prove that he or she can support you and any other financially dependent relatives at 125 percent above the mandated poverty line.

Your relative must prove he or she can support you by completing an Affidavit of Support (Form I-864) for you to file with the BCIS (if you’re adjusting your status) or with a U.S. consulate (if your visa is processing — there is a filing fee in this case). To complete an Affidavit of Support, your relative must live in the U.S. as their primary residence. The Affidavit of Support states that the sponsoring relative accepts legal responsibility for financially supporting you. Your relative must be able and willing to accept this legally enforceable responsibility until you go through the entire immigration and naturalization process and become a United States citizen or until you can be credited with 40 quarters of work (which usually takes about 10 years).

Your relative must also complete an affidavit of support if he or she has filed an employment-based immigration petition (Form I-140) as the employer on your behalf or if he or she has a significant ownership interest (5 percent or more) in a business that filed an employment-based immigrant petition for you.

In determining his or her income amount, your relative can include in the count:

  • Money held in savings accounts, stocks, bonds, and property
  • Your income and, in some cases, your assets
  • The income and, in some cases, the assets of members of your relative’s household related by birth, marriage, or adoption or of those listed on your relative’s most recent federal income tax return (whether or not they reside with your relative)

Not surprisingly, meeting the financial support qualifications presents an insurmountable obstacle to many otherwise willing and qualified potential sponsors. In some cases, if the relative visa petitioner’s household income doesn’t quite reach the minimum 125 percent above the government-mandated poverty level, a joint sponsor may also be allowed to sign an additional affidavit of support. A joint sponsor is someone, other than the family member who is sponsoring you for immigration, who is willing to share legal responsibility, along with your family member, for supporting you if for any reason you are unable to support yourself after immigrating to the U.S.

A joint sponsor must meet the same sponsorship qualifications as the sponsoring relative with one important exception: The joint sponsor does not need to be a relative of any kind (he or she can be, but that isn’t required in order for the person to qualify).

The joint sponsor (or the joint sponsor and his or her household) must meet the 125 percent income requirement on his or her own. You cannot combine your income with that of a joint sponsor to meet the income requirement the way you can with your primary sponsor.

So how much is 125 percent above the mandated poverty level? The U.S. Department of Health and Human Services sets the annual poverty guidelines. The guidelines are available from the U.S. Department of Health and Human Services (HHS).

The guidelines are also on the BCIS’s Web site as part of Form I-864, but often those guidelines are not updated as quickly as they are at the HHS, so checking with HHS first is always a good idea.