By George Lake
Obtaining a spouse-based green card, also known as a Marriage-Based Permanent Resident Card, is a significant goal for couples separated by international borders. However, when the U.S. citizen spouse is incarcerated, the already intricate immigration process becomes even more complex.
Understanding the Basics
A spouse-based green card is designed to reunite families by allowing the foreign spouse of a U.S. citizen to live and work legally in the United States. The process involves proving the legitimacy of the marriage and the financial ability of the sponsoring spouse to support the immigrant spouse.
Challenges Faced by Couples with Incarcerated U.S. Citizen Spouses
When your U.S. citizen spouse is in prison, you encounter unique challenges during the green card application process:
- Limited Communication: Maintaining contact with an incarcerated spouse can be challenging, making it difficult to collect necessary documents and information required for the application.
- Legal Hurdles: Depending on the nature of the crime, your spouse may face legal issues that complicate their ability to financially sponsor you and your immigration process.
- Financial Constraints: The financial burden of legal fees, prison visitation expenses, and other related costs can put additional strain on the couple. Further, it may not be possible for the U.S. Citizen spouse to financially sponsor the immigrating spouse – in which case assets or a joint sponsor may be needed to help meet this criteria.
- Emotional Stress: Coping with the emotional strain of separation and navigating the complexities of the immigration process can be overwhelming for both partners.
Adjustment of Status vs. Consular Processing
When applying for a spouse-based green card, couples have two primary options: adjustment of status and consular processing.
a. Adjustment of Status: This process is available to individuals who are already physically present in the United States. Adjustment of status allows the immigrant spouse to apply for a green card without leaving the U.S.
b. Consular Processing: If the immigrant spouse is outside the U.S. or cannot adjust their status in the United States, consular processing is an option. This process involves attending a visa interview at the U.S. consulate or embassy in their home country.
Initiating the Process
To start the spouse-based green card application process, you need to meet specific eligibility requirements:
- Marriage Legitimacy: Your marriage must be legally valid in the jurisdiction where it took place, and both parties must intend to establish a life together.
- U.S. Citizenship of the Incarcerated Spouse: Your U.S. citizen spouse must be willing to support your green card application.
- Inadmissibility Issues: Ensure that you, as the immigrant spouse, do not have any inadmissibility issues, such as a criminal record or immigration violations.
Collecting the required documents is a critical step in the application process. When your U.S. citizen spouse is in prison, obtaining these documents may be more challenging. Key documents include:
a. Marriage Certificate: Provide a copy of your marriage certificate to establish the legitimacy of your marriage.
b. Criminal Records: If your U.S. citizen spouse is incarcerated, you must obtain their criminal records, including arrest records, court documents, and sentencing information. Some crimes affect the ability of U.S. Citizens to sponsor their spouse for a green card so it is vital to know before applying if this will be the case or not.
c. Affidavit of Support: As the sponsoring spouse, your U.S. citizen spouse must sign an affidavit of support to demonstrate their ability to financially support you in the U.S.
d. Proof of Genuine Relationship: To prove that your marriage is bona fide, submit evidence such as joint bank accounts, photographs, and affidavits from friends and family.
Adjustment of Status Option
If you are already in the United States and choose to pursue adjustment of status, follow these steps:
1. File Form I-130: Your U.S. citizen spouse must file Form I-130, Petition for Alien Relative, to establish the qualifying relationship between you and your spouse.
2. File Form I-485: Once the I-130 petition is approved, you can file Form I-485, Application to Register Permanent Residence or Adjust Status, to adjust your immigration status to that of a lawful permanent resident.
3. Attend Interviews: The U.S. Citizenship and Immigration Services (USCIS) may schedule an interview to assess the validity of your marriage. Prepare to provide evidence of the authenticity of your relationship.
4. Waivers and Considerations: Consult with an immigration attorney if your U.S. citizen spouse’s incarceration raises legal issues.
Consular Processing Option
If you are outside the United States or cannot adjust your status in the country, consular processing is an alternative:
1. File Form I-130: Your U.S. citizen spouse must still file Form I-130, but you will need to attend a visa interview at the U.S. consulate or embassy in your home country.
2. Prepare for the Interview: Ensure you are well-prepared for the consular interview. You will need to demonstrate the legitimacy of your marriage and your eligibility for a green card.
3. Overcoming Challenges: If your U.S. citizen spouse’s incarceration raises concerns, consult with an immigration attorney to address potential issues that may arise during the interview process.
4. Travel to the U.S.: Once your immigrant visa is approved, you can enter the United States as a lawful permanent resident. Keep in mind that the immigration process may take several months.
Obtaining a spouse-based green card when your U.S. citizen spouse is in prison presents unique challenges, but it is a viable possibility with careful planning and professional guidance. Whether you choose adjustment of status or consular processing, the goal is to reunite families and provide a pathway for the immigrant spouse to live and work legally in the United States. Despite the hurdles, many couples successfully navigate this journey, reinforcing the power of love and determination in overcoming adversity.