When all U.S. immigration options appear not available, the most sought-after and highly recommended alternative for obtaining the seemingly elusive Green Card is through marriage with a US Citizen. Most immigration lawyers consider this option as the “fast track” or almost a guarantee to obtain the Green Card. With this in mind, Green Card through Marriage petitions have, since time immemorial, been and will continue to be the source of most fraudulent immigration procedures.
Marriage fraud is the term used to refer to marriages that are considered sham or “fixed” with the purpose of circumventing the U.S. Immigration Laws. These marriages are considered illegitimate or considered a felony for it carries a penalty of 5 years imprisonment or $250,000 fine or both if convicted. Sham marriages are not based on love and the couple do not really intend to establish a life together (Bark vs. INS, 511 F2d. 1200 (9th Cir. 1975)). Most USCIS Adjudicators and Department of State Visa Consulate Officers will espouse that inherent bias that 70% of these types of petitions are fraudulent. Thus, it is incumbent upon all petitioners and applicants to prove the legitimacy of their marriage.
There three (3) ways to obtaining a Green Card through marriage, to wit:
1. Marriage to US Citizen.
When a foreign national marries a US Citizen, he/she shall be considered an “immediate relative” under the U.S. Immigration Nationality Act (INA). The benefit of being an immediate relative is that the visa number is immediately available and there is no backlog to speak of. Whatever delay that maybe experienced is just the processing of the Petition.
If the spouse of the US Citizen is in the U.S. and eligible to apply for Adjustment of Status (AOS) at the time of application, the spouse can apply for AOS concurrently filed with the Petition for Alien Relative (I-130), Applications for Employment Authorization Document (EAD) and Travel Document together with supporting documents. As a general rule, only those who are maintaining a lawful non-immigrant visa can apply for AOS. However, whatever unlawful presence (gone out of status) and unauthorized work (working without USCIS Authorization) violation committed by the spouse shall be considered “waived” under the Section 245 (a) of the INA. Thus, visitors who have gone out of status for many years and have worked illegally in the U.S. can generally still be eligible to apply for AOS. The eligibility for AOS is a bit complicated and that legal issue shall be determined only by an honest, qualified and experience immigration attorney. Not everyone is entitled to apply for AOS such as those who “jumped ship”, who crossed the border illegally, those who committed fraud or crimes involving moral turpitude and other forms of inadmissibility. Even with those ineligibilities, there are still exceptions to the general rule such as the Section 245 (i) eligibility under the Life Act passed by President Bill Clinton in 1998 that was extended until April 30, 2001.
The process takes about 6-8 months before the Green Card is issued. Within this time period, the foreign national shall undergo biometrics schedule at the nearest USCIS Support Center for fingerprinting and photo session for background checking. Within 90 days from concurrent filing, the foreign national shall be entitled to the EAD which shall in turn allow him/her to secure the SS number from the nearest Social Security Administration (SSA) office. These two documents (EAD and SS number Card) will legally entitle the spouse anywhere in the U.S. About a few months after the biometrics, there will be an Adjustment Interview at the nearest USCIS Field Office to be the conducted by the USCIS Adjudicator assigned to the case.
Adjustment Interview is the final stage to present proof of legitimacy of the marriage and the ability of the Petitioner to financially support the spouse through the Affidavit of Support (i864) so that the spouse will not become a public charge based on the most recent Federal Poverty Guidelines (I-864P). If marriage has been at least two (2) years on the day Green Card is awarded, the spouse will be afforded the regular 10-year Green Card, otherwise, a two (2) –year Conditional Green Card will be given which will require the couple to file a Joint Petition to Remove the Conditional Residence within 90 days before the expiration of the two (2)-year Green Card. For more practical tips regarding USCIS Adjustment Interview, please go to our website blog on the topic at US IMMIGRATION INTERVIEW Part 1: PRACTICAL TIPS FOR ADJUSTMENT INTERVIEW (Marriage-Based or Spousal Petitions).
If the spouse is abroad, the Petitioner simply files a Petition for Alien Relative (I-130) with the USCIS. The USCIS will then approve it within 3 to 6 months and forward the whole record to the National Visa Center (NVC). NVC will then require the Petitioner to submit Affidavit of Support(I-864) and supporting documents to prove capability of the Petitioner to financially support the foreign national and the civil documents (DS-260, Birth Certificate, Marriage Certificate, Passport page and pictures and etc.). Once found complete by the NVC, it will send the record to the U.S. Embassy or Consular post of the place where the foreign national resides so that the latter will undergo medical examination and finally the Visa Interview. The US Visa Interview is again intended to determine the admissibility of the spouse (no crimes or fraud committed, the legitimacy of the marriage and the financial capability of the Petitioner to support the spouse on the latest Federal Poverty Guidelines (I-864P). If approved, the spouse will receive his/her Passport in the mail with the U.S. Visa and a secured envelope to be surrendered to the Port of Entry (POE) officer in the U.S. for processing. Same rules apply for those who were married at least two (2) years (2-year Conditional Green Card) and those who were married for at least two (2) years (10-year Green Card) on the day it is given. Green Card and SS number card will be mailed to the foreign national after setting foot in the U.S. soil.
