Written by attorney Neil Ian Fleischer

Marrying a Foreign National/Immigrant

Filing for a Spouse who Currently is Residing in the United States

To be a U.S. citizen marrying a citizen of another country (a foreign national) it can be a very exciting, yet complicated time when trying to bring that person to the United States. If the procedures are not followed correctly, you may be separated from your spouse for months, and possibly years. In general, it can take approximately six to twelve months for a foreign national to receive United States permanent residence (green card). This article will outline the procedure for a U.S. citizen filing for a green card for his or her spouse.

We will first begin with filing of a petition for a foreign national who is currently residing in the United States. Most importantly, this foreign national must have entered the country legally, with a valid visa (or visa exempt) and I-94 (little white entry card - or sometimes green entry card). If the foreign national has entered illegally, or without inspection, there is little that can be done without the foreign national leaving the country, and most likely being subject to the possible three or ten year bars to return to the United States.

If the foreign national entered legally, he or she will apply for a 'one step' adjustment of status. After marrying, the U.S. citizen spouse (Petitioner) will file Immigration Form I-130 along with the appropriate fee and accompanying documentation including evidence that will show that the couple has a bona fide marriage. This will be filed at the local office controlling the residence of the beneficiary. The United States Citizenship & Immigration Services (USCIS) prefers to see that the Petitioner and the Beneficiary (foreign national) show a co-mingling of assets, for example, a joint lease, mortgage, bank accounts, insurance policies, joint telephone or cable bills, etc. This evidence is not required, yet is highly preferred. If none of this evidence is attainable, the Petitioner can show photos of the couple together, as well as congratulation cards, affidavits from friends and family, and other secondary evidence. The more information you can provide Immigration in the beginning of the process, the easier the process will be.

The second part of this one-step adjustment of status is the foreign national's application for permanent residence, which is filed on Form I-485. This part is filed simultaneously with the I-130. Before filing, the foreign national must complete a medical exam from a USCIS approved doctor, and also show that he or she entered the United States legally with inspection.

An Affidavit of Support on Form I-864 must be included in the application for adjustment of status. The Affidavit of Support is used to show that the foreign national will not become a 'public charge'. Therefore, the U.S. citizen must show that he or she can 'financially support his or her spouse'. In order to show 'financial stability', the Petitioner must provide USCIS with his or her tax records (IRS Form 1040) for the past three years, along with IRS forms, W-2 for all three years, and a letter from his or her employer showing present employment. If the U.S. citizen Petitioner does not meet the financial standards set by the U.S. government, a 'co-sponsor' must be found. The Affidavit of Support is a binding contract between the U.S. government and the U.S. citizen that states if the foreign national is ever to receive public benefits from the U.S. government, the U.S. citizen will agree to reimburse the government for these benefits. The contract is binding for ten years, or until the foreign national becomes a U.S. citizen.

One advantage of this 'one step' filing is that the foreign national may also apply for an EAD (employment authorization document) on Form I-765. This will allow the foreign national to work, pending the adjudication of the I-485. Additionally, in some circumstances, the foreign national may also apply for an advance parole travel document on Form I-131. This will allow the foreign national to travel in and out of the country pending adjudication of their case. It must be noted that some foreign nationals who have overstayed their visa may not be eligible for advance parole, and if they leave the country, their application may be deemed abandoned, and they may be subject to the three or ten year bar.

Once all the forms, fees, and evidence are ready to file, the U.S. citizen Petitioner and Beneficiary can file at the National Benefits Center which is located in Missouri. It is important to note that these documents must be sent to a "lock box" which is located in Chicago, Illinois. The address is:

USCIS PO Box 805887 Chicago, Illinois 60680-4120

Once the forms are filed at the "lock box" , the local USCIS will forward the application to the National Benefits Center in Missouri (USCIS is preparing to have direct filing in the future). The NBC will then issue receipts to the Petitioner and the Beneficiary. The receipts will instruct the foreign national beneficiary to contact USCIS for fingerprinting and biometrics. Usually, within 90 days of filing, work authorization will be issued, and the foreign national is now able to work. If the foreign national does not receive his authorization within those 90 days, he or she may then go in to a local USCIS office to receive an EAD card.

Then the wait begins. Upon filing, it can take at least 6 months to be called in to Immigration for a 'marriage' interview. At this interview, the U.S. citizen petitioner and foreign national beneficiary must appear at their local USCIS office to meet with an Immigration examiner. This meeting will be conducted under oath, and sometimes it will be video recorded.

The Immigration examiner tends to look for several things:

  • To confirm the information on the forms or make changes, for example, change of address or phone number.
  • That the foreign national entered the United States legally.
  • That the foreign national is not a criminal or terrorist.
  • That there is a bona fide marriage.
  • That the U.S. citizen Petitioner can 'financially support' the foreign national.

The Immigration examiner will carefully examine the validity of the marriage. Examiners tend to ask questions that 'most married couples know about one another'. For example, they will ask, "How and when did you meet? Have you met each other's family? Who proposed to whom?" Sometimes the questions are more detailed.

The examiner can also separate the couple in different rooms, and question them separately. The examiner will ask questions like, "How many bathrooms are in your home or apartment? What color is the carpet or shower curtain? Is there a television in the bedroom?" Also, they may ask "Who woke up first this morning? Did you eat breakfast together? If so, what did you eat? What did you do last night?"

The examiners are not looking for 'golden answers', they are looking for the truth and consistency. It is O.K. if one spouse was working or out with friends the night before. They are just looking to see if there is a bona fide marriage and the couple intends to spend a life together. It is a crime to marry a foreign national in order to help him procure an Immigration benefit like a 'green card'. If the U.S. citizen spouse was paid to marry the foreign national, he or she can be fined or go to jail. The foreign national will be detained and removed from the United States.

At the end of the interview, if all security checks and evidence is present, the Immigration examiner will render a decision on the case. If approved, the foreign national will receive an I-551 stamp in his or her passport. This is valid proof of permanent residence. The foreign national can work and travel with the stamp, and eventually the actual 'green card' will come in the mail.

Sometimes the Immigration examiner will request 'additional evidence'. If there is something missing from the file, for example a birth certificate, translation, or divorce certificate, the examiner will request that these documents be provided. Additionally, the examiner may ask for more proof of a bona fide marriage. That is why it is so important to try to provide Immigration with this evidence before the interview. There are countless scenarios in which Immigration may request additional evidence. Therefore, it is extremely important to bring everything relevant and 'the kitchen sink' to the interview.

It must be noted, if the U.S. citizen and the foreign national have been married less than two years, residence will be 'conditional'. The conditional status is like permanent residence in all respects and benefits except it is subject to termination within two years. Termination usually comes as a result of divorce. Additionally, the permanent residence status could be revoked if the couple fails to apply to remove the condition by using Form I-751 during the 90 days prior to the two year anniversary of the foreign national obtaining conditional status. If the couple is divorced during this two year period, the foreign national will have the burden of showing that when he or she entered the marriage, it was in good faith. If the foreign national is able to do so, he or she will receive permanent residence.

The process outlined above is a brief explanation of the marriage petition process. There could be many bumps along the way, but in the end you and your family can live the American Dream.

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