Marriage-Based Green Card for Canadians

A Canadian citizen who is married to an American can apply for a marriage-based green card

A Canadian citizen who is married to a U.S. citizen is entitled to apply for permanent residency – also known as a green card. There are two options to apply for a green card through marriage: 1) Adjustment of status, and 2) Consular Processing. You can also read more about Canadians marrying a U.S. citizen by clicking here.

Adjustment of Status

If the Canadian citizen is already in the United States in lawful status, such as F-1 status, TN status, H-1B status, E-2 status, O-1 status, or L-1 status, they may apply to adjust their status through USCIS. This will require the U.S. citizen spouse to file a petition to sponsor the foreign spouse, and for the foreign spouse to file an application for adjustment of status.

If the Canadian citizen is in the United States as a B-2 visitor, it is possible to adjust their status through marriage. However, there is an issue of preconceived intent. In other words, there cannot be any intention to apply for a green card at the time a Canadian citizen is entering the U.S. as a visitor. If USCIS finds that there was an intent to immigrate at the time of entry, the green card application may be denied.

Consular Processing

If the Canadian citizen is outside of the United States, the other option is to apply for a green card through consular processing. Like adjustment of status, this will also require the U.S. citizen spouse to file a petition to sponsor the foreign spouse. However, once the petition is approved, the foreign spouse must wait for an interview at the U.S. Consulate in Montreal. If approved, he or she will be issued an immigrant visa to enter the United States, at which time the green card will be issued.

Conditional residency versus Permanent Residency

Marriage-based green cards may be issued for either 3 years or 10 years, depending on whether USCIS approved the Canadian spouse for conditional or permanent residency. If you have been married for fewer than two years at the time of the interview, the green card will be valid for 2 years – which is referred to as conditional residency. If you have been married for more than two years at the time of the interview, the green card will be valid for 10 years – which is referred to as permanent residency.

If USCIS issues conditional residency (2-year green card), the couple will have to jointly apply for permanent residency (10-year green card) within the 90-day window prior to the expiration of the conditional green card. As with the initial application, the couple must provide evidence demonstrating their ongoing bona fide marriage.

Example: Johnny married a U.S. citizen in June 2017 and he received his conditional green card on July 1, 2018. He and his wife must apply to remove the condition of his residency sometime between April 1, 2020 and July 1, 2020.

The rationale behind the conditional residency requirement 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.