Here on the bucksfamilylawyers.com blog, we post a great many perspectives related to the dissolution of marriage. This time, I wanted to share an interesting article I read about people coming together in marriage for the purposes of immigration, “For Better or Worse? Complexities of Marriage-Based Immigration,” published in the November issue of the American Bar Association’s Family Advocate Magazine. It examines what happens when a U.S. citizen desires to marry a foreign national.
Immigration through marriage is complex, with frequent adjustments to the law. While the details may change, the general process remains consistent. The article discusses the three ways to initiate a union with someone who is not a U.S. citizen: fiancé visa, consular processing, and adjustment of status.
- Fiancé Visa
- Consular Processing
- Adjustment of Status
A U.S. citizen can bring a fiancé to the U.S. on a K-1 visa. This requires the couple to marry within 90 days. Since the intent to marry is clear, the couple is less likely to be questioned about motives, such as in the case where an immigrant enters on a tourist visa and then marries. The U.S. citizen does not have to file an I-130 form, which is required by the two approaches below. But he or she does have to file a Form I-129F, which moves the case to visa processing. Once married, the immigrant may file for an adjustment of status and start the application for employment authorization and travel permission. If all is approved, this will result in a green card or permanent resident status.
A U.S. citizen can request that a foreign spouse enters the U.S. via an I-130 petition. The visa is processed at the U.S. consulate in the foreign national’s home country and requires the immigrant undergo a medical exam by a designated physician. One benefit of this approach is that the applicant maintains his/her ability to work and travel, which is not the case for other approaches, such as adjustment of status.
A couple may apply to adjust their status after entering the U.S. lawfully on a nonimmigrant visa. This is commonly used in situations where a foreigner enters on a travel visa and then marries a U.S. citizen. U.S. Citizenship and Immigration Services (USCIS) may question the foreigner’s intent and there may be additional scrutiny during the green card interview. If visa fraud or willful misrepresentation is found, the couple must file an additional form asking the government for forgiveness due to extreme hardship.
In all cases, the burden of proof is on the couple to establish that their marriage is in good faith. They may do this through documented evidence: comingled finances, joint tax returns, insurance records where the spouse is the beneficiary, wedding pictures, and affidavits from friends and relatives. They also must attest to this in an interview with the USCIS. Interviews may be done with the couple together or individually, and can be quite in-depth, asking questions about daily routines, work schedules, and even hobbies. At the conclusion, the officer will ether grant a two-year conditional resident card or a 10-year permanent resident card (which may be renewed).
An affidavit of support is required in all cases. U.S. citizens must show the ability to support a foreign spouse, with a household income that is at least 125% above the poverty rate. In the case of divorce, the foreign ex-spouse can sue to continue to obtain this support. Finally, there are protections under the Violence Against Women Act for spouses who may be victims of battery or cruelty in their marriage.
If you are need advice from a leading Bucks County family law attorney, we are here. Contact Williams Family Law at 215-340-2207, or email firstname.lastname@example.org.