Love, Marriage and the Greencard!
By: Shah Peerally Esq.
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 spouse has the immediate ability to file for a permanent residence under a first category preference. It is good to know that a permanent residents (“greencard” holders) can also file a marriage petition however the waiting time for the priority date is long and therefore does not confer immediate ability to obtain a greencard.
The first consideration in marriage cases is that the marriage has to be bona fide (literally in “good faith”) or a marriage not with the intention of solely getting immigration benefits. A good faith marriage is predicated on the intent of the bride and groom to establish a life together at the time that they were married. The United States Citizenship and Immigration Services (USCIS) formerly the INS (“Immigration”), has various criteria for determining if a marriage was entered in good faith. These include but are not limited to commingling of assets, joint leases, joint financial responsibilities, and pictures. It is generally accepted that a couple knows the most intimate affairs of each other. This is why it is very important to document your marriage in order to present evidence of your bona fide relationship. It is imperative that a person does not enter into a fraudulent marriage. A fraudulent marriage will penalize both the petitioner (US Citizen spouse) and the beneficiary (the person obtaining the benefits) and might even result in criminal charges including prison time. While Immigration does not recognize fraudulent marriages, they will recognize an arranged marriage as long as it is entered in good faith.
In order to file for a marriage petition, one should have a valid marriage. A valid marriage is one which is recognized in the State in which it takes place. For example, if Ram gets married to Anita in Nevada and moves to California, this marriage will be recognized by the Immigration. However, if Ram and Anita are first cousins, Nevada will not recognize the marriage and thus Immigration will also not recognize this marriage. This is very important because you might not know this fact until you file your petitions with the Immigration. Also if the marriage takes place, for instance, in Fiji, Immigration will recognize the marriage as long as the marriage is recognized in Fiji. Note that a proxy marriage will not be recognized. A proxy marriage is one where the bride and groom did not meet on the wedding day. The exception to this rule is if the marriage was consummated after the proxy marriage.
Once married, the paperwork can either be processed inside United States, if the beneficiary (the one obtaining the greencard) is in the United States or it can be processed overseas through the US consulates. In the case of processing the cases overseas, one can opt for a K3 visa to reduce the waiting time. Also if no marriage has yet taken place one can also bring his or her fiancé on a K1 visa. Such visas are only available for 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 has to have entered the United States legally albeit for one day. This means 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 you proceed 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. You should know that 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 years bar. This bar will prevent the person not only from getting back into the US but also in obtaining permanent residence. At that point only a waiver can help you. It is important to know that waivers are not easy to obtain. 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 obtain.
Once you file for your marriage petition, you will be called for fingerprint and for an interview within 3 to 8 months, provided the papers are properly filed. You are supposed to attend this interview with your spouse and proofs that your marriage is bona fide (good faith). At this point, it is highly advisable to have an attorney present with you during such interviews. Indeed 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. In another case scenario, if the officer is not satisfied, you might be called for another interview or they might deny your case. Technically, if it is denied they will give you one month before referring the case to the Immigration Judge. This will allow your attorney to possibly file for a motion to reopen the case. If this fails then the case will be argued in immigration court. The immigration judge will review the case de novo (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 as from the date of issue. 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 be given a permanent residence card for 10 years approximately 6 months after filing the Form I-751. If the Immigration has reason to suspect foul play, they will launch an investigation and then might 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 preceding the anniversary of the expiry of the conditional greencard. The following are few potential scenarios.
- Divorce finalized prior to filing the removal of conditional residence. In this case, one needs to file the removal of conditional residence waiver (Form I-751) even if the marriage has not reached two years. You will be required to prove that your marriage was entered in good faith and the marriage was not terminated through your fault. The process will follow typically the same path as when you file the case jointly with your wife;
- Two years anniversary of the conditional green card has come to term and the divorce is not finalized. In this case, you will need to get the divorce finalized as soon as possible so that you can file the Form I-751 waiver; and
- You were able to file your joint petition of removal of conditional residence and during this time your marriage is facing troubles and you separate and intent 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 permutations of situations regarding the removal of conditional residence namely abusive US citizen spouses, or hardship situations. You should speak to your attorney regarding your particular case.
There are other provisions under the law to protect beneficiaries namely in case of abuse by US citizen spouses. In case, one is abused by his/her citizen spouse, one will be eligible to file for VAWA (Violence against Women Act) protection. Note that VAWA can be used in favor of man also. 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 cover them in our next article. And remember, it is highly recommended to speak to an experience licensed attorney before filing any kind 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 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 site 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 www.peerallylaw.com Ph:510 742 5887