Mistakes to avoid when applying for a marriage-based green card

Attorney Hankins is an immigration attorney based in Seoul, South Korea and serves people from all over the world. She specializes in bringing families together. Don’t make the mistakes listed here — have someone in your corner who can guarantee the best possible outcome of your case.

When going through the process of getting your green card, or adjusting your status, there are a number of mistakes you can make. If you’re called in for an interview with U.S. Citizenship and Immigration Services officer, you may be excited or stressed. It’s not uncommon to make a few minor mistakes during this important interview, and the USCIS officers understand this. But some mistakes that may delay the approval of your application or, in some cases, cause it to be rejected.

Marriage Based Green Cards

Marriage to a US citizen or lawful permanent resident does not, by itself, automatically guarantee a marriage visa. The USCIS and the US State Department are always on the look out for marriage fraud and scrutinize marriage-based visa applications.

Some of the most common, and fatal, mistakes applicants make are:

  1. Failing to enter into a valid marriage

If your state recognizes common law marriage, it’s not enough to live together. If you were previously married, you must have proof that the marriage has ended. This is done by submitting death or divorce certificates. Failure to include this evidence will, at a minimum, result in your application being delayed while the USCIS requests this information from you.

You must be legally married under the laws and customs of the state or country in which you were married. Then you must submit evidence of your valid marriage, along with the initial petition. The actual marriage certificate, issued by a government agency, is required.

2. Attempting to apply for adjustment of status after entering the US unlawfully

Even if you’re married to a US citizen, if you entered the US unlawfully you are not eligible to adjust your status. The adjustment of status is mostly limited to people who entered the US legally. Submitting an adjustment of status application may even result in your being placed in removal proceedings.

3. Attempting to adjust status after using a tourist visa or visa waiver to enter the US

If you’re married to a US citizen, the USCIS expects you to start your green card process by filing an I-130 and then meeting with an officer in an overseas consulate. This process generally takes months. Some immigrants have tried entering the US on a tourist visa and then adjusting status.

Technically, this is a possible combination for some people. However, in order for this strategy to work, you need to prove that you didn’t misuse the tourist visa (commit visa fraud) in order to stay and get a US green card. If you visited the US and during your visit decided to get married, that’s normally okay. The longer the time period between the tourist visa entry and the submission of the green card application, the more chance the USCIS will approve it.

But if the USCIS believes you did abuse your tourist visa then your case can possibly be denied based on visa fraud (a ground for inadmissibility).

4. Failing to show sufficient financial support

If the USCIS believes that the beneficiary of an immigrant visa is likely to become a public charge (receive need-based public assistance or welfare), it’s likely they’ll deny your application. The US citizen or lawful permanent resident spouse must file an Affidavit of Support to prove that they either make a minimum statutory amount or have sufficient liquid assets. These assets must be enough to maintain your and sponsor’s household for a period of years, as determined by the US Poverty Guidelines.

Failure to file this affidavit or to show sufficient financial resources will result in your application being denied.

5. Failing to Complete the Application Properly

Leaving questions unanswered and entering inaccurate information are the most common ways to get your application delayed or denied. All information must match, and you must provide photos that meet the government’s specifications. Don’t take a risk by taking the photos at home.

Many applicants also fail to include all the necessary documents, including certified English translations, as well as supplemental evidence that shows that your marriage is legitimate.

If you have questions about adjusting your status, contact us here.

Returning to the US with a loved one?

Attorney Hankins specializes in bringing family together, no matter where in the world they might be. Barred in the United States and based in Seoul, South Korea, she handles cases from all over the world. For questions about how to bring your loved one to the United States e-mail her at Daphne@HankinsImmigration.com or call her at +82 010 3184 6858.  

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South Korea is the home of over 150,000 US citizens and many of them will find themselves contemplating marriage with a Korean citizen. But, as someone living in Korea, there are a number of things you’ll have to consider.

Should I get engaged or get married?

The Fiance Visa

Many US citizens believe it’s best to wait to get married and instead petition for their Korean or foreign born spouse on a K1 (fiancé visa). There are certainly some positives:

With a K1 visa, you have a shorter wait time to get your foreign born spouse into the United States. Usually, it takes 6 – 9 months for the U.S. Citizenship and Immigration Services (USCIS) to process the application, and 4 – 6 weeks for the agency to send an interview request to your fiancé’s nearest U.S. embassy or consulate.

If you’re in the US, it also means your spouse will be able to join you faster.

The form is also shorter and easier to fill out.

But the long-term disadvantages may, in certain cases, outweigh the short-term advantages.

Petitioning for your spouse and applying for a green card

A K1 visa costs more than your petition for your foreign spouse (I-130) and their adjustment of status / green card (I-485). A K1’s total costs are $2,025 versus an I-130 and I-485’s combined cost of $1,760.

Beyond costs, some people opt to get married in Korea or abroad and then apply for an I-130 because they intend to stay abroad for a year or more. If you’re on a year or two-year long contract, now is a fantastic time to submit your I-130.

After your I-130 is approved, if you intend to stay abroad for a little longer, you have the choice of opting for consular processing, an alternative to an I-485. It’s less expensive than an I-130 and I-485, with total costs amounting to around $1,200.

An I-130 can take 5 – 12 months to process and the I-485 8 – 14 months to process. Alternatively, consular processing takes only 4 – 6 months. This is the ideal option for those who are living abroad with their spouse but want to be able to take them to the United States sometime down the road.

Petitioning for your spouse abroad also has hurdles, including providing evidence that you intend to return to the US and that you have a job waiting for you once you arrive. For these reasons, it’s a good idea to have an attorney by your side to navigate the unique legal hurdles.

For help with your K1 visa or spousal petition, contact Daphne@HankinsImmigration.com or call at +82 10 3184 6858.