2y or 10yr GREEN CARD?

[Carlos H 0]

Hello, this is my case back in December, 2011 my I-130 was approved after my interview with my wife but not my I-485 due to the fact that I was missing a vaccine, after a long extra process and 7 extra months and 6 more appointments! It was finally approved (long story) anyway here is my question back in December when my 1-130 was approved during the interview I was already married to my wife for 1yr and 8 months and now that the I-485 was approved it's well over 2yrs I just got the email of card in production today. The question is I'm I going to get a 2yr or a 10yr Green Card? And how much longer till I can apply for Citizenship? Thank you for reading and help.

[Kazulie 132]

If you are still married, you can file for citizenship 90 days short of your 3 year anniversary of being approved for your green card.

If you divorce by then, it's 5 years.

[bigdog 376]

I think it will depend on the dates on your green card when you get it. My wife's appears to have been back dated so we are going to see.

[ceadsearc 516]

Did you come on a K-1? K-1s always get a 2-year card.

[VanessaTony 3,567]

Did you come on a K-1? K-1s always get a 2-year card.

They filed an I-130 (per the OP) so it's likely they're going to get a 10 year card seeing it was approved after they had been married 2 years.

[Mogambi 96]

I don't believe a K1 is always a 2 year green card. If someone waiting for two years after marriage before applying for AOS, they will look at the date of the wedding. If you have been married for two full years by the time they GC is issued, you will be issued a 10 year green card.

If under 2 years of marriage, the GC will be 'conditional'.

I do not know in that case, if the Green Card will be conditional for two full years, or just until you have been married for two years.

[VanessaTony 3,567]

I don't believe a K1 is always a 2 year green card. If someone waiting for two years after marriage before applying for AOS, they will look at the date of the wedding. If you have been married for two full years by the time they GC is issued, you will be issued a 10 year green card.

If under 2 years of marriage, the GC will be 'conditional'.

I do not know in that case, if the Green Card will be conditional for two full years, or just until you have been married for two years.

You can "not believe" it all you want but the rules state that anyone AOSing from a K1 MUST get a 2 year card first. It doesn't matter how long they've been married. However if a K1 waits long enough and files an I-130 together with their I-485 then they're AOSing based on the I-130, not the I-129F of their K1 and therefore not bound by the "must get a 2 year card first" rule. This has been explained on here many times.

[SOflaherty 40]

The date is based on when your green card was approved, not when the papers were filed, so you will get a 10 year card.

The I-130 just means USCIS acknowledges that you are married to a USC. The I-485 is the form that actually requests to make you a permanent resident, and is what you actually have approved to get your green card.

Edited July 2, 2012 by SOflaherty

[SOflaherty 40]

You can "not believe" it all you want but the rules state that anyone AOSing from a K1 MUST get a 2 year card first. It doesn't matter how long they've been married. However if a K1 waits long enough and files an I-130 together with their I-485 then they're AOSing based on the I-130, not the I-129F of their K1 and therefore not bound by the "must get a 2 year card first" rule. This has been explained on here many times.

Typically a K-1 gets married within 90 days of entry, and files AOS immediately. Because they are married less than 2 years, they always get the 2 year card.

If they wait longer than 90 days to get married, they invalidate the K-1 visa and begin a period of overstay, and at that point must file an I-130 petition alongside the normal I-485 etc, even if they only waited until day 93 to get married instead of inside the required 90 day time frame. If they get married outside the 90 days, and wait until nearly 2 years after their wedding to begin the process to adjust status, they will get the 10 year card, but they will have been out of status the entire 2 years they waited.

Just clarifying, because I got a little confused myself reading that.

[SOflaherty 40]

That should be 'get married inside the 90 days and wait till nearly the 2 year wedding anniversary'(although I guess could be either). Can't edit my post for some reason.

[VanessaTony 3,567]

Typically a K-1 gets married within 90 days of entry, and files AOS immediately. Because they are married less than 2 years, they always get the 2 year card.

