November 01, 2020 Feature

For Better or Worse? Complexities of Marriage-Based Immigration

Maurice Goldman

Immigration. It’s a topic that is unavoidable nowadays. Nearly every day there is a story in the news about the plight of immigrants trying to discover their American dream and the roadblocks they may face. It’s even been injected into the weekly television programming with reality shows like 90 Day Fiancé, which profiles couples who want to marry and pursue the green card process. The true reality, however, is that the seemingly incessant policy changes make an already-confusing system very difficult to navigate without legal assistance. By the time this article is published, I cannot even guarantee that a policy change or precedent court decision will impact one of the topics discussed below. However, there are some general principles and processes that remain constant throughout all the modifications.

I’m a U.S. Citizen in Love with a Foreigner; What’s Next?

When a U.S. citizen is considering how and when to bring his or her foreign fiancé or spouse to the United States, there are a few different scenarios that can be discussed with the couple:

  1. Fiancé visa: If unmarried, they could apply for a fiancé visa, also known as a K-1 visa, and bring the foreign fiancé to the United States to marry and apply for adjustment of status.
  2. Consular processing: If unmarried, they could marry inside or outside the United States, and then the U.S. citizen can petition for the foreign national spouse via an I-130 petition. Ultimately, the foreign national spouse will process his or her immigrant visa at the U.S. consulate and, if approved, will be admitted to the United States as a lawful resident.
  3. Adjustment of status: A married couple could apply for adjustment of status inside the United States and avoid traveling to the U.S. consulate for processing of the immigrant visa.

Which approach is best? It depends (we say that a lot in immigration law). Some applicants would prefer the consular process over adjustment of status. Some would prefer adjustment of status over consular processing. There are pros and cons to all three of these processes. Please note, while the situations described in this article pertain to marriage with a U.S. citizen, there are other challenges, such as longer wait times and other potential roadblocks, in some cases, when a foreign national is married to a lawful permanent resident of the United States. It is also noted that all these applications require government filing fees and specific filing locations, which are listed on either the U.S. Department of State or U.S. Citizenship and Immigration Services (USCIS) website.

Fiancé Visas

In the case of a fiancé visa, the primary benefit of utilizing this route is that the foreign national is declaring his or her intention to marry upon entering the United States. Therefore, once the visa is issued, it is highly unlikely the foreigner will be questioned about the intent of his or her entry into the United States. It is clear that he or she intends to come to the United States to marry and apply for a green card. On the other hand, if the intending immigrant entered the United States on a B-2 tourist visa and then married and applied for a green card, the government could question what the true intent was upon entry and whether the intending immigrant committed misrepresentation or visa fraud. That can complicate the process for the couple and could require an additional waiver form (I-601) and government filing fee, along with increased uncertainty of whether the green card will be approved.

The process of obtaining a K-1 fiancé visa begins after the couple has met in person within two years of filing, although in rare occasions this requirement is waived by the government. The U.S. citizen will then file a Form I-129F with USCIS and, if approved, the case is transferred to the U.S. Department of State for scheduling at a consulate for the K-1 visa processing. Once the K-1 is issued, the couple will need to marry within the 90-day period after the visa holder is admitted to the United States. If the K-1 visa holder has a child who is under 21 years old and unmarried, that child is eligible for a K-2 visa and can immigrate with the parent.

It is recommended that a couple marry early in the 90-day period. This will allow the foreigner to file for adjustment of status and start the application processing for employment authorization and advance parole (travel permission), which can take up to six months to process. Without these temporary benefits, the foreign national is unable to get a social security number and legally work or travel internationally while awaiting the green card. Once the foreign national obtains the green card, there is no more need for these temporary benefits. Once married inside the United States, the visa holder can file for adjustment of status on Form I-485, submitted to USCIS. Any K-2 child must also file a separate I-485 application. There are additional forms and documents that are required to be filed with the adjustment of status application(s), which are listed in the attached sidebar.

