Permanent Residency through marriage

Each year, over 400,000 citizens of the United States marry foreign-born persons and petition for them to obtain permanent residence in the U.S. Spouses of U.S. citizens are considered “immediate relatives” under the immigration laws, and are exempt from all numerical quota limitations. In other words, marriage to a U.S. citizen is the fast lane to a green card.

Alternately, marriage to a permanent resident is very problematical and often results in the recently-married spouses living apart for many years. A legislative solution to this problem is required.

Battered spouses and children of U.S. citizens and lawful permanent residents are entitled to special benefits under the law.

It is also possible for a U.S. citizen to obtain a temporary visa for a fiancé and get married once he or she arrives in the U.S.

IF THE MARRIAGE OCCURS IN THE U.S.

Procedurally, the process works like this: The U.S. citizen must submit a visa petition (form I-130) to the National Benefits Center to prove that the marriage is bona fide, that is, entered into for love rather than simply for the foreign-born spouse to obtain a green card. Attached to the visa petition are the following items: (1) Biographical forms (forms G-325A) for both the husband and the wife with photos attached; (2) Proof of the citizenship status of the petitioner. This can take the form of a U.S. Passport, a Certificate of Naturalization or Citizenship or a certified copy of the citizen’s birth certificate; (3) A certified copy of the marriage certificate; (4) Certified copies of the documents that terminated any previous marriages of the husband or wife, including final divorce decrees, and certificates of annulment or death.

Simultaneously, the foreign-born spouse, assuming he or she entered the U.S. lawfully, should submit an application for adjustment of status (form I-485) which is an application for a green card. Items which generally accompany form I-485 include green card photographs, an affidavit of support from the spouse, an application for employment authorization, an application for a travel permit (known in CIS jargon as “advanced parole”) – assuming the non-citizen spouse has not be present in the U.S. unlawfully for 180 days or more – and numerous other CIS forms.

And don’t forget the CIS filing fees. The current filing fees for form I-130 (visa petition), I-485 (application for adjustment of status), I-765 (application for employment authorization document), I-131 (application for advance parole) and for fingerprinting.

The CIS will accept the applications, cash your check, and schedule an interview somewhere between three months and 12 months. If the wait for the interview exceeds 90 days, chances are that the work card and the travel permit will be issued in a matter of weeks or months.

The CIS provides advice to U.S. citizens and permanent residents who wish to obtain permanent residence in the U.S. for their foreign-born spouse through the Infopass system.

IF THE MARRIAGE OCCURS OUTSIDE THE U.S.

The process is similar except that traditionally the foreign-born spouse had to remain in his or her country until he or she obtained a green card. This changed on August 14, 2001 when temporary K-3 and K-4 visas became available and allowed the spouse and children of U.S. citizens to obtain temporary visas to come to the U.S. and process the paperwork in the U.S.

The U.S. State Department offers advice on its web page to citizens who marry foreign-born persons abroad and wish to obtain immigrant (permanent) visas for them.

The process begins when the citizen spouse submits a visa petition to either the CIS office which has jurisdiction over his residence or directly to the U.S. Embassy or Consulate in the country where the foreign-born spouse resides. The citizen spouse must attach the same items with the visa petition which are listed above including the filing fee.

Once the visa petition is approved, the foreign-born spouse will receive a packet from the National Visa Center (NVC) located in Portsmouth, New Hampshire. The packet informs the foreign-born spouse of the various documents which must be presented at the immigrant visa interview abroad (e.g., passport, police clearances, photos, birth certificates, marriage certificate, proof of termination of prior marriages, military certificates, etc.). The packet includes certain documents requesting biographic data which must be completed, signed and forwarded to the U.S. Embassy or Consulate abroad.

Usually, the foreign-born spouse is interviewed and granted an immigrant visa within three to six months. The State Department charges a fee of $492 for an immigrant visa.

Sometimes, in order to avoid a lengthy separation, the spouses return to the U.S. after the marriage and proceed to file the necessary applications once they are both in the U.S. Usually, CIS takes a dim view of this practice. It is not uncommon for the CIS to stop the foreign-born spouse at the border and exclude him or her from the U.S. as an intending immigrant. However, if the foreign-born spouse is able to enter the U.S., CIS will not deny his or her application for a green card solely because he or she entered the U.S. on a temporary visa when their real intent was to remain permanently in the U.S.

REMOVING CONDITIONAL RESIDENCE

If the marriage is less than two years old when the foreign-born spouse becomes a permanent resident, the green card will expire after a two-year period. Both spouses must submit a joint petition (form I-751) to remove the condition within the 90-day period immediately preceding the end of the two year period.

If the marriage has terminated by reason of divorce, death of the citizen spouse or spousal abuse, the foreign-born spouse may apply for a waiver of the joint petition requirement.

On April 10, 2003, the CIS issued a policy memorandum which states that a person who has obtained permanent residence based upon a marriage to a U.S. citizen can not submit an application for a waiver of the joint petition requirement based on the “good faith” marriage exception to the joint petition requirement until the person has obtained a final dissolution of the marriage.  However, if the conditional resident spouse files the I-751 petition jointly and then while the I-751 petition is pending the marriage doesn’t work out and the couple get divorces, USCIS will convert the I-751 to a waiver of the joint filing requirement.