When determining how to best help your spouse or potential spouse obtain a Green Card, we must first determine your current immigration status; whether you are currently married and where your spouse or potential spouse is currently residing.
I am engaged to be married and my partner is currently living abroad.
The Fiancée Visa is available if the petitioner is a United States Citizen, you and your Fiancée intend to marry within 90 days of your Fiancée being admitted into the United States on a Fiancée visa known as a K-1 nonimmigrant visa; you are both legally free to marry and both you and your Fiancée met each other in person at least once within the past 2 years before the filing of the petition.
Please note that this 2-year meeting requirement can be waived if it violates a strict and long-established custom of your Fiancée’s foreign culture or will result in extreme hardship to you the United States Citizen petitioner.
As mentioned, this process is only available to a United States Citizen petitioner and not a Legal Permanent Resident.
What is the application process?
The process begins with you the petitioner filing the form I-129F with the United States Citizenship and Immigration Service, (USCIS) providing evidence such as correspondence between you and your Fiancée; photos of you and your Fiancée and written statements from friends and family that know about your relationship establishing that you have met each other and that your relationship is real. Furthermore, it is recommended to attempt to establish wedding plans where you can also provide wedding invitations and reservations for venues for the wedding after your spouse arrives in the United States.
Once USCIS approves the I-129F, the approval notice is sent to the Department of State, National Visa Center, (NVC) where the NVC will send the approval to the Embassy or consulate where your fiancée lives where you will apply for the K-1 visa. After you apply for the visa, an interview for your Fiancée will be scheduled where the consular officer determines whether your Fiancée qualifies for the K-1 visa by confirming your Fiancée meets eligibility requirements and confirming that there is no past conduct that may disqualify your Fiancée from the K-1 visa. In the event that there is past conduct that disqualifies your Fiancée from the K-1 visa, understand that there may be waivers available to waive the past conduct allowing for approval of the K-1 visa. Note that although the K-1 visa is technically a non-immigrant visa, waivers applicable to Green Card cases would also apply to the Fiancée based case which if approved will allow approval of a K-1 visa. A discussion of potential conduct that may lead to disqualification from Immigration Benefits including corresponding waivers and the application process can be viewed by clicking here. Once approved, your Fiancée will be granted the K-1 visa for entry into the United States.
Once issued the visa, your Fiancée will travel to the United States where a Customs and Border Protection officer, (CBP) will inspect your fiancée and determine whether to allow entry into the United States. Note that having the visa does not guarantee entry and a CBP officer has final say regarding entry of your Fiancée.
After entry, you and your Fiancée have 90 days to marry. After marriage, you may then apply for a Green Card for your new Spouse by filing form I-485 with USCIS. After the filing of from I-485, there will be an interview where you and your Spouse will appear before a USCIS officer for the officer to determine that the relationship is real and to screen for other potential issues that can disqualify your Spouse from the Green Card.
Once approved if you and your Spouse were married for less than two years, your Spouse will be granted a two year conditional Green Card which will require a subsequent filing of form I-751 to remove the conditions to obtain a full ten year Green Card. Note that the conditional Green Card grants the same rights and privileges as the 10 year Green Card except that the expiration of the conditional Green Card is within a shorter period and involves a more involved renewal process. Please review our discussion on conditional Green Cards including the renewal process by clicking here.
Can any family be included with my Fiancée’s case?
Yes, any unmarried child under 21 years of age can accompany the Fiancée beneficiary into the United States. The child would be granted a K-2 Visa to enter the United States and once the Fiancée beneficiary marries, the child can apply for the Green Card at the same time or after the Fiancée beneficiary applies for the Green Card.
What if I don’t marry my Fiancée within the 90 days?
If the marriage does not happen within 90 days of the Fiancée beneficiary’s entry into the United States, the Fiancée beneficiary falls into unlawful status and is subject to removal from the United States if the Fiancée beneficiary does not depart immediately after the 90th day.
