Marriage Based Immigration

Kyndra L. Mulder

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Immigration Attorney

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Marriage Based Immigration

U.S. immigration law relating to marriage as a path to obtaining legal permanent resident status has become more restrictive over time as a result of the increasing number of fraudulent marriages entered into solely to obtain a green card. The Department of Homeland Security USCIS has implemented many requirements that a married couple must meet in order to demonstrate that their marriage was entered into in good faith and is not a sham for the purposes of obtaining a green card.

U.S. Immigration Law provides a means for an immigrant to come to the United States as the spouse or fiance’ of an American citizen. The spouse may enter the USA as a Lawful Permanent Resident (LPR) by adjusting status at the USA Consulate in his or her home country or by adjusting status in the USA. The spouse will be interviewed at the consulate and will be required to demonstrate that his/her marriage is entered into in good faith and not for the purpose of obtaining a green card.

The fiancé will be interviewed at the US consulate in his/her home country and will be required to show that the engagement is entered into in good faith. The fiancé will enter the USA with a 90 day nonimmigrant visa. The immigrant and the USC that sponsored the immigrant have 90 days to get married or the fiancé must return to his or her country. The fiancé may then adjust status to a legal permanent resident inside the United States. The entry visa is known as a K-1 and requires multiple application forms, including a preliminary petition (I-129F). Both the marriage and fiancé avenue require proof of the relationship. Proof can be in the form of photographs, timeline, plane tickets, phone records and letters, joint assets….

Conditional Permanent Residency

Regardless of whether the green-card applicant enters the United States as a fiance’ or a spouse - and assuming the couple’s marriage is found to be in good faith and is not a sham - there will be a two year conditional permanent residency. The condition is that the couple remain married for two years. The only exception to this rule is if the couple has already been married for two years at the time of their interview. In order to keep the green card from expiring, the couple must jointly file the Petition to Remove the Conditions on Residence (I-751). This petition may be filed 21 months after the date the green card is granted. Those aliens who divorce before the conditional two years are up lose their status and are subject to deportation (there are exceptions in the case of widows/widowers, victims of domestic violence, and spouses of alcoholics, criminals, drug users, gamblers and abuse). Should an immigrant qualify for an exception he/she may file to remove the conditions of his/her own. The immigrant will receive a 10 year green card if the condition is successfully removed.

Spouse of a Legal Permanent Resident

The requirements for a Legal Permanent Residents (LPR or green-card holder) to bring a spouse or fiance’ to the USA are the same. However there are no visas immediately available to the fiance’ or spouse of a legal permanent resident. The intending immigrant is given a priority date only after an I-130 Alien Relative Petition is granted. The immigrant must wait until the priority date is current before filing for an immigrant visa. The U.S government limits the number of immigrant visas distributed each year (visas for spouses, fiancés and relatives of U.S. citizens are not included) it is possible that the wait time for a visa will be up to five years. Often the best route to take is for the LPR to obtain his/her citizenship and then file to sponsor the spouse or fiancé. The LPR may also file for the fiance’ or spouse as an LPR and notify the government upon becoming a USC. The government will change the category of the immigrant from one needing to wait for a priority date to an immediate category.

Citizenship

All marriage-based LPR’s (whether they entered the United States as a fiance’ or a spouse) are qualified to apply for Naturalization after (3) three or (5) five years of residency – three years if married at the time the application is submitted, at the interview and the ceremony. The LPR must wait five years if not married at the time of the application, interview and/or ceremony. Other factors other than the condition of the marriage may be relevant for the naturalization determination – example criminal convictions.

Additional Resources

For further information on family based immigration contact the Mulder Law Office at (904) 296-7702 or (386) 246-6888. The Mulder Law Office is located at 4110 Southpoint Boulevard in Jacksonville, Florida and 1 Florida Park Drive South, Suite 332, Palm Coast Florida.

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