Besides the transparency of the immigrant’s intent, one additional benefit of obtaining the K-1 visa is that the petitioning spouse does not have to file an I-130 petition for the foreign national once he or she has filed for adjustment of status. That is required in the two other processes discussed below. All other requirements for adjustment of status remain the same (see sidebar). The processing times will always vary from one case to another, but you can access approximate processing times for USCIS petitions and applications on their website.

Consular Processing

A different approach from the fiancé visa is to marry, and then the U.S. citizen can file the I-130 petition to the USCIS on behalf of his or her foreign national spouse. Once that petition is approved, the case is transferred to the U.S. Department of State and further processing is undertaken by the National Visa Center (NVC). The NVC will collect additional documentation and fees, and the file will be directed to the U.S. consulate in the foreign national’s home country for final processing. Prior to the appointment at the U.S. consulate, the foreign national will be required to undergo a medical exam by a panel physician designated by the State Department.

One reason why a couple would choose this approach to processing for the green card versus adjustment of status (discussed below) is because the foreign national still has work or family obligations in his or her home country and needs to remain there for the near future. Another reason is that, in the case of adjustment of status, the foreign national will have an extended period of time where he or she does not have the ability to work or travel internationally unless the individual holds a temporary work visa or travel permit that allows for this. This can be extremely frustrating for many who find themselves unproductive while awaiting the employment authorization or may need to travel internationally for some reason.

Adjustment of Status

The third option to consider is adjustment of status after entering the United States lawfully on a nonimmigrant visa. In this scenario, the couple may either be already married or unmarried prior to the foreign national’s admission to the United States. An extremely common scenario is where the foreign national enters the United States on a tourist/visitor visa, also known as a B-2 visa, and subsequently marries the U.S. citizen spouse. This situation does pose some risks that don’t exist for the K-1 visa holder.

The primary concern here is that the USCIS may question the intent of the foreign national upon his or her admission to the United States or even when applying for a visa. The USCIS officer may find visa fraud or willful misrepresentation upon entry to the United States. In some USCIS offices, this has become a significant focus of their investigations during the green card interview. If the marriage takes place and/or adjustment of application is filed within 90 days of the foreign national’s admission to the United States, that could trigger additional scrutiny by USCIS. Applicants should be aware of this prior to filing for adjustment of status, especially if they were married prior to the foreign national’s most current entry into the United States. If an officer finds that there is a misrepresentation or fraudulent usage of the visa, he will require an I-601 waiver be submitted. The I-601 asks the government for forgiveness based on the showing of an extreme hardship to a U.S. citizen, or permanent resident spouse or parent, if the foreign national is unable to get the green card.

Adjustment of status can be advantageous in some cases because it does have a more streamlined approach to processing. The I-130 petition and I-485 adjustment of status applications can be filed concurrently, along with all the additional forms and documents listed in the sidebar. Processing times can also be much faster, but be wary of the inherent risks discussed above. On the other hand, applicants must also consider the fact that they often cannot travel internationally once the adjustment application is filed, depending on what underlying visa they are holding, until they obtain an advance parole. If they do travel without the advance parole, they very well could be abandoning their green card application. They also must wait to obtain employment authorization before they can obtain a social security number and lawfully work, unless they hold a work visa such as an H-1B or L-1.

Proving the Bona Fides of Marriage

In all marriage-based immigration cases, the couple must establish that the marriage is in good faith. The burden of proof is on the couple to demonstrate this through either credible testimony or documented evidence. The USCIS will consider numerous documents in the evaluation of good faith, including

  • birth certificates of children of the married couple;
  • commingled financial evidence such as joint bank account(s), tax return(s), ownership or leases of property or vehicles, etc.;
  • insurance records that show the spouse as a beneficiary or dependent;
  • utility bills issued to the couple jointly;
  • wedding pictures or other social event pictures; and
  • affidavits from friends or relatives attesting to the bona fides of the couple’s relationship.

