Permanent Residency through Marriage
Marriage and Immigration Lawyer
Many immigrant obtain permanent residence (green card) through marriage to a US Citizen (USC) or Permanent Resident (PR) spouse. This is one of the most common basis for many immigrants in obtaining a green card. There are two major routes in this process: (1) Adjustment of Status (when the immigrant is present inside the United States) and (2) Consular Processing (when the immigrant is outside the United States).
Generally speaking, adjustment of status route is a faster than consular processing. However, in many cases, consular processing is the only option for many immigrants. For example, an immigrant who entered the United States illegally will most likely be eligible to adjust status within the United States with a few limited exceptions. This problem often arises when an immigrant entered the country illegally.
Spouses of US Citizens have a visa number immediately available. So these individuals will not be required to wait prior to filing. In most instances, the spouse and US Citizen will be allowed to file the I-130, Petition for Alien Relative at the same time that the I-485, Application to Register Permanent Residence or Adjust Status, is filed. At this time, the processing times are currently take 3-5 months to process from the date of filing in Oklahoma.
On the other hand, spouses of Permanent Residents fall under the 2A visa category. Currently, these individuals will have to wait at least two (2) months for his or her visa number to become available. Until his or her visa numbers becomes current, these individuals will not be allowed to apply for Permanent Residence (Form I-485). For example, Bob is a Permanent Resident and Susan is a citizen of Argentina and plan to marry each other. Bob can file the I-130, Petition for Alien Relative as soon as they marry. However, Susan will have to wait at least two (2) months before she can apply for Permanent Residence status.
If you are looking for affordable immigration attorneys with vast experience dealing with immigration marriage cases and immigration officials, call us today at 405.600.9910. Free consultation available.
General Criteria for a Bona Fide (valid) Marriage:
- The marriage must be valid and consummated properly in accordance to the laws of the country where the marriage took place;
- The marriage must remain valid throughout the whole process (cannot get divorced while application process is pending); and
- The marriage must be bona fide and not for immigration purposes
Adjustment of Status Process
If a person is eligible to adjust status within the United States, the process begins with filing forms with USCIS; including but not limited to, the I-130, Petition for Alien Relative and I-485, Application to Register Permanent Residence or Adjust Status. The immigrant may be eligible to file for work authorization and/or advance parole at this time. Once USCIS receives and processes each application, the immigrant will be scheduled for a biometrics appointment for fingerprinting. Several months later, the spouse and the US Citizen will be scheduled for an interview with an USCIS officer. At the interview, the officer will determine the validity of the marriage among other items.
Although this process may seem rather simple, there can arise countless complications throughout the adjustment of status process. Please contact an immigration lawyer PRIOR to filing to prevent delays and often potentially extreme consequences to your application.
Consular Processing Process
In most cases, consular processing begins with filing the I-130, Petition for Alien Relative, in the United States. Once the I-130 application is approved and your visa number becomes available, the I-130 application will be sent to the National Visa Center (NVC). At the NVC, applicants will be required to submit additional forms and documents, including original documents. Once NVC receives the necessary forms, the application will be sent to the consulate office where the immigrant resides most likely. At this time, an interview will be scheduled and the immigration will be required to undergo a mandatory medical checkup. If the application is approved, the immigrant will be allowed to enter the United States and he or she will receive his or her Permanent Resident (Green Card) card in the mail soon thereafter.
Please note that if an immigrant is currently present in the United States, there may be severe consequences when immigrant leaves the United States to attend an interview at a consulate office. Often times, an immigration bar from re-entering the United States may be triggered when an immigrants leaves the United States For example, John, a US Citizen, and his wife Mary, a citizen of Mexico, have recently married and applied for the I-130 application. Mary entered the United States illegally in 2004. Because she entered illegally, she is not eligible to adjust status in the United States. Once the I-130 is approved, Mary leaves to Mexico for her appointment. Upon leaving the US, Mary triggered a bar from entering the United States for ten (10) years. Under the Immigration and Nationality Act (INA), an immigrant who is illegally present in the United States for a year or longer cannot re-enter the United for ten (10) years. This bar is triggered once the immigrant departs the United States. Please contact an immigration attorney PRIOR to filing to prevent delays and often potentially extreme consequences to your application.
