Published: August 22, 2013
Marrying a U.S. citizen – it can be the quickest and easiest avenue to a Green Card. Assuming it involves a bona fide, genuine spousal relationship – including between same sex partners – a green card filing premised on a marriage to a U.S. citizen can be the most straight-forward route toward obtaining U.S. resident status.
If the foreign spouse is outside the U.S., their journey to the U.S. usually starts with the filing of an I-130 visa petition, and after approval, immigrant visa processing at their nearest U.S. consular post in their home country. This same process can be facilitated for a foreign fiancé of a U.S. citizen – and without having to actually to first marry – just as long as the parties had met in person within the preceding 2 years. Total processing time for either of these avenues can range from 4 – 12 months, depending on a variety of factors.
If the foreign spouse is in the U.S., the process, in general, can be even quicker and more straight forward. If the foreign national entered with most any type of visa, and regardless of whether they maintained their immigration status or worked in the U.S. without authorization, they will be eligible to undergo all green card processing in the U.S. – also known as “adjustment of status.” The fact that they overstayed their visa term, or work without authorization, will not be bases to render the applicant ineligible, assuming all other requirements have been met.
Even those who entered the U.S. without being inspected by an immigration inspector might sometimes qualify to adjust their status in the U.S. if they are covered under a special immigration law provision called INA 245(i). To qualify for 245(i), an applicant, or their parent, must have in some way been the subject of Family or Employment/Labor based immigration filing 1) prior to January 14, 1998 OR 2) prior to April 30, 2001, but only if the applicant was physically present in the U.S. on December 21, 2000.
For foreign spouses of U.S. citizens who are in the U.S but not eligible to adjust status, the immigration processing story gets a little complicated. That’s because they will be forced to return for the final phase of immigrant visa processing for an interview at a U.S. consular post in their home country. But ahead of that step, the foreign spouse must be approved for a “waiver of inadmissibility”, a legal mechanism where the U.S. citizen spouse is required to prove they will suffer extreme hardship in event their foreign spouse applicant is denied reentry into the U.S. The good news is the determination on the waiver is made prior to the foreign spouse’s return to their home country for interview. The bad news is that the foreign spouse indeed still must return to their home country for interview, and still the outcome of the interview and immigrant visa issuance – albeit with odds on their side – remains uncertain.
For all marriage-based green card applicants – whether adjusting status in the U.S. or undergoing immigrant visa processing at a U.S. consular post abroad – a myriad of other issues beyond the sincerity of the marriage can impact the outcome of the application. An applicant’s previous deportation/removal proceedings, visa fraud charge, misrepresentation to a government official, criminal conviction, false claim to U.S. citizenship, or mistaken U.S. voter registration/voting are all among the issues which stand to affect the outcome of any case. Undue delays
PUBLISHED August 22, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois