Immigration: Love, Marriage, and the Green Card 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 US 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 a bona fide (literally “good faith”) marriage 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, the combination of assets, joint leases, joint financial responsibilities and images. It is generally accepted that a couple knows the most intimate affairs of the other. 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 does not enter into a fraudulent marriage. A fraudulent marriage will penalize both the petitioner (US citizen spouse) and the beneficiary (the person who gets the benefits) and could even result in criminal charges, including jail time. While 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 in, for example, 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 day of the wedding. The exception to this rule is if the marriage is consummated after the proxy marriage.

Once married, paperwork can be processed within the United States, if the beneficiary (green card holder) is in the United States, or can be processed abroad through US consulates. In the case of processing cases abroad, you can opt for a K3 visa to reduce the waiting time. Also, if you are not yet married, you can also bring your fiancé on 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 entered the United States legally, 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 talk to an experienced attorney about her particular case. Also, if you have overstayed your visa, you definitely need to speak with an immigration attorney before proceeding with any type of case.

During the adjustment of status process, you should not leave the United States unless you file and obtain an approved speaking/re-entry permit. 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 port of entry in the US, 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 definitely should 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 must not leave because this time he will be subject to a 10-year ban. The same rule as the 3-year ban will apply, except the ban is for 10 years now and the waiver 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 filed. 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 any such interviews. In fact, a licensed attorney will be allowed to sit with you at the interview. If the awarding 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 within a week of your case being 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, they may call you back for another interview or deny your case. Technically, if it is denied they will give you a month before referring 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 your marriage was not in good faith. Once again, hiring an experienced attorney to move forward with these cases is highly recommended.

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 a conditional residency. Typically, a conditional green card will have an expiration date of 2 years from the date of issuance. You will need to remove that conditional residency status beginning 90 days from the second anniversary of the green card issuance by filing a Form I-751. It is imperative to submit 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 green card approximately 6 months after you file Form I-751. If Immigration has reason to suspect a crime has been committed, they will start an investigation and then may call you and your spouse in for a conditional 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 anniversary of the expiration of the conditional green card. The following are some potential scenarios.

Divorce finalized before filing removal of conditional residence.

In this case, it is necessary to file the elimination of the conditional residence exemption (Form I-751) even if the marriage has not reached two years. You will be required to prove that your marriage was entered into in good faith and that the marriage was not terminated through your fault. Generally, the process will follow the same path as when you file the case together with his wife;
The two-year anniversary of the conditional green card is up and the divorce is not finalized. In this case, you will need to finalize the divorce as soon as possible in order to file the Form I-751 exemption; Y
You were able to file your joint petition for removal of conditional residence 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 attorney about your particular case.

There are other provisions under the law to protect beneficiaries, namely from abuse by 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. 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 unique cases. We will try to cover them in our next article.

And remember, it is highly recommended that you 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 at issue from an attorney licensed in the recipient’s status. 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]