If you are working and living in the same household as your wife, your income should be able to be used to meet the affidavit of support requirement. She still needs to complete and file the I-864, but you would also complete and include the I-864A.
If you are working and have income to meet the requirement, the simplest way to address the affidavit of support issue is for you to also include the I-864A form with the submisison.
With respect to the overall green card process:
Obtaining a green card through an immediate relative is perhaps the fastest route to U.S. permanent residency. Under U.S. immigration law, an immediate relative is defined as the spouse, child (under the age of 21 years) or parent of a U.S. citizen. The biggest advantage of the immediate relative category is that it does not fall under the preference categories and there is no priority date backlog. An immigrant visa is always available under the immediate relative category.
How Do You Apply for a Green Card Through an Immediate Relative?
A green card may be obtained through an immediate relative such as a U.S. citizen spouse through one of two processes---I-485 adjustment of status or immigrant visa processing (IVP). I-485 adjustment of status applies if the foreign national is in the United States. Immigrant visa processing applies if the foreign national is in his or her home country.
Applying Within the U.S.---Adjustment of Status
When applying for a green card through an immediate relative within the U.S., the two main immigration forms are the I-130 and I-485. Additional forms include the G-325A biographical information, I-864 affidavit of support and I-693 medical form. In addition, if work permission and travel permission are required, those forms include the I-765 (work permission) and I-131 (travel permission).
The I-130 form is the petition for a foreign national relative. The U.S. citizen files this form with U.S. Citizenship and Immigration Services (USCIS) to establish the immediate relative relationship to the foreign national relative who wishes to immigrate to the United States. The U.S. citizen must file a separate I-130 form for each eligible relative. For example, if a U.S. citizen wishes to petition for his foreign national spouse and foreign national step-child, a separate I-130 must be filed for both the spouse and step-child.
In order to prove that the petitioner is a U.S. citizen, one of the following documents should be included with the I-130:
- Birth Certificate
- Naturalization Certificate
- Form FS-240, Report of Birth Abroad
- An original statement from a U.S. consular officer verifying that you are a U.S. citizen with a valid passport.
The I-485 form is used for the adjustment of status paperwork. Adjustment of status is the request by the foreign national to apply for and obtain permanent resident status in the U.S. The I-485 form calls for information about an individual's lawful status in the U.S. and any prior criminal or immigration problems.
There are many criteria an individual must meet in order to qualify for I-485 adjustment of status. Some of the fundamental requirements include last entering the country through proper inspection, being in lawful status in the U.S. and never working without permission in the U.S.
While most individuals may not adjust status if any of these criteria are not met, the last two are not impediments to an immediate relative wishing to adjust status within the U.S. INA 245(c) bar to adjustment because the person lacks current lawful status or the person worked without authorization does not apply to immediate relatives.
Even an immediate relative, however, is ineligible to adjust status within the U.S. if s/he last entered without inspection. In those cases, the immediate relative must return to the consulate abroad and apply for an I-601 hardship waiver. These matters are commonly seen with Mexican nationals who entered the U.S. without inspection and married a U.S. citizen. these individuals are ineligible to adjust status from within the U.S. and must process for an immigrant visa and I-601 hardship waiver at the U.S. Consulate in Ciudad Juarez.
(1) A foreign national enters the U.S. under valid H-1B status. He works for one year under H-1B status and then leaves his employer. He begins work at a new employer but doe snot file new H-1B or any other work authorization paperwork. Two years later he marries a U.S. citizen and wishes to apply for a green card based on that relationship. Is the individual eligible to apply for I-485 adjustment of status?
Yes-Even though the foreign national no longer possesses lawful status and has worked without permission, he is still eligible to adjust status because he is applying as an immediate relative.
(2) A foreign national enters the U.S. without inspection by hiding in the back of someone's truck. The individual stays in the country for two years and marries a U.S. citizen. The individual does not wish to leave the U.S. and wants to apply for a green card through I-485 adjustment of status. Is he eligible?
No-There is no exception to the bar to adjustment of status for someone who entered the U.S. without inspection. if the individual wishes to apply for a green card, he must return to his consulate abroad and apply for an immigrant visa and I-601 hardship waiver.
The form G-325A is a biographic information page used to collect critical biographic information of the U.S. citizen and foreign national. Background information required includes parent names, dates of birth and residences, current/prior marriages, current/prior residences and current/prior employment. G-325A forms will be included for both the U.S. citizen and foreign national with the I-130 paperwork, but only the foreign national with the I-485 paperwork.
The I-864 form relates to the affidavit of support requirement. the purpose of the form is to prove that the foreign national intending immigrant is provided enough financial support by the U.S. citizen spouse so that s/he does not become a public charge. The I-864 sponsor must be the U.S. spouse petitioner from the I-130, although a co-sponsor may be used if the U.S. citizen spouse cannot document enough income/assets. In some cases, the foreign national spouse's income may be used if the couple has been living together for at least six months.
