Immigration: Love, Marriage, and the Green Card by Shah Pearly, Esq.
Marriage is a very important concept and institution in the United States, and as such, Congress has determined that a foreign national who marries a United States citizen spouse has an immediate opportunity to apply for permanent residence under a first category preference. It is good to know that permanent residents (green card holders) can also apply for marriage, but the waiting time for the priority date is long and therefore does not provide an immediate opportunity for the beneficiary to receive a green card.
The first consideration in marriage cases is that the marriage must be bona fide (literally “in good faith”) or a marriage that is not for the sole purpose of obtaining immigration benefits. A bona fide marriage is based on the intention of the bride and groom to settle down together at the time they were married. The United States Citizenship and Immigration Services (USCIS), formerly the INS (“Immigration”), has different criteria for determining whether a marriage is entered into in good faith. These include but are not limited to commingling of assets, joint tenancies, joint financial responsibilities and photographs. 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 provide evidence of your bona fide relationship. It is obligatory that one should not marry fraudulently. Fraudulent marriage will penalize both the petitioner (US citizen spouse) and the beneficiary (the person receiving the benefits) and may even result in criminal charges, including jail time. Although immigration does not recognize fraudulent marriages, they will recognize an arranged marriage as long as it was entered into in good faith.
To apply for marriage, one must have a valid marriage. A valid marriage is one that is recognized in the state in which it was entered into. For example, if Ram marries Anita in Nevada and moves to California, that marriage will be recognized by immigration. However, if Ram and Anita are first cousins, Nevada will not recognize the marriage and therefore the immigration office will not recognize that marriage either. This is very important because you may not know this fact until you submit your petition to the immigration office. Also, if the marriage took place in, for example, Fiji, the immigration office will recognize the marriage as long as the marriage is recognized in Fiji. Note that a proxy marriage will not be recognized. A marriage by proxy is one where the bride and groom have not met on the day of the wedding. An exception to this rule is if the marriage was consummated after the proxy marriage.
After you get married, the documents can be processed in the United States if the beneficiary (the one receiving the green card) is in the United States, or they can be processed abroad through US consulates. In case of processing cases abroad, you can choose a K3 visa to reduce the waiting time. Also, if not yet married, one can bring their fiancé on a K1 visa. Such visas are available only to US citizen petitioners. On the other hand, in order for the marriage case to be processed in the United States (a process called adjustment of status), the beneficiary must have entered the United States legally, even if only for one day. This means that the person must have entered the US with a valid visa. Those who entered by crossing the border are out of luck unless they take advantage of a provision under INA 245(i). This provision will require if any petition was filed in favor of the beneficiary on or before April 30, 2001. There are many requirements to prove that you are availing of this provision of the law. You should speak to an experienced attorney about your particular case. Also, if you have overstayed your visa, you should definitely talk to an immigration attorney before proceeding with any case.
During the adjustment of status process, you must not leave the United States unless you apply for and receive an approved reentry permit/parole. You should know that a parole or re-entry 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 decide whether or not to admit you to the US. If you spent more than 180 days on your visa before applying for a green card, you should definitely not leave the United States. You will indeed be subject to a 3 year ban. This bar will prevent the person not only from returning to the US, but also from obtaining permanent residency. At this point, only denial can help you. It is important to know that rejections are not easily obtained. If you spent more than 365 days before applying, you should not leave again because this time you will be subject to the 10 year bar. The same rule as the 3-year bar will apply, except that the bar is now for 10 years and the exemption is much more difficult to obtain.
After applying for marriage, you will be called for fingerprinting and an interview within 3 to 8 months, provided the documents are properly submitted. You must attend this interview with your spouse and evidence that your marriage is in good faith (good faith). At this stage, it is highly recommended that you have an attorney with you during such interviews. A truly licensed attorney will be allowed to sit with you at the interview. If the Adjudicating Officer is satisfied with the interview and the security clearance is complete; he or she will tell you that he or she will give an answer soon. You may receive a response next week that your case has been approved and a letter welcoming you to the US as a permanent resident.
On the other hand, if the immigration office receives proof or an admission that the case is fraudulent, you may be arrested on the spot. At this stage it is strongly recommended that you remain silent until your lawyer is present. In another scenario, if the officer is not satisfied, you may be called back for another interview or they may decline your case. Technically, if it’s denied, they’ll give you a month before taking the case to an immigration judge. This will allow your attorney to eventually file a motion to reopen the case. If that fails, then the case will be heard in immigration court. The immigration judge will review the case de novo (again) and make a decision. This means you have to prove your case or the government has to prove that your marriage was not in good faith. Again, it is highly recommended that you hire an experienced attorney to move forward in such cases.
If the case is approved, the beneficiary will be granted conditional residency if the marriage was less than two years old at the time the green card was issued. You need to check if you have conditional residency. Typically, a conditional green card will be valid for 2 years from the date of issue. You will need to remove this conditional resident status after 90 days of the second anniversary of your green card issuance by filing Form I-751. It is imperative that you submit a removal request or your status will be terminated. Typically, if you are still married to your U.S. citizen spouse, you will file a joint petition to remove these conditions. If you can prove that your marriage was bona fide, you will be given a 10-year permanent resident card approximately 6 months after filing Form I-751. If immigration has reason to suspect foul play, they will begin an investigation and then may even call you and your spouse for a removal parole interview. If they are satisfied, they will grant you unconditional permanent residence. If not, 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 anniversary of the expiration of the conditional green card. The following are a few potential scenarios.
The divorce was finalized before the application for removal of parole was filed.
In this case, one must file an Application for Removal of Denial of Conditional Residence (Form I-751), even if the marriage has not completed two years. You will need to prove that your marriage was entered into in good faith and that the marriage was not terminated through your fault. The process generally follows the same path as when you file with your spouse;
Two years of the conditional green card have expired and the divorce has not been finalized. In this case, you will need to finalize the divorce as soon as possible so that you can file a Form I-751 waiver; and
You were able to file your joint petition to remove parole and during this time your marriage is facing problems and you are separating and intending to divorce your spouse. You must inform USCIS and wait for the final divorce decree and resubmit Form I-751.
There are numerous other permutations of situations regarding removal of parole, namely abusive US citizen spouses or hardship situations. You should talk to your attorney about your specific case.
There are other provisions in the law to protect beneficiaries, namely in the case of abuse by US citizen spouses. In the event that a person is abused by their citizen spouse, they will be eligible to file for VAWA (Violence Against Women Act) protection. Note that VAWA can also be used to benefit the person. There are also situations where the US citizen spouse dies before the case is approved.
Because VAWA and other exceptional cases are very unique cases. We will try to look at them in our next article.
And remember, it is highly recommended that you speak with an experienced licensed attorney before filing any immigration case.
The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any matter. No recipient of content from this article, clients or otherwise, should act or refrain from acting based on any content included in the article without having sought appropriate legal or other professional advice regarding the particular facts and circumstances on the matter by an attorney licensed in the recipient’s state. Shah Peerally is the principal of the Law Offices of Shah Peerally located in Fremont CA. The law firm focuses on immigration law.
http://www.peerallylaw.com Phone: 510 742 5887 Email: [email protected]
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