The officer must find, by the preponderance of the evidence, that the couple is in a good faith marriage. The more evidence presented, regardless of how long the couple has been married, the better off they will be in the final evaluation by the officer. I always tell clients just “bring the kitchen sink” to the green card interview and/or submit with the initial application. Most of the time the officer will not need to see all the evidence, but always prepare for a difficult interview.

In some cases, the USCIS adjudications officer may separate the couple and question each spouse about the details of their relationship. These interviews can often take well over an hour and be extremely detailed in the questioning. It is recommended to always warn clients ahead of time about this risk and that they should be prepared to answer questions, separately, about the history of their relationship, common interests, each other’s daily routines or work schedules, their hobbies, favorite foods or television shows, etc. The subject matter that they could be questioned about is quite extensive, so they are best off being mentally prepared for this to occur.

Important note: Assuming everything goes well with the process, the foreign national spouse (and child) will be granted either a conditional residence designation or lawful permanent residence. Conditional residence is designated when the couple is married for less than two years at the time of the approval. In that case, the foreign national spouse (and child) will be issued a two-year conditional resident card. If the couple is married more than two years at the time of the approval, the spouse (and child) will receive a 10-year permanent resident card with no conditions.

Conditional Residence

Conditional residence provides the foreign national spouse with all the same benefits as a lawful permanent resident, apart from the two-year expiration on the card. The conditional resident can work in the United States without restriction and travel internationally, and time counted as a conditional resident will go towards when the foreign national can be eligible for naturalization. Prior to the expiration of the conditional resident card, the foreign national must file a Form I-751, Petition to Remove Conditions on Residence, with filing fee to USCIS. Many I-751 petitions require a second interview with USCIS.

Obviously, much can happen during the two-year period following the approval of conditional residency. Therefore, the law addresses different scenarios and requirements depending on the circumstances:

  1. The marriage is still intact and the couple files an I-751 jointly. In this case, the filing is made within 90 days of the expiration of the conditional resident card. The couple will want to include all continued supporting documentation to establish the bona fides of the marriage. Once the petition is submitted to USCIS, the conditional resident will be scheduled for a biometrics appointment and receive an 18-month notice extending her residency while the I-751 is pending. This application can take a long time to process, so the 18-month extension is critical for the continued proof of ability to work and travel internationally, especially after the conditional resident card expires. Late joint filings are also permissible, but only with “good cause” shown.
  2. There are additional situations where the I-751 applicant can request a waiver of the joint filing requirement. In these instances, the petition can be filed at any time with the joint-filing waiver requested:
    a. When the marriage was entered in good faith but has been terminated;
    b. When the marriage was entered in good faith but, during the course of the marriage, the conditional resident or her child was battered or subjected to extreme cruelty;
    c. When it would be an extreme hardship if the conditional resident was removed from the United States. This waiver does not require a termination of the marriage or proof of good faith. Showing “extreme hardship” can be difficult in this circumstance.
  3. If the U.S. citizen spouse dies after the conditional residence is granted, the resident can file the petition individually.

Remember, that time as a conditional resident counts towards naturalization. Therefore, after three years of being a conditional resident, an individual can opt to apply for U.S. citizenship via naturalization if they have remained married and living with a U.S. citizen spouse for the three-year statutory period. Most applicants for naturalization must wait five years as residents prior to filing for citizenship. Thus, sometimes it will be advantageous to file for naturalization even while the I-751 petition is pending, especially when the I-751 petition is taking over 1.5 years to process. This can force the government to adjudicate both applications concurrently in one interview.

