Marriage-Based vs. EB-1C Green Card: Which is Right for You?

Dear Sophie: Navigating Green Card Options

This is another installment of “Dear Sophie,” a column dedicated to addressing immigration questions specifically related to employment within the technology sector.

Sophie Alcorn, a Silicon Valley immigration lawyer, emphasizes the importance of these questions. She states that they are crucial for disseminating knowledge, empowering individuals globally to overcome geographical limitations and achieve their aspirations.

Whether you are involved in people operations, are a company founder, or are actively seeking employment in Silicon Valley, Sophie welcomes your inquiries for inclusion in her next column.

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Dear Sophie,

My fiancé and I became engaged earlier this year. We are planning a wedding later in the year to coincide with travel plans for my family from Estonia, my country of origin.

I have been residing and working in the U.S. for nearly two years under an L-1A visa. My employer is currently sponsoring me for an EB-1C green card, but the process is progressing slowly.

I am now considering pursuing a green card through my spouse after our marriage. Are there specific considerations I should be aware of? Additionally, would retaining my maiden name after marriage present any issues?

— Fantastic Fiancée

Dear Fantastic,

Congratulations on your engagement!

My colleague, Anita Koumriqian, and I recently reflected on how our initial clients as immigration lawyers were navigating the process of obtaining marriage-based green cards. We find great satisfaction in supporting couples through this journey!

We also discussed the K-1 Fiancé(e) Visa on our podcast. It’s a topic worth exploring.

It’s understandable that you are evaluating alternative green card pathways. The EB-1C green card, designed for multinational transferee executives and managers, requires at least one year of employment with the multinational company outside the U.S. within the preceding three years. Currently, there is no premium processing option available for this category.

This company-specific nature can create challenges if you were to consider a change in employers.

I strongly advise consulting with an immigration attorney. They can assess your specific circumstances and objectives, and guide you through the marriage-based green card process. They can also accompany you and your husband to the green card interview should you choose this route.

Choosing between a marriage-based green card and the EB-1C requires careful consideration.

Key Considerations:

• EB-1C Requirements: Demonstrating qualifying employment outside the U.S. is essential.
• Processing Times: Marriage-based green cards and EB-1C visas have varying processing timelines.
• Portability: The EB-1C is tied to a specific employer, potentially limiting job flexibility.
• Name Change: Retaining your maiden name generally does not pose a problem, but proper documentation is crucial.

A qualified attorney can provide personalized advice based on your unique situation.

Remember, navigating the U.S. immigration system can be complex. Seeking expert legal guidance is always recommended.

Maintaining Your Maiden Name and Green Card Eligibility

It is entirely permissible to retain your maiden name following marriage. This decision will not negatively affect your ability to obtain a green card through marriage. The fundamental requirement for a marriage-based green card is proving that the union is genuine and founded on affection, legally defined as a “bona fide” marriage.

Establishing the legitimacy of your marriage involves demonstrating a shared life with your spouse. Immigration officials will assess the authenticity of your relationship.

Evidence of a Bona Fide Marriage

The immigration officer reviewing your application will seek evidence confirming your marriage is genuine. This evidence can include:

• Photographs from your wedding ceremony and shared life events.
• A joint lease agreement or mortgage demonstrating shared residency.
• Documentation indicating each spouse is designated as the beneficiary in the other’s 401(k) plans.
• A shared bank account used for regular household expenses.
• Insurance policies (automobile or homeowners) listing both names.
• Any other documentation illustrating the integration of your lives.

Your immigration attorney can assist in gathering and presenting this documentation to create a strong petition and application. Many individuals who have chosen to keep their maiden names have successfully been granted green cards.

There are numerous ways to convincingly demonstrate the authenticity of your marital bond, regardless of name changes.

Successfully proving the bona fides of your marriage is the key to a favorable outcome.

Advantages of Obtaining a Green Card Through Marriage

Both a U.S. citizen and a lawful permanent resident have the ability to sponsor their spouse for a green card. A significant advantage of securing a green card via marriage is the potentially faster processing time compared to employment-based options like the EB-2 or EB-3. These employment routes often necessitate navigating the PERM labor certification process, or potentially the EB-1C pathway.

When a U.S. citizen sponsors a spouse, they are classified as an “immediate relative,” effectively removing the impact of the Visa Bulletin’s wait times.

Currently, premium processing isn't available for EB-1C green card applications. This service, offered by U.S. Citizenship and Immigration Services (USCIS), guarantees a decision or request for further evidence within 15 business days of application receipt.

Furthermore, the EB-1C process frequently involves substantial time commitments, requiring at least one year of employment with the sponsoring company outside of the United States prior to eligibility. Additionally, AC21 portability—allowing a change of employer while the application is pending—is restricted to the same or a similar occupation after 180 days from the I-485 filing date.

Upon marriage, the U.S. citizen spouse can submit Form I-130, Petition for Alien Relative. This form validates the marital relationship and initiates the family-based green card procedure.

Concurrent filing of Form I-485, Application to Register Permanent Residence or Adjust Status, is currently permitted when sponsoring a spouse, whether the sponsor is a citizen or a permanent resident.

For individuals not born in countries with significant backlogs—such as Estonia, unlike China or India—an employer could simultaneously file Form I-140, Immigrant Petition for Alien Worker. This serves as the employment-based equivalent to Forms I-130 and I-485.

Applicants originating from China or India often encounter extended waiting periods for Form I-485 processing due to the numerical limitations and per-country quotas imposed by the U.S. on many employment-based and some family-based green cards. Green cards for spouses and children of U.S. citizens and permanent residents, as well as green cards for the parents of U.S. citizens, are exempt from these quotas.

Another consideration is that a marriage-based green card generally requires a smaller financial outlay and less administrative burden than an employment-based route. Some clients have benefited from employers willing to cover all or part of the legal and filing fees associated with the expedited marriage-based process.

Potential Disadvantages of Obtaining a Green Card Through Marriage

While often a faster route to permanent residency, some individuals express a preference for alternative pathways to a green card. A common reason cited is the desire to qualify based on their own individual achievements and qualifications.

Another concern voiced by clients is the potential strain a marriage-based green card application could place on their marital relationship.

Approval of a green card application within the first two years of marriage results in a conditional green card. This type of card has a validity period of only two years, differing from the standard ten-year green card.

Securing the removal of these conditions necessitates further action. At least 90 days prior to the conditional green card’s expiration, both spouses must jointly file Form I-751, the Petition to Remove Conditions on Residence, with USCIS.

This filing must demonstrate the ongoing legitimacy and good faith nature of the marriage. Given current processing delays at USCIS, submitting Form I-751 as early as permissible is highly recommended.

If a marriage-based green card is chosen, it’s crucial to marry and file the application well in advance of any existing visa, such as an L-1A, expiring. Consultation with an immigration attorney is also vital to ensure continued legal residency and work authorization.

It’s important to acknowledge that USCIS is currently experiencing significant backlogs across all case types, a situation exacerbated by the pandemic.

Furthermore, many U.S. embassies and consulates are operating with limited capacity, prioritizing only emergency visa and green card processing.

All my best,

Sophie

Do you have a question for Sophie? Submit it here; we maintain the right to edit submissions for clarity and length.

Please note that the information presented in “Dear Sophie” is intended for general knowledge and does not constitute legal counsel. For a complete understanding of the limitations of “Dear Sophie,” please review our comprehensive disclaimer.

You can reach Sophie directly through Alcorn Immigration Law.

Sophie also hosts the podcast, Immigration Law for Tech Startups, which is accessible on all popular podcast platforms. She is currently accepting applications from potential guests!