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US Immigration by Marriage

Posted by attorney Luis Guerra

Under American immigration law, a U.S. citizen or a legal resident can file an immigration petition for a husband or wife to become a legal resident (to get a green card). Stated the other way, your husband or wife can file an immigration petition for you if your husband or wife is either an American citizen or a legal resident (has a green card).

The marriage immigration process includes several steps and is designed to detect fraudulent marriages, that is, marriages entered into only to obtain a green card.

If the immigration petition is filed by a U.S. citizen, the alien spouse has an immediate visa number available as soon as the petition is approved. This means that the alien spouse does not need to wait to enter the USA or to adjust his or her status to a legal resident. (See below for alien spouses who entered the U.S. illegally.)

If the immigration petition is filed by a U.S. legal resident (person with a green card), the alien spouse needs to wait for a visa number after the petition is approved but will be placed into the second preference. This means that the alien spouse will need to wait to enter the USA or to adjust his or her status to a legal resident but will be ahead of most other immigrants waiting for visa numbers. Information regarding visa availability can be found at the U.S. State Department website.

If a couple is not yet married and the alien is abroad, a U.S. citizen may file a fiancee petition. The alien should not enter the U.S. on a tourist or other type of visa and then marry because the immigration service may consider the visa to have been fraudulently obtained if the real purpose for coming to the U.S. was to be married. This situation could result in a marriage immigration petition being denied even though it is a true marriage.

Once the immigration petition is approved and an immigrant visa number becomes available, the alien spouse will be given an appointment at the U.S. consulate in his or her country for an interview. It is very important not to miss this appointment. If the alien spouse is in the U.S. and entered legally, he or she may stay in the U.S. and file an application to adjust his or her status to a permanent resident along with an application for a work permit. Spouses of U.S. citizens can file the petition and the application to adjust status at the same time. If the spouse of a U.S. citizen is abroad, the spouse can apply for a nonimmigrant K-3 visa to enter the U.S. while the visa petition is pending. After entering, the spouse can file an application for a work permit.

If the alien spouse entered the U.S. illegally, then he or she generally cannot adjust status to a legal resident (cannot get a green card), unless he or she had a valid immigration petition pending before April 30, 2001, and, if the petition was filed after January 14, 1998, was living in the U.S. on December 21, 2001. Alien spouses who cannot meet these date requirements will have to leave the U.S. and apply for a waiver of the 10-year bar against entry to the U.S. for persons who remained in the U.S. illegally for more than 1 year (the bar is 3 years if the illegal stay was between six months and 1 year). These waivers are difficult to obtain.

Before the marriage immigration application for permanent residence is granted, an interview will be conducted at the consulate or the local immigration office. Documents should be presented to establish the marriage is bona fide (true). If the interviewing officer is satisfied that the marriage is bona fide, and the FBI background check has been received and is satisfactory, the alien spouse becomes a conditional permanent legal resident. (If the marriage is more than 2 years old at the time of the interview, the alien spouse becomes a permanent legal resident without the conditional status.) The officer usually places a stamp in the alien spouse's passport to indicate that legal residency has been granted. A green card, officially known as a Permanent Resident Card, will then be received in the mail. It is increasingly common for there to be a wait of several months for the FBI check to be received by the immigration service.

Immigration law requires that as part of the marriage immigration process, application to remove the conditional status must be filed during the 90 days before the 2-year anniversary of the granting of the conditional permanent legal residency. Failure to file during these 90 days time will cause the application to be considered abandoned by the immigration service and subject the alien spouse to deportation. Additional documents to prove the legitimacy of the marriage should accompany the application.

After the application to remove the conditional status is filed, one-year extensions of the permanent residency will be granted while the application is pending. The immigration service may conduct a second interview and/or require additional documentation before granting the application. Upon approval of the application, the alien spouse will receive a permanent resident card valid for 10 years.

Additional resources provided by the author

Immigration and Nationality Act

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