Considering Marriage if one person is a U.S. citizen
It is important for a couple to obtain legal advice if one or both of them are contemplating the possibility of marriage.
Coming to the USA to visit or marriage?
If a couple is engaged and definitely intend getting married in the USA, then it is not possible to enter the country on a Tourist Visa or a Visa Waiver. It is necessary to obtain Fiancé Visa and this can be lengthy procedure.
If, however, the couple has not agreed to get married and one of the parties is merely visiting the United States with a clear intention to return home, but the couple decides to get married during the visit, then it is possible to file for a Green Card in the USA.
This all hinges on the intention of the parties, especially the foreign visitor when entering the United States.
Presumptions in Marriages to U.S. Citizens
There is a presumption that if the marriage to a U.S. citizen occurs within one month of the foreign citizen arriving that there was a fraudulent entry, because the parties are presumed to have intended to get married. Instead of obtaining a fiancé visa, the foreign visitor stated that he/she was coming to visit the United States, but had no intention of leaving.
What is a presumption?
The best known legal presumption is that a person is innocent, unless proven guilty. So in the case of marriage within 30 days of arriving, the parties may be able to prove that the intention when entering the USA was for a visit and not to get married to the U.S. citizen.
If the marriage to the U.S. citizen took place between the 30-60 day period after the non-US citizen arrived, then there is no presumption that the entry was fraudulent. This does not stop the Immigration Service from proving from other evidence that there was an intention to get married to the U.S. citizen, if the person arrived on a tourist visa.
If the marriage to a U.S. citizen is consecrated 60 or more days after the non-US citizen spouse arrived, there is a presumption in law that says that the entry was not fraudulent.
If it is clear that the parties definitely intend getting married in the USA and the one partner is outside the country, then it is appropriate to apply for a Fiancé Visa so that he/she may enter the United States for that purpose.
Someone arriving on a Fiancé Visa must get married within 90 days to the U.S. citizen who petitioned for the Fiancé Visa.
Petitions for Green Cards through Marriage to a U.S. Citizen
Someone who marries a USA citizen is regarded as an “immediate relative.” Immediate relatives do not face the immigration backlogs of the quota system. They are immediately allowed to petition for permanent residence to get their Green Cards.
If both parties are in the United States at the time of the marriage, then the petition for permanent residence will be accompanied by an Adjustment of Status, Work Authorization, and very often Advanced Parole.
Why are there four applications?
A Petition for permanent residence (Green Card) is when the U.S. citizen proves that he/she is a U.S. citizen and has married a foreigner. If it is a genuine marriage, the petition will be approved. This means that the foreign partner is eligible for permanent residence, but not necessarily entitled to permanent residence.
It is for this reason that the second application is filed, which is known as an Adjustment of Status. The adjustment of status application is where the non U.S. spouse shows that he/she is not only eligible to receive a Green Card, but is in fact entitled to receive a Green Card because he/she:
- Has not committed a serious crime;
- Is not a terrorist or anarchist;
- Is not a Communist or Nazi;
- Is not suffering from any dangerous disease;
There are a number of other reasons why a person may not be entitled to adjust their status.
Support for non U.S. Citizen Spouse
It is necessary for the U.S. spouse to sponsor the intending immigrant. The U.S. citizen sponsor proves to the Immigration Service that the sponsor is earning more than 125% of the poverty level and therefore will be able to provide for the needs of the intending immigrant.
If the U.S. spouse’s income does not qualify, it is possible to use a co-sponsor.
Work Authorization for non U.S. Citizen Spouse
In some cities there is a significant delay between the time of filing the petition for permanent residence and the adjustment of status until the time the parties are actually called in for their interview to determine if theirs is a genuine marriage.
Accordingly, the non U.S. citizen spouse may need to work. It is for this reason that an Application for Work Authorization is made so that the non-U.S. spouse may work until his/her case is decided. Obviously, if permanent residence is granted, this spouse automatically has the right to work in the country. If the application is denied, the work authorization immediately terminates.
It should be born in mind that there is approximately a 90 day delay between the filing for the interim work authorization and obtaining the permission.
Advanced Parole for non U.S. Citizen Spouse
Once a couple files for permanent residence and adjustment of status in the United States, the non US citizen spouse may not leave the country. If he/she does leave, that person will not be allowed to return as a tourist, because tourists have every intention of only being in the country temporarily and then returning to their home countries.
In order to accommodate international travel for the non-U.S. citizen partner, while the case is pending, a request is made to the Immigration Service to allow that spouse to leave the country and to continue the permanent residence process. The document which is known as Advance Parole is issued for re-entering the United States.
Before you apply for Advanced Parole it is essential that you check with an attorney if you are entitled to use the advance parole document. Remember that people, who have overstayed their permission to be in the United States by more than 180 days will not be allowed to return to the country for 3 years, even if they did receive an advance parole approval.
The Immigration Service issues these Advanced Parole documents and does not consider at the time of the application whether the person is in fact entitled to use it. Leaving the country in the middle of an adjustment application for a Green Card on Advanced Parole does not guarantee that you will be entitled to continue your application for permanent residence. You may in fact be barred from living in the U.S.A. for 3 years or 10 years, if you overstayed the time allotted to you by the Immigration Service, when you entered the country.
