Marrying a Citizen of China? How to Get a Green Card for Your New Spouse

If you are marrying someone from China, and plan to sponsor your new husband or wife for a marriage-based U.S. green card (lawful permanent residence), here is some important legal and practical information, concerning:

• basic eligibility for situations where foreign-born people are engaged to U.S. citizens or lawful permanent residents, and
• application procedures for interacting with U.S. immigration authorities in the United States and China.

Be warned: This is a general overview of how the process works for most people. Your situation might contain complicating factors or qualify for exceptions; see an attorney for a full analysis.

Immigration Eligibility Based on Engagement or Marriage

First, a little background on U.S. immigration law. Marriage to a U.S. citizen or lawful permanent resident provides foreign-born persons a direct path to U.S. immigration. Contrary to popular rumor, however, the foreign national does not immediately or automatically receive the right to immigrate, nor U.S. citizenship.

If you are a U.S. citizen, your new spouse becomes your "immediate relative," and may receive a green card as soon as the two of you make it through the application process. This can take six months to a year, or even longer.

If you are not yet married and your fiancé(e) is still in China, you can, if you are a U.S. citizen, petition for your fiancé(e) to enter the U.S. on a K-1 visa in order to get married—and then your new spouse can apply for a green card through a procedure known as adjustment of status, if desired.

You can also choose to get married first in China or another country, and then apply for an immigrant visa with which to enter the United States. (This visa is the equivalent of a green card. The actual card will arrive some weeks after your then-spouse's entry to the United States.)

If you are a lawful permanent resident, your new spouse becomes a "preference relative," in category F2A. That means your spouse can obtain permanent residence in the U.S. only after a "visa number" (space for another permanent resident) has become available. At that time, your spouse can apply for an immigrant visa (and enter the United States. Because of annual limits on the number of people who can get permanent residence in category F2A, a waiting list often develops, based on one's "priority date." The wait often takes around four years.

Permanent residents cannot petition for fiancé(e)s. You would have to get married and then apply on that basis.

Overview of Obtaining a Green Card Based on Marriage

The application process for a green card based on marriage involves multiple steps, such as submitting forms and documents and attending an interview with U.S. immigration authorities. The purpose of all this is to prove:

• the status of the U.S. petitioner (as a citizen or permanent resident)
• that a valid marriage has occurred (or will occur, in the case of a fiancé visa)
• that the marriage is bona fide (not a fraud or sham to get a green card), and
• that the immigrant is not inadmissible to the U.S. for medical, criminal, financial, or other reasons. (See Inadmissibility: When the U.S. Can Keep You Out for details.)

Procedurally, you might have more than one option as to where and how you apply, as described below.

Procedures When Applying for a K-1 Fiancé Visa

If you and your intended (who lives outside the U.S.) have not yet married—or have held an informal ceremony that does not count as an official marriage in the location where it was held—you can apply for a temporary (90-day) visa to enter the U.S. and hold the wedding.

The U.S. citizen starts this process by filing a petition on Form I-129F with U.S. Citizenship and Immigration Services (USCIS). After USCIS approves the I-129F, it will transfer the case to the National Visa Center (NVC), which then transfers the case to the U.S. consulate in Guangzhou. There, your fiancé(e) will apply for a K-1 visa, which involves submitting forms and documents and attending an interview with a U.S. government official.

After your marriage in the U.S., your new spouse can apply to USCIS for a green card, through a process called adjustment of status. The two of you will attend a green card interview at a local USCIS office. Upon approval, your spouse becomes a U.S. conditional resident, and should receive the actual green card by mail not long after. It will have a two-year expiration date, and you'll need to submit a joint petition to remove the conditions (Form I-751) soon before those two years expire.

Procedures for Your Spouse to Come From China on an Immigrant Visa

If you and your husband or wife have already married, and your spouse is currently in China, you would start the immigration process by filing Form I-130 with USCIS, to prove you're really married and you're really a U.S. citizen or permanent resident. (See Preparing an I-130 Visa Petition for the Immigrating Spouse of U.S. Citizen or Preparing an I-130 Visa Petition for the Immigrating Spouse of a U.S. Permanent Resident.)

After USCIS approves the I-130, spouses of U.S. citizens can continue forward with visa processing.

Spouses of permanent residents can obtain permanent residence in the U.S. only after space for a permanent resident in category F2A becomes available based on your spouse's "priority date." The wait is often around four years long. The good news is that by the time you receive actual approval of the I-130, some, if not all, of the wait time, if there is one, will have passed.

