I Just Got Married – Can I Apply for My Green Card
and Undergo All Processing in the U.S.?
August 8, 2003
This is definitely one of the more common questions presented to me as an immigration lawyer. Sometimes the client in question got married to a lawful permanent resident (“green card” holder) and sometimes to a U.S. citizen. Sometimes the client is in status, other times they have overstayed their visa. Other times, they came with someone else’s visa, or with no visa at all.
The following are my most common responses to the scenarios presented above (for this discussion, we assume the parties are residing in Illinois or Northwest Indiana (the Chicago area):
Visa Overstay Marries a U.S. citizen:
Unless you overstayed a K-1 fiance visa, or a crewman’s visa, you will be eligible to file all of your adjustment of status paperwork at a local Bureau of Citizenship and Immigration Service office, such as the Chicago District Office. No paperwork needs to be filed with CIS Regional Service Center in Nebraska. Waiting time for an interview at CIS Chicago is approximately 2 years, although applicants are eligible to receive an Employment Authorization Document (EAD) within 90 days of filing – and remain eligible to extend their EAD throughout the time they await the scheduling of their adjustment of status interview.
Visa Overstay Marries a Lawful Permanent Resident:
Again, with the exception of the K-1 fiance or crewman visa overstay, such applicants will be eligible to undergo all processing at their local CIS office, but ONLY AFTER THE U.S. SPOUSE BECOMES A U.S. CITIZEN. As to having the I-130 filed on behalf of the alien by their permanent resident spouse (in such a case, with CIS Nebraska, since no accompanying adjustment of status application can be filed at this time) generally speaking, no real benefit comes to the alien, even after the petition is approved. That is because there is an approximate 6 year wait for a visa in the Family Second Preference (2A) category (as opposed to immediate visa availability for spouses of citizens). There will be some exceptional cases, however, where a permanent resident will want to file an I-130 petition for their alien spouse, particularly in cases where that permanent resident may have problems becoming a U.S. citizen for one reason or another.
Alien Enters Without a Visa and Marries Either a U.S. citizen or Lawful Permanent Resident:
Unless they are grandfathered in under Section 245(i) (where any family or employment based immigration petition was filed on their behalf prior to 4/30/01 – even petitions filed by other relatives), the alien will have no chance to undergo adjustment of status processing in the U.S. If they are grandfathered in, it is as if they are merely visa overstays, and the answers to the 2 questions above apply.
Alien Enters Under an Assumed Name and Marries a U.S. citizen or an Immigrant Who Will Become a U.S. citizen:
Two words to start with: Be Careful. Although the alien is eligible to have his application reviewed and processed in the U.S., no approval will be issued unless a “waiver of inadmissibility” is granted. That is because the alien will essentially have to receive a pardon from CIS for their misdeed of misrepresenting themselves upon entering the U.S., and such a pardon, or waiver, is only granted after it is demonstrated that their U.S. citizen spouse (and children) will suffer extraordinary and extreme hardships in the event the applicant is forced to return to their home country. In a nutshell, this standard is very difficult to meet, and more often than not, cases are denied (although there is at least one level of appeal available, including before an immigration judge in removal proceedings).
The discussion above assumes the applicant’s marriage is bona fide, and not just for the purpose of obtaining immigration benefits. Other factors/issues that can affect the outcome of an applicant’s case include an applicant’s criminal history, the existence of a previous immigration filing or record for the applicant, or the fact that the petitioning U.S. spouse obtained their own immigration status by way of a previous marriage to a U.S. citizen.
Although representation by an attorney is not required in all cases, it is recommended that individuals residing in the U.S. without status at least consult with an attorney prior to commencing a procedure with the CIS, a procedure that is sure to have a major impact on their present and future life in the U.S.
PUBLISHED August 8, 2003 – “IMMIGRATION LAW FORUM”
Copyright © 2003-2008, By Law Offices of Richard Hanus, Chicago, Illinois