The basic rule to remember is that if you marry before you become a lawful permanent resident ("immigrant", "green card holder"), your spouse is entitled to apply for LPR status using your preference classification and priority date. If you marry after you attain LPR status, your spouse must immigrate through the family based "2A" category. The difference is that in the first instance, your spouse may apply for LPR status immediately, while in the second, he or she must wait approximately five years. If your spouse must apply through the family based "2A" category, there is no provision in the law that will allow him or her to remain in the U.S. while waiting.
An applicant for a consular immigrant visa acquires LPR status when he or she enters the United States with an immigrant visa. The issuance date of the visa abroad does not count. It is the actual date of entry into the U.S. with the visa that matters.
There are a number of situations in which an applicant for a consular immigrant visa might marry before attaining lawful permanent resident status. Let's examine each of them and the remedies that are available in each instance:
1. Marriage after I-140 approval, but before filing for consular processing:
The fact that you did not include your spouse's name in your I-140 is not important. While it is always a good idea to do so if you can, failing to include the spouse's name does not in any way affect the spouse's ability to file for immigrant status later.
In this case, just include your spouse's name on the form DS-2001 as a dependant who will be applying with you. If you did not receive a second DS-230I form for your spouse, just make a copy of the form you did receive, complete it for your spouse, and include it in the package that you return. Your spouse will be scheduled for an interview with you.
2. Marriage after you have returned the documents to the consulate, but before the interview.
In this case, it is doubtful that the consulate would be able to schedule your spouse for an interview with you. You should attend the interview as scheduled. Bring a certified copy of your marriage certificate, as well as a fully completed form DS-230I for your spouse. Inform them that you just got married and ask them to schedule an interview for your spouse as quickly as possible. In the worst case, he or she will be scheduled for an interview approximately 60 days later. In this case, you may either wait for your spouse to be issued a visa, or just go ahead and enter the U.S. as an immigrant and wait here for your spouse to enter as an immigrant.
3. Marriage after the immigrant visa interview, but before returning to the U.S. to enter as an immigrant.
In this case, timing is very important. You must carefully document the fact that the marriage not only took place, but was registered before you entered the U.S. as an immigrant. If you have time, return to the consulate with your visa and a certified copy of your marriage certificate. Show them these documents and give them a fully completed form DS-230I for your spouse. They will begin processing and your spouse should be scheduled for an interview in about 60 days. If you cannot return to the consulate, send your spouse a fax copy of the I-551 temporary "green card" stamp that you receive upon entry as an immigrant. This will show the date that you became an immigrant. Your spouse should then visit the consulate and show them this fax, a certified copy of your marriage certificate, and forms DS-2001 and DS-230I. They will begin processing the case and the spouse should be interviewed within sixty days.