Protections Under the Violence Against Women Act

The Violence Against Women Act (VAWA) offers protections for those immigrant victims of battery or subject to extreme cruelty. Victims include the spouse or child of a U.S. citizen or lawful permanent resident, or the parent of a U.S. citizen, who is subject to battery or extreme cruelty by the U.S. citizen or lawful permanent resident spouse or parent. The foreign national victim can file a self-petitioned I-360 form to the USCIS. In the case of a marriage, the I-360 application must be filed with evidence that he or she resided with the abuser, he or she was battered or subject to extreme cruelty during the marriage, the marriage was entered in good faith, the foreign national is otherwise eligible for permanent residency, and the foreign national has good moral character.

In many cases of abuse, the U.S. citizen or permanent resident spouse will use his or her power over the foreign national and threaten to contact the government and report the foreign national. The spouse may also try to stop the process from going through. The foreign national victim can get protection under VAWA by showing the control and abuse being perpetrated on him or her. The VAWA application undoubtedly offers necessary protections to many foreign nationals who are subject to the power and control of a U.S. citizen or permanent resident spouse or parent.

Affidavits of Support, the New Public Charge Rule, and Prenuptial Agreements

The affidavit of support requirement has been a part of the immigration process for over two decades. Each intending immigrant, with some exceptions, must file an affidavit of support on Form I-864 that has been signed by the petitioning family member. A similar Form I-134 is used for a K-1 visa applicant when the immigrant applies through the U.S. consulate. The affidavit of support must show a household income of at least 125% of the poverty level for that household size. This is based upon a chart published by the U.S. Department of Health and Human Services. If the petitioning family member does not have sufficient income, the applicant can have a “joint sponsor.” The “joint sponsor” can be either a lawful permanent resident or U.S. citizen but does not have to be related to the applicant. In some cases, assets can be used in lieu of income, based on a shortfall of annual income.

The affidavit of support is a legally enforceable contract against the sponsor that can be brought either in actions by the sponsored immigrant or in a federal, state, or “other entity” that provides a means-tested benefit to the foreign national. The benefits that are potentially subject to sponsorship liability are nonemergency Medicaid and the Children’s Health Insurance Program (CHIP), the Supplemental Nutrition Assistance Program (SNAP, or “food stamps”), and Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF) (SSI and TANF comprise “cash assistance”). States may also designate state-funded means-tested public benefits that could give rise to sponsor liability. If the immigrant ever obtains a means-tested benefit for which he or she is not eligible, the agency or entity that provided it can seek reimbursement from the sponsor.

In the case of a divorce, the sponsored immigrant can also sue the sponsor to enforce the maintenance agreement. A prenuptial agreement does not waive a sponsor’s obligation and liability under the I-864. While case law is scarce regarding the extent that an affidavit of support can be enforced against the sponsor to maintain the immigrant at the 125% income level promised in the contract, there have been state family court decisions that have held the affidavit of support obligations are enforceable over the prenuptial agreement. It is recommended that clients who are pursuing a prenuptial agreement get extensive counseling prior to moving forward with the agreement and marriage. If an attorney is going to be filing the immigration paperwork on behalf of the couple, the attorney should not also draft the prenuptial agreement. This would create an automatic conflict of interest for the attorney and could make the attorney liable for malpractice.

A policy that recently went into effect on February 24, 2020, is the public charge rule. This rule now requires all adjustment of status or immigrant visa applicants to show that they are not likely to become a public charge. The public charge rule shifts an officer’s attention to the applicant’s health, age, family status, education/skills, financial status, assets, and resources. This is a significant development that could ultimately adversely impact many low-income, lower-skilled, undereducated, elderly, or disabled applicants in their attempt to immigrate. The form that is now required, in addition to the affidavit of support, that provides the information for this evaluation is Form I-944. There is still pending litigation regarding this rule, but as of now it is fully in effect.

Conclusion

The reality is that immigration through marriage is not a simple process. There are many considerations that must be considered when embarking on this journey. The process is constantly under scrutiny, and policy changes can impact even the least-complicated cases. It is recommended to keep a constant eye on the system and what changes are either in effect currently or could be coming down the road. A keen understanding of the immigration system, and what options your clients have, can make their decisions more informed and the processing a little less confusing.