USCIS will then forward your file to the NVC, which will tell you when it's time for you to move forward with consular processing for an immigrant visa. The notification from the NVC will introduce you to the Consular Electronic Application Center (CEAC). After you and your spouse submit all the appropriate paperwork through the online CEAC system, the NVC will transfer the file and schedule the immigrating spouse for an interview at the U.S. consulate in Guangzhou. (The U.S. petitioner may attend, but is not required to.) For details on this part of the process, see What Happens Between I-130 Approval and Consular Interview.

Upon approval, the foreign-born spouse enters the U.S. on an immigrant visa, thus becoming a lawful permanent resident (or a lawful conditional resident, if your marriage is less than two years old at that time). Assuming you've paid the immigrant visa (green-card production) fee to USCIS, the green card will arrive in the mail several weeks later.

Where in China the Interview Will Be Held

Although the U.S. has consulates in several cities in China, only the consulate in Guangzhou handles immigrant visas. (Fiancé or K-1 visas, which technically are not immigrant visas, are processed as if they were immigrant visas.)

The NVC will let you know when your case file is transferred to Guangzhou. The notice you get from the NVC will give you instructions on what to do next.

If your spouse happens to be living in a country other than China, the consulate there would likely be the one to handle the case.

Procedures If Your Spouse Is Already in the U.S.

If your spouse came to the U.S. legally (such as on a fiancé or student visa or as a tourist), it might be possible to apply to adjust status in the United States. The main form for this is USCIS Form I-485. The two of you would attend an interview at one of USCIS's field offices.

Information about USCIS locations or service centers can be found at its website, www.uscis.gov. (Just make sure your spouse didn't commit visa fraud by using the nonimmigrant visa specifically to enter the U.S. and apply for a green card. See Risks of Entering the U.S. as a Tourist, Then Applying for Marriage- Based Green Card for details.)

If you are a U.S. citizen, it doesn't matter if your immigrating spouse is in legal status in the U.S. when you apply to adjust status. But if you're a permanent resident, your spouse must be in legal status.

There is one other major consideration for spouses of permanent residents wishing to adjust status: Before you can apply, you must reach the front of the waiting list we mentioned earlier. Unfortunately, the government might not tell you when your wait is over—you'll have to figure it out yourself. USCIS has a web page that explains how.

If your spouse entered the U.S. without inspection or by using a fake visa, or has ever been deported from the U.S., your situation is more complicated than this article can address. You might have difficulty obtaining a green card for your spouse, though it is not impossible. See an immigration attorney for details or if you have any questions about whether you qualify to adjust status.

Entering Into a Legally Valid Marriage

No matter where you marry, you will need to obtain a certificate that convinces the U.S. immigration authorities that it was legally recognized in the state or country where it took place. Below are some tips on doing that.

Obtaining Documentation of a Valid Marriage in China

If you have married, or plan to get married in China, you will first need to look into China's requirements for legal marriage.

According to information provided by the U.S. consulate, at least one member of the couple must be a citizen or long-term resident of China. The person marrying must be at least age 22 if a man or 20 if a woman, or even older in some regions. And if the intended spouse is still in school, watch out: The school is likely to expel the student upon finding out you have married. One school reportedly requires its students to reimburse it for uncharged tuition and other expenses upon withdrawal for the purpose of marriage to a foreigner.

Also make sure that your intended spouse is legally free to marry a foreigner. Certain categories of Chinese citizens, such as diplomats, security officials, and others whose work is considered to be crucial to the state, are not.

You will need to register your marriage with the marriage registration office of the local civil affairs bureau (Min Zheng Ju).

You, the U.S. citizen, will need to submit a registration fee, three photos of the two of you together, a current passport, and an affidavit of marriageability; the latter can be obtained from the U.S. consulate, but you might need to have it translated into Chinese by a service authorized by the civil affairs office. The documents your spouse must submit depend on what the local office requires.

After the ceremony, you will need to obtain a certificate of that marriage for purposes of U.S. immigration. The U.S. government keeps track of what documents are considered legally valid from each country, and will reject your marriage certificate if it doesn't come from the proper source. Check the State Department's Country Reciprocity Schedule to get further details on what documents from China it considers valid. What the U.S. is currently looking for is a so-called "notarial certificate."

Obtaining Documentation of a Valid Marriage in the United States

If you will hold your wedding in the U.S., you need to follow the laws of the state where you marry. You will need to obtain a marriage certificate from a local government office. A church certificate, for example, is not enough.

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