Factors such as the immigration status of the sponsoring spouse, the place of the marriage, and the timing of the marriage greatly affect the length and the sponsorship process itself. All these factors should be carefully taken into consideration before the petition to the USCIS is made.
Immigration Status of the Sponsoring Spouse:
The sponsoring spouse is the spouse that already has a lawful status in the United States, whether s/he is a United States Citizen (USC) or a Legal Permanent Resident (LPR).
If the sponsoring spouse is a USC, the USC’s spouse is considered an immediate relative of the USC and does not have to wait for the visa number to become available. Spouses, minor children and parents of the USCs may be admitted to the US in unlimited numbers.
Spouses of LPRs, however, are considered preference relatives, and therefore, are subject to the visa preference system. There is a limited number of visas available each year to the preference relatives.
Place of the Marriage
If the marriage to the USC or LPR takes place in the US, the sponsored spouse may be able to obtain lawful permanent residency status through “adjustment of status” without having to leave the US to obtain an immigrant visa abroad. Additionally, if the sponsoring spouse is a USC, and therefore, there is a visa number immediately available, the sponsored spouse may concurrently file for employment authorization document (EAD) pending the adjudication of the adjustment of status application. However, if the sponsoring spouse is a LPR, then the sponsored spouse, in order to live with the sponsoring spouse in the US, must maintain his/her independent nonimmigrant status until a visa number becomes available.
If the marriage, on the other hand, takes place aboard, the sponsored spouse will have to obtain lawful permanent resident status through “consular processing” and will have to remain abroad until granted an immigrant visa. The processing time will greatly depend on whether the sponsoring spouse is a USC or LPR. It will also depend on the processing times of the US Consulate having the jurisdiction over the sponsored spouse’s residence.
Timing of the Marriage
In marriages to USC, the timing of the marriage does not make any difference. Marriages, however, that take place before or after an LPR obtains his/her legal status, timing is everything.
If the marriage takes place after the sponsoring spouse’s green card is approved, then there is a substantial wait before immigration benefits can be conferred to the sponsored spouse. The LPR must file a family relative petition with the USCIS and wait for the priority date to become current to apply for the immigrant visa (consular processing) or “adjustment of status.”
If the marriage takes place, however, before the sponsoring spouse becomes a lawful permanent resident, then the alien spouse is entitled to “derivative” immigration benefits. This means that the “derivative” spouse is entitled to the same preference category as the sponsoring spouse and the same priority date. This is true even if the marriage occurs well after the priority date is set.