Children (below single and 21 years old) of the spouse maybe petitioned by the U.S. Citizen provided they got married before these children turned 18 years old. The U.S. Citizen is considered the “step-parent” and must petition each child separately because petition does not have derivative status—meaning, the petition does not create derivative beneficiaries unlike marriages to a Permanent Resident below explained.
2. Marriage to Permanent Resident or Green Card Holder.
This type of marriage does not enjoy the same benefits as that of marriage to the U.S. Citizen. The spouse of a non-US Citizen cannot immediately apply for AOS because the visa number is not immediately available. There is a usually a backlog under the F2 Visa Category and the visa has to be available to apply for AOS. If the spouse is in another lawful non-immigrant visa (Student Visa or Working H1B visa) then the spouse can merely wait for the F2 Visa to be current then apply for AOS, otherwise, the spouse has to go back to the home country and apply for the Visa through the U.S. Embassy or Consular Office. Note that the timeline for processing shall always be governed by the availability of the Visa as stated by the latest DOS Visa Bulletin.
Note also that marriage to non-US Citizen does not forgive the unlawful presence and unauthorized work violation committed in the past when a petition is filed and thus AOS is not an option not to mention that there is a usual backlog under the F2 Visa Category. The only way that these violations are deemed forgiven is for the Green Card Holder to become a US Citizen and later on “upgrade” the Petition to an “immediate relative” petition explained below.
Children (single and below 21 years old) of the spouse are necessarily included as derivative beneficiaries under the F2 Visa Category as they have derivative status unlike if they were petitioned by their US Citizen stepparent as explained above.
3. K1 or Fiancee Visa
This option is available only if the foreign national intends to marry a US Citizen but NOT a Green Card Holder. This is actually a non-immigrant Visa that allows the fiancé to come to the U.S. to reunite with the fiance US Citizen and get married within 90 days from date of arrival. Once they are married, the K1 Visa Holder shall then apply for AOS (no need to file the I-130) and the same procedure is followed mentioned above regarding AOS based on marriage to U.S. Citizen.
We usually recommend this immigration procedure because it is faster as the process takes only less than six (6) months and the fiancé is already here in the U.S. However, there are attendant expenses that would not sit well with budget conscious couples. The most critical aspect of the petition is that the Petitioner must have adequate financial capability to support the foreign national fiancé because some U.S. Embassies or Consular Posts (like the Philippines) do not allow joint sponsors in the event the Petitioner is found not have adequate income to support the fiancé in the U.S. This will surely cause the denial of the K1 Visa Petition.
The fiancé will be interviewed at the Consular posts and must prove the legitimacy of the relationship before the Consular Officer as well as the adequacy of the Petitioner’s income. The fiancé will also undergo medical exams before the interview which shall be valid for one (1) year and can be used in the as supporting document in the application for AOS. The usual Affidavit Support that is submitted is the I-134 which is the non-contractual type of Affidavit unlike the I-864 which is a contract between the affiant and the US Government to support the beneficiary. Under the latter case (I-864), divorce between the couple does not obliterate the obligations under the contract to support the beneficiary-spouse.
Children (single and below 21 years old) of the K1 Visa Holder will also be included in the Petition and shall be allowed apply and to come to the U.S. together with the K1 Visa. These children will be given K2 Visa.
The foregoing options are available to those who are in a legitimate relationship and marriage. They appear to be simple and you have heard anecdotes of successful processing without the legal representation. Always remember though that your personal information and circumstances are not exactly the same and your case might be decided differently. When complications set in, and you adamantly attempt to pursue your case without proper legal representation, you might be opening a can of worms and eventually find your case denied. Such desperate situation would mean costly consequences not to mention the consequent delay. With the current stricter trend on adjustment of status and consular processing, we strongly recommend you engage the services of an experienced, compassionate and honest immigration attorney who will not only help you every step of the way but will guide you even up to the interview stage.
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DISCLAIMER: The foregoing article does not create an attorney-client relationship. This is just a general discussion of the topic and should not be interpreted to provide a specific legal advice to those who may appear to have similar situations mentioned. We do not claim that this article covers all possible aspects and requirements or procedures of the topic discussed.
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