Have you finally met that "special" one only to find out they need legal paperwork to stay (or come to) America?
There are two ways to for the spouse of a U.S. Citizen to get a marriage green card:
Option #1: Consular Processing
The process to get a marriage green card when your spouse is outside of the USA is called “Consular Processing” which takes 9-18 months.
When you choose this option, the marriage green card interview is conducted at a U.S. Embassy in the country where your spouse currently resides and only the foreign spouse goes to the interview.
Option #2: Adjustment of Status
The process to get a marriage green card when the spouse of the U.S. Citizen is already legally inside the USA is called “Adjustment of Status,” which takes 5-8 months.
When you choose this option, the marriage green card interview is conducted at a local USCIS office inside the USA and both spouses go to the interview.
What if my spouse is in the USA, but is overstayed their visa or is undocumented?
Many times foreign nationals are allowed to get their marriage green card if they have proof they entered the USA legally, but they overstayed their B2 or F1 or H1b (or other) visa. It depends on various factors.
For other foreign nationals who entered the USA illegally, they may still be eligible to get their marriage green card, but it depends on certain factors. They will need to contact an immigration attorney who specializes in EWI (entry without inspection, i.e. without paperwork) type of marriage green card cases (we do not).
If you choose the “consular processing” option, the marriage green card will be processed while you and your spouse is abroad.
Once the processing starts, the U.S. citizen spouse may visit or move to the U.S., but the foreign national spouse needs to remain abroad until the processing is completed – they may not be able to use their tourist visa to visit the USA while their marriage green card is pending because it is a "single intent" visa (can only intend to be in the USA temporarily).
After the same sex marriage green card is granted by the U.S. Embassy and the foreign national spouse moves to the U.S., he/she must live in the U.S. permanently (at least 7 months per year to be safe) in order to keep the marriage green card. It does not make sense (and it is expensive) to get the green card only to leave immediately and give it up -- so they need to be ready to stay in the U.S.
When can my spouse get USA citizenship?
The waiting period for USA citizenship is 3 years after getting the marriage green card. After a foreign national becomes a USA citizen, it does not matter where they live – they keep their USA citizenship even if they live in a different country.
Is the process for a green card for a same sex married couple the same?
Yes and no. The filing fees and paperwork are the same (the instructions and forms are on www.uscis.gov).
Also, the proof is the same - we still have to prove there was a legal marriage and that the foreign national spouse entered the USA legally if they are already inside the USA.
However, there may be differences in terms of proving a “bona fide marriage” in a same sex marriage green card case, as well as differences for the same sex marriage green card interview.
If you’d like to discuss your case, you can call (619) 235-8811 and ask to speak with Danielle Nelisse, an immigration attorney with 17 years of immigration marriage green card experience.
If she is not at her desk, please leave a voicemail message and she will call you back.
She does not charge a fee to take your call and discuss whether your case would qualify. If you qualify, she can provide you with a quote for how much it would cost to represent you no matter where you reside.
When you call the office, just ask to speak to Danielle Nelisse.
Email firstname.lastname@example.org or call (619) 235-8811 or (877) 884-6644 to ask about your case at no charge.
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Other Immigration Questions Concerning Same Sex Married Couples:
What are the issues if my gay spouse entered the USA as a B-2 Tourist ?
Exactly what happens at a marriage green card interview?
How does a person get married in the USA?
Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.
What if my spouse entered the USA legally, but overstayed their visa?
What if my spouse is HIV positive?
Is “coming out” important to the Immigration Officer who conducts the marriage green card interview?