Marriage-Based Green Card

A Canadian citizen who has married a U.S. citizen is generally entitled to apply for permanent residency. This process is known as "adjustment of status," and it requires the cooperation of both the U.S. citizen as well as the Canadian citizen spouse.

Green Cards for Same Sex Marriage

The U.S. Supreme Court struck down DOMA in June 2013, which means that U.S. citizens in a same sex marriage are now eligible to sponsor his or her Canadian spouse for a green card (permanent residency). Applicants are eligible so long as they were married in a jurisdiction in which same sex marriage is legally permitted.

Procedure

The U.S. citizen spouse will file a form known as "Petition for Alien Relative" with the USCIS, petitioning for the Canadian spouse to become a U.S. permanent resident. As part of the petition, the U.S. citizen will also have to sign an affidavit of support, declaring that he/she will be financially able to support the Canadian citizen and that he/she will not be a public charge. In other words, the U.S. citizen spouse is declaring that he/she can support his/her spouse so that the spouse does not become a burden to society by way of collecting unemployment insurance etc.

The Canadian citizen spouse may concurrently file a form known as an Application to Register Permanent Residence or Adjust Status, seeking to change the Canadian’s current immigration status to that of a permanent resident. Depending on the Canadian’s situation, he/she may also apply for a temporary work permit or a temporary travel permit. These are optional, and should only be sought if the Canadian citizen is not currently on a valid work visa or anticipates that the work visa will expire before the green card is approved. The Canadian citizen will also have to get fingerprinted and undergo a medical examination by a designated civil surgeon to ensure that he/she is healthy - again, so as not to become a public charge.

Conditional residency

Upon approval of the adjustment of status, the Canadian citizen will be given what is known as "conditional residency." This means that the Canadian citizen will be a U.S. resident and will get a green card - with a caveat. The caveat is that the both spouses must jointly apply to remove the condition within the three months prior to the second anniversary of receiving residency, thereby turning the "conditional residency" into "permanent residency."

Example: Johnny married a U.S. citizen in 2010. After filing all the paperwork, he received his conditional residency green card on January 1, 2011. He and his wife must apply to remove the condition of his residency sometime between October 1, 2012 and December 31, 2012 - since this is the three-month period just prior to January 1, 2013, which is the second anniversary of receiving conditional residency.

The rationale behind this process is to prevent non-U.S. citizens from entering into fraudulent marriages in order to obtain a green card. After all, many foreigners marry U.S. citizens simply to get a green card in order to stay and work in the country. The USCIS requires married couples to show that their marriage is still intact two years later in order to curtail such abuse.

Once the application for removal of the condition is removed, the Canadian citizen becomes a full-fledged U.S. permanent resident. Be careful though, as the Canadian citizen risks losing his/her residency if the couple forgets to remove the condition within the appropriate timeframe. So remember to mark the one-year and nine-month date of receiving conditional residency on your calendar.

What if I get divorced before the two-year anniversary?

It is common in this day and age for marriages to last fewer than two years (or even two months, for that matter). For Canadian citizens whose conditional residency has not been removed, this could lead to problems with their immigration status. Generally, divorce terminates conditional residence. However, the Canadian citizen may be able to apply for a waiver of the failure to remove the condition if he/she can prove that the marriage was bona fide, entered into in good faith, and that he/she was not at fault for failing to file the joint petition.

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