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American Bar Association - Defending Liberty, Pursuing Justice

 

Vol. 15, No. 3

EMPLOYMENT LAW

Features

 

Marriage to a Foreign National

Love (and a lot of paperwork) conquers all

A U.S. citizen, visiting overseas, falls in love with a foreign national, gets married, and wants to bring his spouse back with him to the United States to live happily ever after. Can he “just do it”? Not in the bizarre world of U.S. immigration laws. The foreign national may have to wait for a period of six to 18 months after the U.S. citizen files the necessary paperwork before an immigrant visa is issued allowing the spouse entry to the United States. And if a U.S. citizen falls in love with a foreign national and they want to marry in the United States, it can take from six months to several years to obtain legal permanent status, depending on the foreign national’s current status.

Marriage in the United States
In the United States, a foreign national and a U.S. citizen can marry according to state law and then initiate immigration paperwork. If the foreign national is in the country legally on a visa, was inspected and admitted through the Visa Waiver Program, or was paroled, the U.S. spouse can file an “immigrant relative petition” with the United States Citizenship and Immigration Service (USCIS) using form I-130; concurrently, the foreign national must apply to the USCIS (an agency of the Department of Homeland Security) for an adjustment of status (form I-485.) Generally, as long as the foreign national is not subject to the numerous grounds for inadmissibility under INA Sec. 212, the foreign spouse will be issued an employment authorization card in about three months, and within six months should be able to get permanent residency following a personal interview with the couple at the local office of the USCIS. If the couple has been married less than two years on the date that permanent resident status is approved, the foreign national will receive a two-year conditional permanent residency (CR-6 “green card”). Within 90 days preceding the second anniversary of the conditional permanent residency ( not the marriage) the couple must file form I-751, a joint petition to remove conditions on permanent residency, using the documented evidence of a bona fide, good-faith marriage. Depending on the evidence submitted, the petition may be approved with or without an interview, and the USCIS will issue a new green card to the foreign national that is valid for 10 years. If the foreign national is still married to the same spouse three years after receiving conditional permanent residency, the foreign national may file for naturalization using form N-400.

If the foreign national was not inspected and admitted, or paroled, the spouse who is a U.S. citizen may file an I-130 petition, but the foreign national cannot apply for an adjustment of status. Instead, the foreign national must depart the United States and apply for an immigrant visa overseas after the I-130 petition is approved. If the foreign national has stayed in the United States for 180 days or more without authorization, a three-year bar will trigger for immigrant visa eligibility once the person has left the United States; if the foreign national has remained in the country for one year or more without authorization, there is a 10-year bar on admission. Depending upon special hardship factors involving the U.S. spouse, a waiver of the bar may be available. A waiver application cannot be filed until the U.S. consular officer has denied the visa and determined that the foreign national is eligible for the discretionary waiver of the bar, further adding to the processing time overseas. Moreover, the waiver application must then be forwarded to an overseas USCIS office for adjudication, which may take additional time.

Another avenue for adjusting the status of the foreign spouse in the United States may be his or her eligibility under INA Sec. 245(I). This provision allows certain foreign nationals who are in the United States unlawfully to adjust their status if the foreign national is or was a direct or derivative beneficiary of an immigrant petition filed by a family-based or employment-based petitioner or a labor certification application filed by a U.S. employer, provided the petition or application was filed on or before April 30, 2001, and that the foreign national was physically present in the country on December 21, 2000.

Bringing Your Intended Spouse Home
When a U.S. citizen meets a soul mate overseas but wants to marry at home, he or she can file a fiancé/fiancée petition (form I-129F), which allows foreign nationals to get a K-1 fiancé(e) visa for 90 days in order to marry in the United States. With few exceptions, the U.S. citizen must have met the foreign national personally at least once in the last two years. If the foreign national already has a nonimmigrant visa (NIV), or does not need a visa under the Visa Waiver Pilot Program, it is not a good idea for the foreign national to come to the United States with an intent to immigrate. The foreign national should apply for a K-1 fiancé(e) visa overseas, otherwise the adjustment of status in the United States may be denied. Once in the United States, within 90 days of arrival, the foreign national must either marry the sponsoring U.S. citizen or depart the country. The foreign national cannot marry anyone else but the petitioning U.S. citizen. After marriage in the United States, the foreign national may file for an adjustment of status, and the same procedures for seeking residency and citizenship that are listed above will apply.

Marriage on Foreign Soil
First, in all cases, an overseas marriage must be valid according to the laws where it took place. When a U.S. citizen marries overseas and wants to return with his or her spouse to the United States, the procedure for obtaining a visa for the spouse differs according to the length of time the U.S. citizen has been absent from U.S. soil. If the U.S. citizen has been overseas for three or more months, an I-130 petition should be filed with the U.S. consulate or the overseas USCIS office. If the U.S. citizen has been overseas less than three months, he or she must return to the United States in order to file the petition with the USCIS. Once approved, which may take three months to a year, the file is sent to the State Department’s National Visa Center (NVC). Next, the U.S. citizen submits the visa application package with affidavit of support to the NVC with the filing fees. After microscopic scrutiny of the forms and supporting documentation, which must include the original paperwork, the file is sent to the overseas post. There the foreign national spouse is interviewed and the U.S. consulate issues an immigrant visa, and gives the foreign national the packet of documents. These are then submitted by the foreign national to the U.S. Customs and Border Protection at the port of entry. At this point the foreign national is admitted as an immigrant and issued a green card valid for two or 10 years, based on the criteria discussed above.

The married foreign national has another option that may entail a shorter wait—apply for a K-3 visa instead of the immigrant visa. The U.S. spouse files form I-129F, after filing form I-130, and upon approval of I-129F, the foreign national applies for a K-3 visa and immigrates to the United States as the spouse of a U.S. citizen. Upon arrival, the foreign spouse must file for an adjustment of status with the USCIS, according to the procedures discussed above.

When a U.S. citizen and a foreign national meet in the United States but decide to marry overseas, both should carefully consider possible consequences. If the foreign national has exceeded the 180-day legal limit, reentry will depend on whether or not the person qualifies for a waiver to the automatic bar of three or 10 years. If the foreign national is present on a nonimmigrant visa, he or she cannot come back to the United States on a nonimmigrant visa after the marriage, due to the potential immigrant bar of INA Sec. 214(b).

It is very important to ascertain the potential grounds of inadmissibility before embarking on the complex process of immigrant visa processing of the foreign national. There are numerous grounds of inadmissibility ranging from an extensive list of criminal acts, to medical grounds, and being a public charge in future.

Satnam Singh is a solo practitioner in Norfolk, VA, specializing in immigration law. He is also vice-chair of the GPSolo Division Immigration Law Committee. Contact him at satnamlaw@aol.com.

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