Marriage to U.S. citizens makes foreign-born persons eligible for a green card; that is, for U.S. lawful permanent residence. But it doesn't instantly qualify someone for U.S. citizenship. Getting a green card is just the first step toward eligibility for U.S. citizenship through the process known as naturalization. This process is much the same whether you received your green card through marriage or for some other reason, but a marriage to a U.S. citizen means you can potentially apply for U.S. citizenship sooner than most other people.
Who Qualifies for a Green Card Based on Marriage
In order to obtain lawful permanent residence through marriage to a U.S. citizen, the foreign-born national will first need to prove that the marriage is lawful. That means not only that it is recognized by the relevant legal authorities, but that, for instance, neither person is underage or is already married to someone else.
For legal purposes, it doesn't matter whether the marriage took place in the United States or in another country. And same-sex marriages are recognized by U.S. immigration law, so long as they took place in the United States or in a country where same-sex marriage is legally allowed.
You also need to prove that the marriage is bona fide. That means that you truly intend to establish a life together and are not submitting a fake or fraudulent application as a sham to get a green card (see further discussion below).
Another important part of the application process is proving that the foreign-born person is not "inadmissible" to the United States due to past commission of crimes, affiliation with terrorist groups, major health problems that might affect others, or various other grounds. Inadmissibility can be a major problem for couples who are low-income and seeking a green card. U.S. immigration law does not allow someone to immigrate who is considered likely to become a "public charge." That means likely to require need-based public assistance (often referred to as "welfare").
Another ground of inadmissibility that's a common barrier to a marriage-based green card is when the foreign-born spouse has spent more than 180 days in the U.S. unlawfully, whether after an illegal entry or entry on a visa. An unlawful stay of between 180 and 365 days will, if and when the person leaves the U.S. for a visa interview at the U.S. consulate in their home country, create a 3-year bar on returning to the United States. An unlawful stay of 365 days or more creates a 10-year bar. A waiver of this bar might be available in some cases, based on showing hardship to one's relatives in the United States. The so-called "provisional waiver" (Form I-601A) can be filed before leaving the United States, if you aren't also inadmissible for other reasons. (If you do face other inadmissibility issues, you would be able to file an I-601 waiver only after departing the United States and attending the U.S. consular interview.)
Your best bet is to get a lawyer's help to apply for this waiver, if you need it; or you might be able to avoid the entire issue by "adjusting status" in the United States, which is typically possible for couples where the immigrant entered legally, most likely on a visa or under the Visa Waiver Program (VWP).
What Is a Bona Fide Marriage for Immigration Purposes?
The phrase that U.S. Citizenship and Immigration Services likes to refer to in defining a bona fide marriage is: "A marriage cannot be considered bona fide if it was entered into for the sole purpose of evading U.S. immigration law." (See Matter of Laureano, 19 I&N Dec. 1 (B.I.A. 1983).)
This doesn't mean it has to be a good marriage, or one that's likely to last. The green card application process doesn't penalize couples who argue, or consider splitting up, or seek counseling. (In some cases, these can even be indicators of a real relationship!)
In fact, a marriage won't be considered fraudulent if it doesn't involve sexual relations. (See Matter of Peterson, 12 I&N Dec. 663 (B.I.A. 1968).) This case concerned a couple who lived together but had not consummated the marriage, and occupied separate bedrooms.
The marriage does, however, need to be entered into with the intention of actually sharing a life rather than the intention of procuring a U.S. green card. (And, having children together is usually seen as excellent proof that the marriage is real.)
Faking a Marriage to Get a U.S. Green Card Is a Crime
U.S. law doesn't look kindly upon marriages of convenience between foreign nationals and U.S. citizens. To combat what is sees as a major problem with marriage fraud, Congress has filled U.S. federal law with provisions designed to ensure that any non-citizen who applies for a marriage-based green card is doing so based on a bona fide, otherwise known as real marriage.
For starters, the U.S. government tries to weed out fake marriages at the application stage. The entire green card application process places large burdens on immigrants and their U.S. spouses to submit documents and evidence proving that the marriage is real, not a sham. As a backup, the law contains criminal penalties that can be imposed on both the U.S. citizen and the immigrant who violate the law and commit (or attempt to commit) marriage fraud.
The Department of Justice (DOJ) says that the "typical" marriage fraud fact pattern includes the U.S. citizen receiving money from the immigrant in return for entering into a fake marriage. In a major 2019 fraud case, for example, immigrants paid approximately $50,000 to $70,000 to a marriage fraud ring in hopes of obtaining green cards, but many were instead arrested.
Nevertheless, payment isn't required in order to be prosecuted for marriage fraud. Simply entering a sham marriage and trying to gain immigration benefits that way is a crime.
What Penalties Might a U.S. Citizen Face for Committing Marriage Fraud?
Federal criminal law says that anyone who "knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both." (See Immigration and Nationality Act § 275(c); 8 U.S.C. § 1325(c).)
In other words, the possible penalties for the U.S. citizen include prison, a monetary penalty, or a combination of the two. The most severe penalties are, however, usually reserved for people who are part of a marriage fraud ring, or acting in flagrant violation of the law.
What Penalties Might a Would-Be Immigrant Face for Committing Marriage Fraud?
The federal law section cited above applies to the foreign-born spouse as well as the U.S. citizen. A foreign-born person who is in the U.S. when apprehended for marriage fraud could be required to serve prison time here in the U.S., only to be deported afterwards.
