by Julia Brown
Myth 1: Marriage to a U.S. Citizen Guarantees Immediate Citizenship or Green Card
Most people believe that marriage to or a family relationship with a U.S. Citizen automatically grants you US citizenship, however, this is not true. Marriage to or a family relationship with a U.S. Citizen can be a great way for you to be granted access to green card applications, which could eventually lead to US citizenship. This is considered to be a huge immigration step to lead you down the path of permanent residency, however, it does not grant immediate citizenship and some factors can make people ineligible for this despite otherwise qualifying, like prior criminal and immigration violations.
Difference Between Green Card v. Citizenship
What is the difference between a green card and citizenship? The technical term for having a green card is being a “lawful permanent resident” and the green card is the identification card/document authorizing you to work and live in the United States permanently, but still stay citizens in your home country. Citizenship means that you hold complete legal status in the country and are protected with responsibilities and full rights under the law. All green card holders, as long as they meet key conditions, can apply for U.S. citizenship after five years, but those with a U.S. spouse and a green card through marriage can apply after only three years.
3-Year Rule
When can I apply for citizenship after obtaining my green card? A key condition for applying under the three-year rule versus the five-year rule is that you must have been “living in marital union,” meaning you have to have been living together with your U.S. spouse for at least 3 years before filing for naturalization. However, 3-year eligibility means living with AND being married to a spouse WHILE having permanent residence/green card for the three years.
5-Year Rule
The five-year rule does not require this “living in marital union” portion. Importantly, you and your U.S. spouse must remain married until the time the applicant naturalizes but the “living in marital union” requirement is only required until the time of filing. If you divorce your U.S. spouse before three years, you will no longer be eligible for the three-year rule and then have to apply under the five-year rule. Additionally, although there are certain exceptions under extenuating circumstances, applicants generally also need to be living with their spouse for this to apply. While this might seem like a setback, it still presents a pathway to citizenship, even if your marriage has ended.
Physical Presence Requirement
To be eligible to apply for citizenship, applicants must also satisfy the “physical presence and residency” requirements under immigration law. This means the applicant must be physically present and physically residing/living in the US in the 3 or 5 years (depending on if they are applying under the 3 year rule or 5 year rule) prior to being granted citizenship. This prevents permanent residents who only spend a couple of months per year in the US (suggesting that they don’t truly live here) from trying to apply for citizenship.
Myth 2: Family-Based Immigration is a Quick and Easy Process
A common misconception about family-based immigration is that it’s a quick and easy process. There are two main types of categories for immigrating through a family member: Immediate Relative Petitions and and Family-Based Petitions. Immediate Relative Petitions are only for spouses, parents and unmarried children under 21 years of age of US citizens. Family-based green cards are split into different ‘preference immigrant’ categories. The categories include Family First Preference (F1): Unmarried sons and daughters over the age of 21 of U.S. citizens, and their minor children, if any. (23,400) Family Second Preference (F2): Immediate relatives such as spouses, minor children, and unmarried sons and daughters (age 21 and over) of LPRs (Legal Permanent Residents), (F3): Married Sons & Daughters of US Citizens, & Siblings of US Citizens.
For more information on Family-Preference Petitions, please visit the official USCIS website: https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-family-preference-immigrants
For more information on Immediate Relative Petitions, please visit the official USCIS website: https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-immediate-relatives-of-us-citizen
Caps on Family-Based Petitions
At least seventy-seven percent of all visas available for this category will go to spouses and children; the remainder is allocated to unmarried sons and daughters. (114,200) Family Third Preference (F3): Married sons and daughters of U.S. citizens, and their spouses and minor children. (23,400) Family Fourth Preference (F4): Brothers and sisters of U.S. citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age. (65,000) For instance, the first preference visa is only applicable to unmarried sons and daughters of U.S. citizens.
Processing Times
Depending on where you apply for your family-based green card, it can take up to 33 months. Some U.S. Embassies abroad and USCIS offices are busier than others, and it may take longer to get help depending on your specific circumstances. Family-based green cards are in high demand, and in some cases, it can take up to 10 years to obtain one. For some categories, the wait can be over a decade, and for individuals from certain countries, it can be over two decades for certain categories.
Benefits of Hiring an Attorney
Why is it important for me to hire an attorney for this? Many reasons would be beneficial for hiring an attorney to help you through this process. Some factors include in-depth legal knowledge, customized strategic advice, comprehensive procedural support, assurance and stress reduction, representation, and advocacy. The decision to hire an immigration lawyer is not just beneficial; it’s often indispensable. The immigration system is very complex and these systems are always changing.The attorney can provide guidance as well as ensure that all documentation is submitted correctly, and plays a pivotal role in assisting you with any issues or challenges that can arise along this lengthy process. Errors in preparing the forms, submitting the incorrect forms, and not sending all required or suggested documentation could lengthen the process and cost you a lot more money.
Factors that Affect Processing Time
What are some things that contribute to lengthening the process? Many factors contribute to the family-based immigration process, including background checks, waiting for visa availability, petition filing, and additional documentation and interviews. Consulting with an attorney is the best way to guide you in a complex situation.
