Marrying a Green Card Holder vs. Marrying a U.S. Citizen
We know that not all marriages are the same. We can't always say that one marriage is better than the other, right? Well, in terms of applying for green card, one marriage might be better than the other.
Julia is a foreign student from Russia. She's maintained her foreign student status, F-1, for all four years of her college studies. After the completion of her studies, Julia applied for, and received, an Employment Authorization Document, i.e., work permit, under her OPT (Optional Practical Training) period. Now her OPT period and her legal status as F-1 is about to end. But before the expiration of her status, her boyfriend, Sam, finally proposes. Julia is elated.
Of course, it's not that Julia wants to marry Sam for her legal status. They met during their freshmen year in college and have been together since. They are in love and received the blessings of both of their parents. They have a simple wedding as they are both young and not financially stable yet. After their marriage, they are ready to file the green card for Julia. Should Julia maintain her F-1 status or other nonimmigrant status while her green card is pending? That depends.
If Sam is a green card holder/permanent resident and not a U.S. citizen, then Julia must maintain a legal status while she waits to apply for her green card. (Please note that a green card holder and a permanent resident mean the same thing and I'm using the terms interchangeably.) The spouse of a green card holder is not in the same category as the spouse of a U.S. citizen. Julia is in a 'preferential category' where she can only apply for her green card once her priority date becomes current.
The priority date is the date when Sam files I-130, Immigrant Petition for Alien Relative for Julia. For example, let's say Sam files the I-130 on April 1, 2017. Then, Julia's priority date is April 1, 2017. As the date of this blog post, USCIS is processing cases with priority date of May 8, 2015 for spouses of green card holders (permanent residents). This means that Julia would have to wait about two years until she can file her application for green card, I-485, Application to Register Permanent Residence or Adjust Status. That is, it's about two years between May 8, 2015 and April 1, 2017 and that's how long she'll have to wait until she can apply for the green card. The priority date for preferential categories are found in Visa Bulletin, which is updated every month.
Now, because Sam is a green card holder and not a U.S. citizen, Julia must maintain a legal status until her priority date becomes current AND she files her application for green card. If she is out of status when her priority date becomes current, then she is not eligible to file the application for green card. She still has options such as filing a waiver or waiting for Sam to become a U.S. citizen, but it'll take additional steps, money, and time before she becomes a permanent resident.
But if Sam is a U.S. citizen, then everything changes. It doesn't matter whether or not Julia maintains a legal status. She can be out of status and still be eligible to file her green card application, I-485, at the same time the immigrant petition, I-130, is filed. As the spouse of a U.S. citizen, she is not in a preferential category. All these things about priority date do not pertain to her.
Remember there are exceptions, exceptions, and exceptions to the general rule. Your case may fall into one of the exceptions and that is why it is very important for you to review your case with an experienced immigration attorney.
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