A fiancé visa is applied for if the parties intend getting married in the United States.
A petition for a fiancé visa is filed by the future U.S. citizen spouse in which the petitioner proves that the intended marriage is a genuine intention and not merely a sham to get someone a green card. This is usually proved by providing proof of the relationship with documents such as letters, emails, telephone accounts, photographs, trips to the foreign country, and other such evidence.
If the petition is approved the Immigration Service will send the approval to another department, which in turn will require the petitioner to provide an Affidavit of Support.
After the support issue is satisfied, the fiancé visa approval is sent to the U.S. Embassy or Consulate in the country where the fiancé resides.
Practical Pointer for Marriages to a U.S. Citizen Spouse
It is only possible for an attorney to provide a guestimate on the time that it will take from filing the petition for the fiancé visa, until the fiancé visa will be approved and the fiancé will arrive in the United States. It is strongly recommended that a definite date for the wedding is not set until the fiancé actually gets the visa.
Marriage to a Non-U.S. Citizen in a Foreign Country
There are basically two options in this situation:
- Consulate processing in the foreign country;
- Applying for a K-3 visa.
In this case the U.S. citizen will file a petition for his/her spouse the petition with the Immigration Service in the jurisdiction, where the U.S. citizen resides. Most of the time the petition will be in the United States, but on occasion if the parties are living aboard it is possible to file the petition through the Immigration Service offices abroad.
After the petition is approved, it must be determined whether the U.S. citizen can financially support the non-U.S. citizen spouse. If the U.S. citizen does not qualify on his/her own income, it is possible to use a co-sponsor.
Eventually an appointment is scheduled for an interview, after the non-U.S. citizen spouse has had a medical examination and has collected all the necessary documents for the interview.
The time frame between the first petition for permanent resident and the final interview at the foreign consulate can literally take years in certain embassies/consulates in the world.
The Solution – K-3 Visa (Like a Fiancé Visa)
The Immigration Service and State Department recognize that there was a long delay between the initial petition being filed at the Immigration Service and the final interview at a consulate/embassy to obtain the permanent resident entry visa.
Accordingly, the K-3 visa was created. This visa allows the U.S. citizen to file a petition for permanent residence.
Once a receipt for the petition is received from the Immigration Service (usually about 30 days), the U.S. citizen may file for a K-3 visa.
The K-3 visa is similar to a fiancé visa, which will allow the foreign citizen spouse to come to the United States to continue the final processing for the Green Card. In other words, the Adjustment of Status, Work Authorization, and Advance Parole (See above) is dealt with in the United States.
The benefit of using the K-3 visa is that in the overwhelming number of cases, the foreign spouse is able to enter the United States a lot early on the K-3 visa than if he/she waited for the complete processing of the Green Card visa in the foreign country.
In1986, the law relating to obtaining green cards througha marriage was changed. Previously the U.S. citizenwould petition for the alien spouse and provide evidencethat the spouse was eligible to obtain permanent residence.Permanent residence was granted at the initial interview.
The law was changed and now results in conditional resident status being granted to the foreign spouse for a period of 2 years from the time of the interview, unless the marriage was more than 2 years old at the time of granting U.S. residency.
A joint petition is then filed by the spouse within this 90 day period prior to the termination of the second anniversary to prove that the marriage was entered into in good-faith, and to remove the conditional basis of the permanent residence..
TERMINATION OF CONDITIONAL RESIDENCE
The Immigration Service can terminate the permanent residence if:
- The marriage is judicially annulled or terminated other than due to the death of the spouse;
- The marriage was entered into because a feewas paid for the alien's entry (except the fee toan attorney); or
- The parties fail to file a joint petitionwithin a 90 day period before the second anniversaryof conditional residency.
It is possible to obtain a waiver to the filing of a joint petition if:
- It is possible to show that extreme hardship will result if the alien is deported and the extreme hardship arose during the conditional residence period; or
- The qualified marriage was entered into in good faith by the alien and has been terminated; or
- The marriage was entered into in good faith and the spouse was battered by or subjected to extreme cruelty perpetrated by his/her spouse and the beneficiary was not at fault in failing the petitioning requirements.
A widow or widower of a U.S. citizenmay attain permanent residence through the marriageif it lasted at least 2 years, the petition is submittedwithin 2 years of the spouse's death, the widow(er)is not remarried and was not legally separated fromthe deceased at the time of his/her death.
BATTERED SPOUSES OR CHILDREN
The law was amended to enable the spouse or child of a U.S. citizen to petition for permanent residence if they were subjected to severe cruelty or battery. There are special requirements for this particular category, including that the abused spouse/child must prove that he/she is residing in the U.S. and previously resided with the U.S. citizen spouse; was battered (or subject to severe cruelty) during such residence with the U.S. citizen; the marriage was a genuine, good-faith marriage and the spouse/child would have been eligible for permanent residence. It is necessary to prove good moral character, and it must be shown that deportation to the foreign country would result in extreme hardship to the petitioner.
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