Documents and Forms to Be Submitted for Marriage-Based Adjustment of Status

  1. All documents in a foreign language must be translated to English.
  2. Send copies, not originals.
  3. birth certificate of petitioner
  4. proof of U.S. citizenship or permanent residency for petitioner (e.g., naturalization certificate, U.S. passport, green card)
  5. birth certificate of beneficiary
  6. any divorce decrees or proof of termination of previous marriage(s) for either petitioner or beneficiary
  7. marriage certificate
  8. copies of any immigration documentation for beneficiary (e.g., visa, I-94, passport stamp, passport bio page, I-797 approval notices)
  9. proof of lawful nonimmigrant admission or maintenance of lawful nonimmigrant status.
  10. if necessary: proof for 245(i) eligibility
  11. six 2 × 2 passport pictures of beneficiary
  12. two 2 × 2 passport pictures of petitioner
  13. one year of income tax return and W-2 (recent tax year filing) for petitioner (for affidavit of support) OR proof of sufficient assets in lieu of income
  14. one year of income tax return and W-2 (recent tax year filing) for joint sponsor (for affidavit of support) OR proof of sufficient assets in lieu of income and proof of their residency or citizenship in the United States
  15. I-693 medical exam for beneficiary (must remain in sealed envelope)—can be submitted later
  16. evidence of bona fides of marriage (birth certificate of child together, joint/commingled assets, bills addressed to both spouses, photos together, jointly filed taxes, insurance, affidavits from friends/relatives, etc.)
  17. evidence for I-944 Declaration of Self-Sufficiency (see instructions; depends on the applicant)
  18. Standard Forms:
  19. I-485
  20. I-765
  21. I-130 (if not already approved for I-129F)
  22. I-130A
  23. I-131
  24. I-864 (possibly I-864A as well)
  25. I-944
  26. G-28’s, if you are an attorney filing for the applicant
  27. I-693 medical in sealed envelope
  28. I-601 waiver (if required by USCIS)

Documents to Be Submitted for Fiancé (K-1) Visa

  1. All documents in a foreign language must be translated to English.
  2. Send copies, not originals.
  3. birth certificate of petitioner
  4. proof of U.S. citizenship for petitioner (e.g., naturalization certificate, U.S. passport, birth certificate)
  5. birth certificate of beneficiary
  6. any divorce decrees or proof of termination of previous marriage(s) for either petitioner or beneficiary
  7. marriage certificate
  8. proof that the couple has met in person within two years of filing I-129F (unless they qualify for a waiver of the meeting requirement)
  9. statements of intent to marry from both petitioner and beneficiary
  10. one 2 × 2 passport picture of both petitioner and beneficiary
  11. Forms:
  12. I-129F; once in the United States, submit forms listed above except I-130
  13. I-134 at consular processing stage

Documents to Be Submitted for VAWA Self-Petition

  1. All documents in a foreign language must be translated to English.
  2. Send copies, not originals.
  3. birth certificate for applicant
  4. copy of passport bio page for applicant, if available
  5. proof of U.S. citizenship or lawful permanent residency for “abuser” spouse
  6. proof of good faith marriage with spouse (any credible evidence)
  7. sworn affidavit from petitioner about the marriage and abuse/extreme cruelty
  8. proof of battery or extreme cruelty by spouse (e.g., order of protection, police report, court documents, affidavit or letters from domestic violence shelter, affidavit or letter from friends or relatives with firsthand knowledge of the abuse, etc.)
  9. if divorce has been filed, evidence of divorce and grounds for it
  10. proof of good moral character for applicant (e.g., certificate of good conduct from local law enforcement, letters/statements, etc.)
  11. Form I-360
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Maurice Goldman is an immigration attorney with Goldman & Goldman, PC in Tucson, Arizona.