Marriage green cards in 2021, changes and procedures explained

Kaushik Ranchod from The Ranchod Law Group in Sacramento welcomes you to this episode of the immigration show with updates on the marriage-based green card.

Marriage-based green cards are one of the most frequently filed cases here at our office in Sacramento. In this video, Kaushik details the marriage-based green card process and talks about who can file for a green card, the best filing process, and the green card interview.

Who is eligible for the marriage-based green card

With the marriage-based green card process, you have to be married, of course. Being married is an important distinction, though, because you can’t be engaged.

If you are a lawful or permanent resident or a U.S. citizen spouse, you can file for your loved one who’s either abroad or in the United States.

If you are a lawful permanent resident, you can file for the I-485 (green card). However, in the case of a spousal abroad immigrant visa, you must check and make sure that have to make sure that the priority date is current to reach the final step of the green card process.

The way that you determine if the priority date is current is with the visa bulletin. So if you’re adjusting Status in the United States, where your spouse is in the U.S., and you’re a lawful permanent resident, you need to look at that visa bulletin if you want to file form I-485.

If your spouse is a U.S. citizen or if you’re a U.S. citizen filing for your loved one from abroad who’s in the United States, you can do what’s called the one-step: the I-130 and the I-485 at the same time and because you’re an immediate relative.

If you’re a lawful permanent resident, you have to make sure that the priority is current. If the priority date is not current, you must wait for it to be current to follow for the I-485. However, if the priority date is current, you can file both I-130 and I-485 simultaneously.

Adjustment of Status

If you are married and are a U.S. Citizen or lawful permanent resident, the most common process is filing for the adjustment of Status with your spouse already in the united states. The other situation where you may find yourself is filing for an immigrant visa where your spouse is outside of the United States: waiting outside the United States to come into the United States.

The Adjustment of Status Process

Some of the forms that are filed with the adjustment of status process are:

  • form I-485;
  • form I-765 for work authorization;
  • the travel document form I-131;
  • the affidavit of support form demonstrating that you’re 125 percent above the poverty guidelines or a joint sponsor – form I-944 (Declaration of Self-Sufficiency)

The forms required by USCIS could all change – immigration laws are constantly changing, and with the Biden administration, this may no longer be in effect, so you always want to check the website to determine whether or not you’ll need these forms. As of today, you do need them.

Form G-325

Please note that there used to be a form G-325, but it is no longer required. There is form I-130A that goes along with form I-130.

Advantages of filing from within the United States

When you’re filing from within the United States, one of the benefits of applying for the marriage-based green card is work authorization while your application is pending. This was taking about 90 days, but now we’re seeing anywhere from around five to six months or longer.

The concept of non-immigrant intent

Now an important concept to be aware of with the adjustment of status process is the so-called non-immigrant intent. It is crucial to be aware of this concept because the USCIS could find that you have committed visa fraud if you came to the U.S. on a visitor’s visa. In fact, USCIS may determine that you misrepresented your intent when you came into the United States, depending upon when you got married and other actions. So there used to be something called a 30 60 90 day rule evaluating what your non-immigrant attempt was depending upon when you got married within 30 60, or 90 days. That’s been replaced with the 90-day rule. The 90-day rule is something you’ll want to be aware of because you shouldn’t come to the United States with the intent to get married to your U.S. citizen spouse. If that’s the case, the most appropriate procedure is the immigrant visa. With the Immigrant Visa, you would apply for the I-130 in the United States and then have the interview at a U.S. embassy abroad.

The USCIS will evaluate your relationship

The USCIS will evaluate whether or not you actually have a real relationship. In both the immigrant visa and the marriage-based green card, when the I-130 is filed, the USCIS will make their determination primarily based on the documents you provide with the I-130 petition. You must provide a certified copy of your marriage certificate. Depending on circumstances, you will also need to demonstrate that you were previously divorced that you’ve actually had a prior divorce that has been finalized. You will have to show evidence of that, so these documents are extremely important. The immigration officer appointed to your case will not simply take your word for it and assume that you have a real relationship. You will have the burden of proof to demonstrate that you have a real relationship. For this reason, joint documents, evidence of your real marriage, are essential.

Application procedure for marriage based greed card

Let’s examine the application procedure with the marriage-based green card. You are entitled to filing with the local service center. You need to file all the forms which have been mentioned and described so far in this article. Please check the USCIS website because forms and procedures are constantly changing. At a minimum, you will submit forms I-130, I-131, and I-485. Once you submit the forms you will receive a confirmation notice within about a month of applying. The notice will confirm that your application has been filed. You will then be scheduled for biometrics. The biometrics check is where the government makes sure you are not inadmissible because of an existing criminal record that would make you inadmissible.

What happens if you have a criminal record?

If you do have a criminal issue, you’ll want to consult with an immigration attorney. Consulting with an experienced immigration attorney will help identify the best possible solution for your case. An attorney will verify if you should even be applying for a marriage-based green card. Based on the facts of your situation, an immigration attorney can establish if, for example, you may need a waiver and will provide priceless guidance on how your criminal issue should be addressed and treated.

The biometrics are basically doing a background check with the FBI to determine if you have a criminal record and see what kind of record you have. Interviews are currently being scheduled within a year from the time of filing. Of course, this could change and is subject to government processing times. At our offices in Sacramento, where we process many green card applications, we’ve noticed a slowdown with Covid-19.

At one point, these applications were taking around four months, and now the entire process has slowed down significantly. These times are always changing, and you can look that up based on the processing times posted at the website. What I’m telling you right now are the times that it’s taking right now during the time that your application is pending.

Three common mistakes people make when filing for a green card

Our Immigration Attorneys in Sacramento frequently see people make three common mistakes when filing for a green card.

People do not answer the questions correctly

During numerous consultations with clients, the immigration attorney discovers that applicants do not answer the questions correctly. At times we find out people do not answer the questions at all. Unfortunately, the USCIS is paying more and more attention to the level of detail with which applicants complied the forms. For example, if you don’t put “n/a” on any empty box you wouldn’t fill out, USCIS could reject the application! In my opinion, this is just another to make it more difficult for you to have a successful filing.

Applicants do not provide enough supporting documents

The second mistake our immigration attorneys spot immediately is the lack of supporting documents with the green card application. For a successful application, you want to make sure you provide as many joint documents with your application as possible. I suggest bringing those joint documents to the interview as well.

Applicants do not produce a proper affidavit of support

The third critical issue which surfaces when we review a rejected green card application is related to the affidavit of support. Affidavit of support is a very tricky form, even more so if you’re on the borderline or you need a joint sponsor. If you need a joint sponsor, remember they also need to be making about 125 percent of the poverty guideline. A U.S. citizen spouse needs to be making an income that is 125% above the poverty guideline.

Is form I-944 going to be valid during the Biden Administration?

President Biden said that he would be reversing many of Trump’s policies, and one of those is form I-944 income of self-sufficiency.

The Interview Process

Both of you should show up to the interview. It is crucial that both of you be present at the interview. Otherwise, they could deny your application because they want to interview both of you to determine that you have a real relationship. At the time of the interview, immigration officers are going to ask you questions about your relationship. Some of the questions immigration officers ask:

  • where did you get married?
  • When did you get married?
  • Where did you last go out to dinner?

Immigration officers will ask this type of question to evaluate the validity of your marriage. If the interview is unsuccessful, you could be scheduled for a second interview, known as a fraud interview.

The Fraud Interview

The fraud interview is where they separate you, and they ask very detailed questions to determine whether or not your answers match up. Some of the questions might be similar to the following:

  • What kind of toothpaste do you use?
  • What kind of soap does your spouse use?
  • who does the laundry?

As you can see, these questions are very specific. The immigration officer examining your case will make sure by interviewing both of you that you’re answering them both the same way. If there are discrepancies in your answers, they are going to ask why there are discrepancies.

So you want to get it right the first time to avoid the second interview the second time.

Officers will carefully review your joint documents, so you want to have your joint documents at the interview. I recommend you bring a copy of your application, even though it was submitted, because sometimes things can be misplaced. It’s a good practice to have a complete set of your documents, including all forms, along with you if something is missing. If the immigration officers do not have a document, you want to make sure everything is at hand – bring everything that’s on the interview notice as well, so you’re fully prepared.

The examining officer will review joint documents. For instance, they will want to see joint bank accounts and joint leases, proving that you have a real marriage, as demonstrated through your documents. That’s where they’re also going to look at your financial documents – up-to-date financial documents as well updated tax returns. If the tax returns are not current you may not get a determination at the interview. In fact, what I’ve seen is that they put your green card application under further review, and you will be notified by mail if something is missing in your application.

If your supporting documentation is deemed insufficient, they could also issue a Request for Evidence. Only then you’ll get your green card in the mail.

If you’ve been married less than two years, then you’ll want to watch my video about the I-751 because you’re going to need to file for removal of the conditions on the green card through the I-751.

Form I-485

USCIS has recently updated Form I-485. This section contains information about the application to register permanent residence or adjust Status, commonly known as Green Card.

What is Form I-485?

Form I-485 is the application to Register Permanent Residence or Adjust Status. If you are physically in the United States, you can use this form to apply for a Green Card, technically referred to as lawful permanent resident Status.

About Form I-485

Form I-485 and its instructions were essentially unchanged for many years. However, recent updates have made the form more user-friendly and the instructions more helpful and easier to understand.

Part 2 of the form allows you to identify the specific immigrant category you want to apply under. Knowing your immigrant category will help you understand what evidence you need to submit. You will no longer need to file a separate Form G-325A with Form I-485.

Some questions from the G-325A have been incorporated directly into the updated Form I-485.

General eligibility and inadmissibility – related questions have been organized and listed into logical groups. USCIS uses these questions to help determine whether to approve your application. Instructions for Form I-485 are in two sections:

  • general instructions;
  • additional instructions.

It would be best if you read all of the general instructions as they apply to every applicant. The additional instructions section provides specific information for almost every immigrant category you can apply under. You only need to read the extra instructions that apply to your immigrant category.

Not all immigrant categories have additional instructions. However, the general and the additional instructions provide detailed information on what evidence you should submit with your Form I-485.

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