In addition, the immigrant would face permanent immigration-related penalties. With marriage fraud (or attempted fraud) on one's immigration record, USCIS will not approve any future petition to immigrate, whether based on family or employment. (See I.N.A. § 204(c). and How Marriage Fraud Leads to Possible Removal and Inadmissibility Upon Attempted Reentry.)
How Does Someone Apply for a Marriage-Based Green Card?
The exact process depends on where the foreign spouse is living and other factors, such as whether the U.S. spouse is a citizen or a lawful permanent resident. If the foreign spouse is already living lawfully inside the United States, or entered lawfully but overstayed, they might be able to adjust status, that is, submit all application materials to USCIS and attend the interview in the United States.
If the foreign spouse is living abroad, "consular processing" is their only realistic choice. It means interacting with USCIS initially (for approval of the Form I-130 petition) then interacting with the National Visa Center (NVC), attending an interview at a U.S. consulate and receiving an immigrant visa for U.S. entry.
Foreign spouses in the United States who entered illegally, without official permission, cannot in most cases adjust status. Their only choice is, in most cases, consular processing, with all the risks of being found inadmissible and blocked from return that entails.
Some Green Card Applicants Must Spend Two Years as "Conditional Residents"
If your marriage was less than two years old when you applied for the green card, USCIS wants a chance to take a second look at whether it is bona fide. You will therefore be what's called a "conditional resident" for two years. Importantly, those two years count as "permanent residence" for purposes of the lead-up to applying to U.S. citizenship, but an extra step gets added to the process.
Ninety days before your two years of conditional residence have ended, you and your U.S. citizen spouse will need to submit a joint petition using USCIS Form I-751, requesting that the conditions on your residence be lifted and that you be allowed to become a permanent resident. (Exceptions are also available in situations where the immigrant cannot obtain the U.S. citizen spouse's signature, for example if the spouse is abusive or has passed away.)
Going From Green Card Holder to Naturalized Citizen in Three Years
After successfully getting through the process of obtaining a green card based on marriage to U.S. citizen, the foreign-born person has a major advantage when it comes time to applying for naturalized U.S. citizenship.
While most green card holders must wait five years before they naturalize, those married to and living with a U.S. citizen need to wait only three years. However, you must still be married, both when you apply for citizenship and up through the time when U.S. Citizenship and Immigration Services (USCIS) not only approves your naturalization request but swears you in as a new citizen.
If the marriage ends or the two of you begin living apart, you will need to wait until a full five years have passed from the date of your approval for residence before you apply to naturalize. Or, if the U.S. citizen passes away before the immigrant becomes a U.S. citizen, the immigrant will lose the advantage of this exception and will need to wait five years from the date of approval for a green card to apply.
By the way, this exception also applies to people who obtained their green card in some other way, so long as they were also married to and living with a U.S. citizen for three years before applying to naturalize.
Criteria for Becoming a Naturalized U.S. Citizen
Although spouses of U.S. citizens can apply for citizenship sooner than others, they must still satisfy a number of criteria to become a naturalized U.S. citizen. These include that the immigrating spouse:
- has held green-card holder status for at least 3 years
- has lived in the U.S. continuously for the 3 years leading up to submitting the citizenship application, during which time the immigrant has not spent more than 1 continuous year outside the U.S.
- has been physically present in the U.S. for at least half of the 3 years before submitting the citizenship application
- has lived in the district or U.S. state where submitting the citizenship application for a minimum of 3 months
- is at least 18 years old
- has good moral character (and hasn't committed any crimes or other violations that would bar them from citizenship)
- can demonstrate an ability to speak, read, and write in English
- can pass a test regarding knowledge of U.S. history and government (civics), and
- is willing to swear to a belief in the principles of the U.S. Constitution and to be loyal to the United States (with modifications and exceptions in certain circumstances).
Various exceptions exist to these requirements, for example allowing applicants of a certain age to take an easier version of the exams. Members of the U.S. Armed Forces are also offered various exceptions to make applying for citizenship easier.
Form N-400 Begins the Naturalization Application Process
If you meet the U.S. citizenship eligibility requirements, the main part of the naturalization application process involves submitting Form N-400, together with a copy of your green card (front and back), various other documents, and a fee, to USCIS.
When applying early based on a three-year marriage to a U.S. citizen, you'll need to remember to include documents that confirm your marriage and joint residence, such as your spouse's birth certificate or naturalization papers proving that they've held citizenship for at least three years, your marriage certificate, and a copy of a document such as a jointly submitted tax return or jointly held mortgage showing that you've been living together for the required three years.
USCIS Will Contact You for an Interview
After you submit Form N-400 and your other documentation, the naturalization process is the same as for all other applicants. You must go to an USCIS-approved location for biometrics (fingerprinting, photographs, and a signature) and later participate in a USCIS-scheduled interview. The interview will test your knowledge of U.S. government and history, and your interviewer will talk with you to test your knowledge of English and to review the information on your application. You'll also need to show that you can read and write in English.
Also bring documents to the interview showing that your marriage is ongoing, if you applied after three years with a green card.
If all goes well, you will be sworn in as a U.S. citizen soon after.
Questions for Your Immigration Lawyer
Thinking of hiring an attorney? Here are some questions you might want to ask.
- I am living in the U.S. unlawfully, and have married a U.S. citizen. Will I be able to apply for a green card?
- What's the earliest I can submit my application for U.S. citizenship?
- My marriage has had some difficulties, and my U.S. citizen husband sometimes goes to stay with his parents, or sleeps on a friend's couch. Will this affect my eligibility to apply for U.S. citizenship after three years?
- My U.S. citizen spouse and I divorced briefly, then made up and remarried. When can I apply for U.S. citizenship?