Marriage is a very important concept and establishment in the United States, and as such, Congress has determined that a foreign national who marries a United States citizen has the immediate ability to apply for permanent residence under a first category preference. It’s good to know that permanent residents (“green card” holders) can also file a marriage petition; however, the waiting time for the priority date is long and therefore does not give the beneficiary the immediate ability to obtain a green card.
The first consideration in marriage cases is that the marriage must be bona fide (literally “good faith”) or a marriage that is not intended solely to obtain immigration benefits. A bona fide marriage is based on the intention of the bride and groom to establish a life together at the time they were married. The United States Citizenship and Immigration Services (USCIS), formerly the INS (“Immigration”), has several criteria for determining whether a marriage was entered into in good faith. These include, but are not limited to, asset pooling, joint leases, joint financial responsibilities, and images. It is generally accepted that a couple knows each other’s most intimate affairs. That is why it is very important to document your marriage to present evidence of your bona fide relationship. It is imperative that a person not enter into a fraudulent marriage. A fraudulent marriage will penalize both the petitioner (US citizen spouse) and the beneficiary (the person getting the benefits) and could even result in criminal charges, including prison time. Although Immigration does not recognize fraudulent marriages, it will recognize an arranged marriage as long as it is performed in good faith.
To file a marriage petition, one must have a valid marriage. A valid marriage is one that is recognized in the State in which it takes place. For example, if Ram marries Anita in Nevada and moves to California, Immigration will recognize this marriage. However, if Ram and Anita are first cousins, Nevada will not recognize the marriage and therefore Immigration will not recognize this marriage either. This is very important because you may not know this fact until you file your petitions with Immigration. Also, if the marriage takes place, for example, in Fiji, Immigration will recognize the marriage as long as the marriage is recognized in Fiji. Please note that a marriage by proxy will not be recognized. A marriage by proxy is one in which the bride and groom did not meet on the wedding day. The exception to this rule is if the marriage is consummated after the marriage by proxy.
Once married, the paperwork can be processed within the United States, if the beneficiary (the one obtaining the green card) is in the United States, or they can be processed abroad through the United States consulates. In the case of processing cases abroad, you can opt for a K3 visa to reduce waiting time. Also, if you are not married yet, you can also bring your fiancé with a K1 visa. Such visas are only available to US citizen petitioners. On the other hand, for the marriage case to be processed in the United States (a process called adjustment of status), the beneficiary must have legally entered the United States even for one day. This means that the person should have entered the US with a valid visa. Those who entered across the border are out of luck unless they benefit from a provision under INA 245(i). This provision will be required if any type of petition was filed in favor of the beneficiary on or before April 30, 2001. There are many requirements to prove that you benefit from this provision of the law. You need to speak with an experienced attorney about her particular case. Also, if you have overstayed your visa, you definitely need to speak with an immigration attorney before pursuing any type of case.
During the adjustment of status process, you should not leave the United States unless you file and obtain an approved speech/reentry permit. You should be aware that a parole or reentry permit is not a guarantee of entry into the United States. It only allows you to board a plane and arrive at the US port of entry, where an immigration officer will determine whether or not to allow you to enter the US. If you have overstayed 180 days on your visa before applying for a green card, you should definitely not leave the United States. In fact, you will be subject to a 3-year ban. This ban will prevent the person from not only returning to the US but also from obtaining permanent residence. At that point, only a waiver can help you. It is important to know that exemptions are not easy to obtain. If he stayed more than 365 days before applying, he again shouldn’t leave because this time he will be subject to a 10-year ban. The same rule as the 3 year ban will apply, except that the ban is for 10 years now and the exemption is much more difficult to obtain.
Once you file your marriage petition, you will be called for fingerprinting and an interview within 3-8 months, provided the documents are properly presented. She is supposed to attend this interview with her spouse and proof that her marriage is bona fide (good faith). At this point, it is highly recommended to have an attorney present with you during such interviews. In fact, a licensed attorney will be allowed to sit with you at the interview. If the adjudicating officer is satisfied with the interview and the security check is completed; he or she will tell you that he or she will issue a response soon. You may receive a response the next week after your case is approved and a letter welcoming you to the US as a permanent resident.
On the other hand, if Immigration obtains evidence or admits that the case is fraudulent, you may be arrested on the spot. At this point, we strongly recommend that you remain silent until your attorney is present. In another case scenario, if the officer is not satisfied, you may be called in for another interview or your case may be denied. Technically, if they refuse, they will give you a month before they refer the case to the Immigration Judge. This will allow your attorney to possibly file a motion to reopen the case. If this fails, the case will be argued in immigration court. The immigration judge will review the case de novo (again) and make a determination. This means that he has to prove his case or the government has to prove that his marriage was not in good faith. Once again, it is highly recommended that you retain an experienced attorney to advance these cases.
If the case is approved, the beneficiary will be granted a conditional residence if the marriage was less than two years old at the time of issuance of the green card. You must verify if you have a conditional residence. Generally, a conditional green card will have an expiration date of 2 years from the date of issue. You will need to remove that conditional residence status beginning 90 days from the second anniversary of the green card issuance by filing a Form I-751. It is imperative to file the removal, otherwise your status will be cancelled. Generally, if you are still married to your US citizen spouse, you will file a joint petition to remove those conditions. If you can prove that your marriage was bona fide, you will be granted a 10-year permanent resident card approximately 6 months after filing Form I-751. If Immigration has reason to suspect that a crime has been committed, they will start an investigation and then may call you and your spouse for a conditional residency removal interview. If they are satisfied, they will grant you unconditional permanent residence. Otherwise, they will refer the case to an immigration judge.
The question is what happens if there is a separation or divorce before or during the 90 days before the expiration anniversary of the conditional green card. The following are some potential scenarios.
Divorce finalized before filing conditional residence removal.
In this case, it is necessary to file the removal of the conditional residence exemption (Form I-751) even if the marriage has not reached two years. You will be asked to show that your marriage was entered into in good faith and that the marriage did not end because of your fault. Generally, the process will follow the same path as when you file the case with his wife;
The two year anniversary of the conditional green card has come to an end and the divorce is not final. In this case, you will need to finalize the divorce as soon as possible in order to file the Form I-751 waiver; Y
You were able to file your joint petition for conditional residency removal and during this time your marriage is in trouble and you separate and intend to divorce your spouse. You must inform USCIS and wait for the final divorce decree and file a Form I-751 again.
There are many other permutations of situations related to removal of conditional residency, namely abusive US citizen spouses or hardship situations. You should talk to your lawyer about your particular case.
There are other provisions under the law to protect beneficiaries, namely in the case of abuse by the spouses of US citizens. In case one is abused by her citizen spouse, he will be eligible to apply for VAWA (Violence Against Women Act) protection. Please note that VAWA can also be used in favor of the man. There are also situations where the US citizen spouse dies before the case is approved.
Because VAWA and other exceptional cases are very rare cases. We will try to cover them in our next article.
And remember, it is highly recommended to speak with an experienced licensed attorney before filing any type of immigration case.
The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any subject. No recipient of the content of this article, clients or others, should act or refrain from acting on the basis of any content contained in the article without seeking appropriate legal or professional advice on the particular facts and circumstances in question from an attorney licensed in the state of the recipient. Shah Peerally is the manager of the Law Offices of Shah Peerally located in Fremont CA. The law office focuses on Immigration Law.
http://www.peerallylaw.com Phone: 510 742 5887 Email: [email protected]