All sponsors must submit the following documentation with their I-864:
- Proof of current employment or self employment
- A photocopy or an Internal Revenue Service-issued transcript of a photocopy or an Internal Revenue Service-issued transcript of your complete Federal income tax return for your most recent tax year, or an explanation if it is not submitted. Your W-2s and/or 1099 forms may also be required, see the I-864 instructions for details.
A sponsor may also submit a photocopy or an Internal Revenue Service issued transcript of a complete Federal income tax returns for the second and third most recent tax years if these additional tax returns help establish the ability to maintain your household income at the governing threshold set forth in Form I-864P, Poverty Guidelines.
If you are using the income of persons in your household or dependents to qualify as a sponsor, you must also submit a separate Form I-864A, Contract Between Sponsor and Household Member, for each person whose income you will use
In order to meet the affidavit of support requirement, the sponsor must demonstrate income that meets at least 125% of the poverty guidelines for the household size. (Poverty Guidelines) If the sponsor's income is insufficient, as briefly described above, s/he may utilize a household wage earner or co-sponsor. A household wage earner may file an I-864A form while a co-sponsor must file a separate I-864.
I-693 Medical Form
The I-693 medical form is used to determine whether an applicant for adjustment of status is admissible to the United States on medical grounds. The medical examination must be conducted by a civil surgeon who has been designated by Citizenship and Immigration Services (CIS). Find a Civil Surgeon
The I-693 medical results generally remain valid for 12 months (although that may be exended by CIS) and must remain sealed when filed.
The I-765 is the form used to apply for work permission while the green card paperwork is pending. If approved, the foreign national will receive an Employment Authorization Document (EAD). The EAD is generally valid for any position at any employer, including self-employment. In most cases, an EAD is issued within 60-90 days of filing.
The I-131 is the form used for travel permission while the green card paperwork is pending. If approved, the foreign national will receive multiple advance parole documents that may be used for entry back into the U.S.
Two Points of Caution with Advance Parole
- Unless you are in H-1B or L-1 status, do not travel outside the U.S. after I-485 paperwork has been filed until the I-131 advance parole paperwork is approved. Traveling without an approved advance parole could lead to abandonment of the green card paperwork.
- If you have any unlawful presence issues or concerns, do not travel outside of the U.S. even if you have an approved advance parole. Individuals who have accrued unlawful presence may trigger a bar to adjustment of status if they travel outside the U.S. while green card paperwork is pending.
What Happens After Everything is Filed?
After all of the paperwork is filed, receipt notices will be generated in 1-3 weeks for the I-130, I-485 and I-765/I-131 if applicable. Soon after the receipt notices are generated, a biometrics appointment notice is forwarded to the foreign national. As part of the adjustment of status process, the foreign national will be required to have fingerprints taken at the local CIS office or Application Support Center.
Work permission and/or travel permission usually arrives in about 65-90 days after filing.
The next stage is waiting for the actual adjustment of status interview. The interview is required to confirm that the marriage is real and legitimate, and to ensure that the foreign national does not have any past immigration or criminal problems that prevent green card issuance. CIS will send out an interview notice which lists what to bring to the interview.
During the interview, the CIS officer usually asks questions about how/when/where the couple met, details of the wedding, and some general questions about living arrangments to ensure that the relationship is real. In some situuations, the CIS officer may separate the couple to determine if the answers match-up and are the same. (This may be likely if there is a large age difference between the couple and/or if they are currently living apart.) The CIS officer may also want to see pcitures of the couple together, proof of commingling of assets and updated information in support of the I-864 affidavit of support requirement.
The interview usually concludes with one of three possibilities:
1. The background checks have cleared and the foreign national is approved for permanent resident status.
2. The background checks have not cleared, but everything else with the case is approvable. The individual may continue to use a valid EAD and/or advance parole document until the background checks clear. If certain background checks are pending for more than 180 days, CIS may go ahead and approve the case without them. See Q&As on this Issue
3. There is an issue with the foreign national's eligibility for permanent resident status. In this case, the CIS will usually advise that an additional review of the case is necessary.
If the case is approved, but the marriage is less than two years old at that time, the foreign national will receive conditional permanent residency. The conditional permanent resident card is valid for two years and I-751 paperwork must be filed within 90 days of that expiration to lift the conditional status and obtain permanent residency.
Applying Abroad---Immigrant Visa Processing
Pursuing the permanent resident process for a foreign national who is not in the U.S. is a little different.
First, the I-130 is filed in the U.S. or at a consulate abroad where applicable if the U.S. citizen is also living abroad. Once approved, an immigrant visa fee bill will be generated from the National Visa Center (NVC). Once paid, correspondence from the NVC will arrive requesting specific information and documentation in order to schedule the immigrant visa appointment at the consulate.
Proof of birth, marriage, divorce, as well as a police reports, submission of a medical examination, I-134 affidavit of support and discharge certificate from the military, if applicable, are required. These documents are provided to a consulate officer at an interview where the foreign national is issued an immigrant visa for admission to the United States as a permanent resident.
The foreign national shows his passport with the immigrant visa inside at the port of entry. An endorsement stamp is placed in the passport as evidence of permanent resident status until the green card arrives in the mail.
Andrew M. Wilson, Esq.
Serotte Reich Wilson, LLP