Differences Between Adjustment of Status and Consular Processing
The main difference between these two procedures is the waiting period. At this time, adjustment of status is taking approximately 3 to 5 months to complete inside the United States. Further, it allows the married parties to remain together while their application is pending. On the other hand, consular processing is currently taking approximately between 6 months to 1 year for processing. In addition to the discrepancy in waiting period, adjustment of status allows us as your attorney to go to the interview with you in person. This way if any legal issues arise, we are able to handle the situation at the interview.
Sometimes consular processing is the only procedure available to many clients as their spouse is located in another country. Please feel free to contact us for a free consultation to determine what your best course of action will be at (405) 600-9910.
Proof of Bona Fide Marriage
Regardless of whether an immigrant goes through the adjustment of status or consular processing process, he or she will have to prove a bona fide marriage to the immigration officer to receive a Permanent Resident card. Essentially, the parties must proof that the marriage is real and genuine. Although there is no set pieces of evidence that the officer must look at, there must be enough evidence to establish a bona fide marriage. Evidence of bona fide marriage may include:
Please keep in mind the immigration officers at the marriage interview are highly trained and experienced. Many of the officers have interviewed countless married couples and are good at their jobs. Often times, parties may raise suspicious red flags prior to the marriage interview. This often arises when a married couple do not live together, have not known each other very long before marrying, wide age difference between the parties, and when the parties come from different backgrounds. Although these factors may make the marriage look suspicious, it does not mean the immigration officer will deny the case but you will need to provide a clear explanation for any red flags. Please contact an immigration lawyer PRIOR to any filing to assist you in this process in addition to help submit enough evidence to prove a bona fide marriage.
Conditional Permanent Residence
Under current laws, an immigrant who has been married less than two (2) years his or her spouse will be given conditional permanent residence for two years. Ninety (90) days prior to the expiration of the 2-year Permanent Resident card, the immigrant is required to file a form I-751, Petition to Remove the Conditions of Residence. Please note that filing the application too early or too late may cause severe consequences. If the parties are still married and in a bona fide marriage at the time of filing, the parties can file a joint petition to remove conditions.
However, if the parties have unfortunately divorced or in the process of divorce or the U.S. Citizen spouse has passed away, the immigrant will have to file for a waiver. At this time, the waivers available are (1) my spouse is deceased; (2) I entered the marriage in good faith, but the marriage was terminated through divorce or annulment; (3) I entered the marriage in good faith, and during the marriage, was battered, or was the subject of extreme cruelty, by my U.S. citizen or permanent resident spouse; or (4) the termination of [your] status and removal from the United States would result in extreme hardship. If you are applying for the Form I-751 based on a waiver, it is high recommended that you hire an experience immigration lawyer as such cases can be very difficult.
If the I-751 is granted, the individual will be granted a 10 year Permanent Resident card and will be allowed to apply for Citizenship if he or she chooses to do so and meet the citizenship requirements.
If you are looking for affordable immigration attorneys with experience, dedication, and understanding, call us today at 405.600.9910. Free consultation available.
K-3 Visas
U.S. Citizens are allowed to apply for his or her spouse for a K-3 visa. Although a U.S. citizen is applying for his or her spouse, a K-3 visa is deemed a non-immigrant (temporary) visa because the immigrant spouse will be required to apply for permanent resident status (I-485) once he or she enters the United States. This process is almost identical to the process that persons undergo through consular processing. You may ask yourself why people would apply for a K-3 visa rather than go through consular processing? The reason is that many people believe that applying for a K-3 visa is faster than consular processing. The truth is that this may have been true over five (5) years ago, but at this time, both processes take roughly the same time.
As such, we recommend you apply for your spouse via consular processing rather than through a K-3 visa. By consular processing under the CR1/IR1 category, the immigrant spouse will receive his or her Permanent Resident card via mail usually within six (6) weeks of arriving in the United States. On the other hand, K-3 visa holders will be required to file I-485 form to apply for permanent residence status inside the United States. This makes the K-3 process more burdensome and expensive rather than just applying through consular processing. Given that the processing times are relatively the same and no other advantage in filing a K-3 visa, we recommend that you apply for your spouse via consular processing under the CR1/IR1 category.
Fiancé(e) Visa (K-1 Visa)
If you are unable to marry your girlfriend or fiancé(e) at this time due to financial considerations, timing issues or any other reason, you may still be eligible to apply for your fiancé(e) visa to legally enter the United States and marry within ninety (90) days of his or her arrival to the United States. For more information on applying for a fiancé(e) visa, please visit our Fiancé(e) Visa (K-1 Visa) page to see the requirements.