By Shah Peerally
Getting a marriage-based Green Card involves many steps. Here is what you need to know about the marriage green card process. A foreign national who marries a U.S. Citizen spouse can immediately file for a permanent residence under a first category preference. Permanent residents “greencard” holders can also file a marriage petition.
The United States Citizenship and Immigration Services (USCIS) formerly the INS has various criteria for determining if a marriage was entered in good faith. These include, but are not limited to the following:
- joint financial responsibilities,
It is very important to document your marriage in order to present evidence of your bona fide relationship. Entering a fraudulent marriage for the sake of a Green Card could result in criminal charges including prison time.USCIS will recognize an arranged marriage as long as it is entered in good faith.
To file for a marriage petition, you must have a valid marriage. A valid marriage is is recognized in the State in which it takes place. For example, If first cousins Jet married in Nevada, that state will not recognize the marriage and Immigration will not recognize the marriage either. For example, immigration will recognize a marriage that took place in Mexico as long as the marriage is recognized as valid in Mexico. Immigration will not recognize a proxy marriage, in which the bride and groom did not meet on the wedding day. The exception is if the marriage was consummated after the proxy marriage.
Once married, the paperwork can be processed in US if the spouse who's getting the green card is in the United States. It can also be processed overseas through the US consulates. When processing a case overseas, you can opt for a K3 visa to reduce the waiting time. Also, if the marriage has not taken place yet, you can bring your fiance in on a K1 visa.
In order for the marriage case to be processed in the United States, The person should have entered the US on a valid visa. Those who entered by crossing the border are out of luck unless they benefit from a provision under INA 245(i). This provision will require if any kind of petition was filed in the beneficiary’s favor 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 to an experienced attorney about your particular case. Also if you have overstayed on your visa, you definitely need to speak to an immigration attorney before proceeding with any kind of case.
During the adjustment of status process, you should not leave the United States unless you file and get an approved reentry/parole permit. A parole or reentry permit is not a guarantee of entry in the United States. It only allows you to board a plane and arrive at the port of entry in the US where an immigration officer will determine whether to allow you inside the US or not. If you have overstayed for more than 180 days on your visa before applying for a greencard, you should definitely not leave the United States. Indeed you will be subject to a 3 year bar from getting back into the US and getting permanent residence. At that point only a waiver can help you and waivers are not easy to get. If you overstayed more than 365 days before applying, again you should not leave because this time you will be subject to a 10 years bar. The same rule as the 3 years bar will apply except the bar is for 10 years now and the waiver is a lot harder to get.
Once you file for your marriage petition, you will be called for fingerprint and for an interview within 3 to 8 months if they the papers have been filed properly. You are supposed to attend this interview with your spouse and prove that your marriage is bona fide (good faith). It is highly advisable to have an attorney present during such interviews. 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 finalized; he or she will tell you that he or she will issue an answer soon. You might get an answer the next week that your case is approved and a letter welcoming you to the US as permanent resident.
On the other hand, if the Immigration gets proof or admission that the case is fraudulent, you might be arrested on the spot. At this point you are highly advised to remain silent until your attorney is present.
If the officer is not satisfied, you might be called for another interview or they might deny your case. If it is denied they will give you one month before referring the case to the Immigration Judge. This will allow your attorney to file for a motion to reopen the case. If this fails, the case will be argued in immigration court. The immigration judge will review the case again and make a determination. This means you have to prove your case or the government has to prove that your marriage was not bona fide. Again, it is highly recommended to hire an experienced attorney to move forward in such cases.
If the case is approved, the beneficiary will be issued a conditional residence if at the time the green card is issued the marriage was less than two years. You should verify if you have a conditional residence. Usually a conditional residence green card will have an expiry date of 2 years. You will need to remove that conditional residence status as from 90 days from the second anniversary of the issue of the greencard by filing a Form I-751. It is imperative to file the removal otherwise your status will be terminated. Usually, if you are still married to you US citizen spouse, you will file a joint petition to remove such conditions. If you can prove your marriage was bona fide, you will get a permanent residence card for 10 years and about 6 months after filing the Form I-751. If the Immigration suspects foul play, they will launch an investigation and may even call you and your spouse for a removal of conditional residence 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 expiry of the conditional greencard. The following are few potential scenarios.
Divorce finalized before filing the removal of conditional residence.
In this case, you need to file the for the conditional residence waiver (Form I-751) to be removed even if the marriage has not reached two years. You have to prove that your marriage was entered in good faith and the marriage was not terminated through your fault. The process typically follows the same path as when you file the case jointly with your spouse; The two-year anniversary of the conditional green card has come to term and the divorce is not finalized. In this case, you need to get the divorce finalized as soon as possible so that you can file the Form I-751 waiver. If you filed your joint petition of removal of conditional residence, but you separate and intend to divorce your spouse, you need to inform the USCIS and wait for the final divorce decree and file a Form I-751 again.
There are numerous other situations pertaining to the removal of conditional residence, such as having an abusive spouse or hardship situations. You should speak to your attorney about your situation.
There are other provisions to protect beneficiaries in case of abuse by US citizen spouses. A person who is abused by his or her citizen spouse is eligible to file for Violence against Women Act (VAWA) protection.There are also situations in which the US citizen spouse dies before the case is approved.
The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. Shah Peerally is the managing for the Law Offices of Shah Peerally located in Fremont CA. The law office focuses on Immigration Law. http://www.peerallylaw.com Ph:510 742 5887 Email:shah@peerallylaw.com
Law Offices of Shah Peerally 4510 Peralta Blvd, Ste 23 Fremont CA 94536 Phone: (510) 742 5887 http://www.peerallylaw.com Email: shah@peerallylaw.com
Shah Peerally is the managing attorney for the Law Offices of Shah Peerally located in Fremont, California.