If they wait longer than 90 days to get married, they invalidate the K-1 visa and begin a period of overstay, and at that point must file an I-130 petition alongside the normal I-485 etc, even if they only waited until day 93 to get married instead of inside the required 90 day time frame. If they get married outside the 90 days, and wait until nearly 2 years after their wedding to begin the process to adjust status, they will get the 10 year card, but they will have been out of status the entire 2 years they waited.

Just clarifying, because I got a little confused myself reading that.

Yes and no. in short:

- Arrive on K1, get married in 90 days, file only I-485 = 2 year card. Doesn't matter how long they've been married before they file. AOS based on the K1 MUST get the 2 year card first.

- Arrive on K1, get married outside 90 days, file I-130 and I-485. Length of marriage dictates whether you get the 2 or 10 year card

- Arrive on any other visa you need to file the I-130 and i-485 anyway and length of marriage matters for 2 or 10 year card.

[grrrrreat 109]

Typically a K-1 gets married within 90 days of entry, and files AOS immediately. Because they are married less than 2 years, they always get the 2 year card.

If they wait longer than 90 days to get married, they invalidate the K-1 visa and begin a period of overstay, and at that point must file an I-130 petition alongside the normal I-485 etc, even if they only waited until day 93 to get married instead of inside the required 90 day time frame. If they get married outside the 90 days, and wait until nearly 2 years after their wedding to begin the process to adjust status, they will get the 10 year card, but they will have been out of status the entire 2 years they waited.

Just clarifying, because I got a little confused myself reading that.

There's a terrible case about a K-1 entrant who ended up applying to adjust status based on another relationship, not marriage to the fiancee who petitioned for the K-1 (I can't remember if it was the person's child or the person had married a different spouse). The court read the rules to say that the K-1 could only adjust based on marriage to the fiancee. That part is probably right. They also stated, however, that the person had to adjust to conditional resident first. That part is probably wrong.

As you note, if the alien waits more than two years to file a new I-130 and I-485, they'll get a 10-year permanent resident card, not a conditional one. Technically under the rules as explained by the court, even that person would need to first adjust to conditional resident. But that person couldn't be a conditional resident because they had been married for more than two years! It's a strange dilemma and it looks like USCIS has decided to obey the first part (you have to adjust based on marriage to the K-1 fiancee), but not the second (you have to adjust first to conditional resident).

[SOflaherty 40]

Yes and no. in short:

- Arrive on K1, get married in 90 days, file only I-485 = 2 year card. Doesn't matter how long they've been married before they file. AOS based on the K1 MUST get the 2 year card first.

Do you have a reference for this? Curious, because the guides here and everything I am reading everywhere else says 2/10 is based on the length of the marriage at the time of filing even in the case of K-1. Is it a recent change?

[VanessaTony 3,567]

Do you have a reference for this? Curious, because the guides here and everything I am reading everywhere else says 2/10 is based on the length of the marriage at the time of filing even in the case of K-1. Is it a recent change?

There are a lot of threads about it. I was able to find this thread: http://www.visajourney.com/forums/topic/260848-denied-at-interview/page__view__findpost__p__4040924 where I found out about it (in 2010 so no it's not new). It contains the specific sections of the INA.

Can you point out where in the guides it says based on length of marriage for a K1 (sans I-130)? I will report it to be changed.

[SOflaherty 40]

Looks like it needs an update for sure. Quote is at the very bottom of the K-1 AOS guide.

http://www.visajourney.com/content/k1k3aos

(2) If the beneficiary and petitioner have been married less than two years at the time the I-485 is approved then the beneficiary will receive what is called a "conditional" legal permanent residence. This simply means that the beneficiary will have to renew his/her greencard 2 years from the date it was originally "issued" by filing an I-751 to remove conditional status. When filing this form you will need to again show proof of your valid and ongoing marriage.