US Marriage and Family Immigration Visas
Marriage Visas: Options for US Citizens, Green Card Holders and Childrens
New York Immigration lawyer Alena Shautsova helps families to unite and stay together in the USA. The US Immigration process can be lengthy, costly, and frustrating. There are options that are available to US citizens only, and there are some that are available to green card holders only. Choosing the right path is crucial to accomplish your Immigration goals.
If Your Spouse is a US citizen
Let’s first talk about options available to those married to US citizens. These are the options for those US citizens, whose partners are overseas.
A US citizen, unlike a green card holder, may invite his/her fiancé (a person he/she is not married yet) on a fiancé visa; may get married to the person overseas and apply for an immediate relative visa and go through what is known as consular processing. Each option has its own pros and cons. If you have to choose between a fiancé K1 visa and marriage visa, consider these points below:
K1 Fiancé Visa
A fiancé visa or K1 visa option will be good for those who cannot or have not decided to marry immediately. There are its own qualifications for the fiancé petition (form I-129F that should be submitted to USCIS by the US citizens on behalf of the non-citizen), the main of which would be that the petitioner (the US citizen) should meet the fiancé in person within the 2 years prior to the petition to be submitted and that the couple has to have the intention to get married within 90 days of the fiancé’s arrival. The drawbacks of the K1 visa are that the process may not be faster than the one for an immediate relative visa (contrary to popular belief) and that upon arrival, the couple has to meet tight deadlines, and after marriage, the non-citizen has to submit her/his application for adjustment of status before he/she can become a green cardholder. Coupled with the fact that the marriage-based green card holder is likely to receive only a conditional residence when files for the adjustment of status after K1 visa, and then will have to file for removal of the condition on the green card, the fiancé visa process means the spouses will have to file various paperwork with the US Immigration authorities three times before the non-citizen can file for the US citizenship… There is one big plus to the fiancé visa, but it is relevant only for those who have aging out non-citizen children: a fiancé visa holder can bring to the US his/her children-dependent, those who are under 21 years of age. When a couple marries first, only children who were under 18 years of age before the marriage with the US citizen, will be able to be sponsored by the US citizen as his/her step-children.
Immediate Relative Visa Option
Couples that can get married overseas, may choose an immediate relative visa option. The main qualification here would be that the marriage has to be recognized as “legally valid” in the place where it took place; proxy marriages are strongly disfavored. After the marriage, a US citizen can start the “sponsorship” process by submitting an immediate relative petition, a form I 130 with USCIS, and attaching proof of bona fide marriage (evidence of the marriage being real), and form I 130A. Once the petition is approved, the approval will be transferred to the National Visa Center (NVC), and the NVC will coordinate the collection of the documents, an affidavit of support, and payment of the Immigrant visa fees for the next step: an interview for an immediate relative that would take at a consular where the non-citizen is residing. The drawback of the process is that it may take a little bit longer due to the NVC processing; the non-citizen will be subject to the public charge test at the time of the visa interview; and if there are children involved, the citizen will have to sponsor each member of the family separately, paying separate fees for each petition.
Now, if the non-citizen’s spouse is in the US, he/she may file for adjustment of status after the marriage. It may be possible if the non-citizen is not inadmissible, and can prove that he/she entered the US with inspection or was paroled into the US (has “legal” entry.) After filing the paperwork, the couple will have to appear for an immigration interview. Read more about the interview here. If the couple is suspected to have a fraudulent marriage, the couple will be called for a second interview, which is called Stokes interview in New York. It is much more lengthy and detailed than the first interview. The children of the couple are rarely interviewed but may be invited to an interview as well. After the interview, if everything goes well, the non-citizen usually receives a “green card”, a permanent resident card via mail within a couple of weeks from the interview.
Options For Spouses of Green Card Holders
If a spouse is waiting to become a US citizen, it is still possible to sponsor the non-citizen. When the non-citizen is overseas, a green card holder may just like a US citizen, submit I 130 form for the spouse. But, a K1 fiancé visa is not available for the green card holders. Also, when filing I 130, a green card holder may file one petition for the spouse and minor children, unlike when a petitioner is a US citizen and is sponsoring a family: in which case separate petitions have to be submitted for each family member. The petition processing times for spouses of green card holders are slightly longer than for those of US citizens, even though the priority date is almost current in recent times. A priority date is a date determining how fast a line for immigrant visas of spouses of green card holders is moving: immediate relatives (spouses of US citizens) do not have priority dates at all, they face only processing times. Priority dates are determined by the Visa Bulletin. The consular processing for a spouse of a green card holder is going to be the same as for the spouse of a US citizen.