However, in some jurisdictions within the United States, some USCIS offices may allow for the Adjustment of Status process if the marriage happens shortly after the 90th day. It may also be possible to proceed with the Adjustment of Status process if the Fiancée petitioner files a new spousal based petition, form I-130 if the marriage happens after the 90th day. Keep in mind that under these two scenarios, it is not guaranteed that USCIS will approve the Adjustment of Status Application because the law is unclear whether Adjustment of Status is allowed under either of these scenarios and is subject to the interpretation of the law by the local USCIS office adjudicating the application. As a result, it is important to consult with an experienced Immigration Attorney to determine if Adjustment of Status is possible after an untimely marriage.
Another option if the marriage occurs after the 90th day is to file the I-130 petition and proceed with consular processing. This option if required is clearly allowed by law subject to the requirements of having to prove that the marriage is real and that the beneficiary is not subject to any bars disqualifying the beneficiary from obtaining the Green Card. We will further discuss Consular Processing later in this article.
Always remember that the best option is to marry within the 90 days to have the best or at least the easiest path in obtaining the Green Card.
What are my options if I am married and my spouse is currently living abroad?
Consular Processing/Immigrant Visa Proess
If you are already married and your Spouse is residing abroad then you will have to apply for an Immigrant Visa through Consular Processing. This process will require your Spouse to attend an interview before a Consular officer at a Consulate or Embassy located in the Country of your spouse’s residence. After the interview and approval of the Immigrant Visa, entry on the Visa will make the Beneficiary a Legal Permanent Resident. A comprehensive discussion about Consular Processing can be reviewed by clicking here.
Don’t forget about potential bars based on past conduct by the beneficiary which could disqualify the beneficiary from the Green Card. Again, we invite you to review our discussion about potential bars to the Green Card and corresponding waivers to those bars including the application process by clicking here.
What are my options if I am married and my Spouse is currently living within the United States?
You will have two potential options to apply for the Green Card if your Spouse is currently living within the United States.
Adjustment of Status
If your spouse qualifies, your Spouse may qualify for the Adjustment of Status Process allowing for application of the Green Card within the United States. Keep in mind that not all beneficiary spouses will qualify for this process therefore, we invite you to review our comprehensive discussion about the Adjustment of Status process including eligibility requirements by clicking here.
Consular Processing/Immigrant Visa Process
If your Spouse does not qualify for the Adjustment of Status Process, your Spouse could still potentially obtain a Green Card by applying through Consular Processing. The only issue here is that eventually your Spouse will have to depart the United States to attend the consular interview from a United States Consulate or Embassy located at your spouse’s country of origin. We again invite you to review our comprehensive discussion detailing the process by clicking here.
Can any family be included with my Spouse’s case?
Yes, Either Adjustment of Status or Consular Processing will allow any unmarried child under 21 years of age can accompany the beneficiary into the United States, The child can join in the parent’s application or apply later after the parent becomes a Legal Permanent Resident.
Any other potential problems to be aware of?
Always keep in mind that certain past conduct from your spouse can lead to a bar disqualifying your spouse from being approved for a Green Card. Some common types of past conduct that can disqualify your spouse include:
- Criminal convictions including crimes identified as crimes involving moral turpitude, aggravated felonies or controlled substance related violations which can create indefinite bars.
- Living in the United States without status for a period of six months or more where your Spouse departs the United States will create either a three- or ten-year bar.
- Marrying within 90 days of your spouse’s entry into the United States where your spouse is found to have misrepresented her/his intention to visit the United States temporarily because your spouse actually intended to enter the United States to marry and apply for the Green Card will create an indefinite bar.
Although facing a Green Card bar should always be concerning, remember that many of these bars have corresponding waivers that can waive the bar allowing for the Green Card to be approved. We again invite you to review our discussion on potential Green Card bars and corresponding waivers by clicking here.
Many times, because of the confusing Immigration Laws and various exceptions and waivers a case that may not seem possible may be very possible. That is why it’s important for you consult with one of our experienced Immigration Attorneys to guide you to bring your family together to live in the United States.
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