Finally, if the spouse of a green card holder is in the US, he/she may be able to file for adjustment of status after marriage, but only if can prove both “legal” entry and that he/she has maintained lawful nonimmigrant status prior to submitting his/her adjustment of status application; plus the visa number (priority date) has to be current at the time of the filing for adjustment. Asylum pending status, adjustment pending status do not constitute lawful non-immigrant status. As such, many with lapsed status have to wait for the spouse to become a US citizen, at which time, the “illegal” presence, lapsed status, absence of lawful nonimmigrant status, and even unauthorized employment will be automatically forgiven to the beneficiary of an immediate relative petition.
This is a basic explanation for the general options available to the spouses of the US citizens and LPR-s (green card holders). The process may be more complicated if the non-citizen is in removal proceedings, requires waivers of inadmissibility, or there are allegations of marriage fraud in the file. If you need help determining the best options for your case, our NYC Immigration lawyer will be here to help. Please call to reserve a confidential consultation at 917-885-2261 or booking your consultation here.
Government Resources:
- How Do I Help My Fiance Become a Permanent Resident?
- Guidance Regarding Surviving Spouses of Deceased U.S. Citizens & Their Children – USCIS (12-02-09)
- USCIS Memorandum on I 751 filed prior to termination of marriage (USCIS)
- Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions (USCIS)
- Revised Guidance Concerning Adjudication of Certain I-751 Petitions (USCIS)
- Genco Opinion 90-3, Puleo, “Interpreting the definition of son/daughter and qualifying marriage under the Immigration Marriage Fraud Amendments” (May 23, 1989)*
- Genco Opinion 89-67, McDermott, “Marriage Fraud: Termination of Conditional Permanent Resident Status without Notice to Alien” (Oct. 19, 1989)*
- Genco Opinion, Cook (Jan. 9, 1990)*
- Genco Opinion 90-7, O’Reilly, “Relating to Conditional Residents Pursuing 245A Applications” (Feb. 15, 1990)
- Genco Opinion, Cook CO 216-P (June 21, 1990)*
- Genco Opinion 91-7, Schroeder, “Whether Present Viability of a Marriage is a Factor in Adjudicating an I-751” (Jan. 25, 1991)*
- Genco Opinion 91-76, Puleo, “Effect of Amendments to Waivers of the Section 216(c) Joint Petition Requirement” (Nov. 29, 1991)*
- Genco Opinion, Rees CO-216 (Dec. 3, 1991)*
- Genco Opinion 95-8, Weinig, “Common Law Marriage and Conditional Permanent Residence” (Aug. 26, 1995)*
- INS Memorandum, “Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses of Children of U.S. Citizens or Lawful Permanent Residents” (Apr. 16, 1996)*
- INS Memorandum, “Legal Opinion: Status of a conditional permanent resident after denial of the I-751 during pendency of review by EOIR” (Aug. 6, 1996)*
- Genco Opinion 96-14, Martin, “Effect of State Court Judgment on Section 216(c)(4) ‘good faith’ waiver applications” (Nov. 29, 1996)*
- INS Memorandum, “Status of Conditional Residence in Proceedings” (Oct. 9, 1997)*
- INS Memorandum, “’Extreme Hardship’ and Documentary Requirements Involving Battered Spouses and Children” (HQ 90/15-P; HQ 70/8-P) (Oct. 16, 1998)*
- INS Memorandum, “Removal of Conditional Resident Status if Conditional Resident is the Spouse of an Individual Serving Abroad in the U.S. Armed Forces as Part of Operation Enduring Freedom” (Jan. 7, 2002); (accessed Feb. 19, 2013).
- INS Memorandum, “Reentry Permits Issued to Conditional Residents with Expired Form I-551, Permanent Resident Card – IFM Update IN02-09” (May 23, 2002)*
- INS Memorandum, “Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage” (Apr. 10, 2003); (accessed Jan. 24, 2013).
- USCIS Memorandum, “Extension of Status for Conditional Residents with Pending Forms I-751, Petition to Remove Conditions on Residence” (Dec. 2, 2003); (accessed Jan. 24, 2013).
- USCIS Memorandum, “Clarification of Classes of Applicants Eligible for Naturalization under Section 319(a) of the Immigration and Nationality Act (INA), as amended by the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386” (Jan. 27, 2005); (accessed Jan. 24, 2013).
- USCIS Memorandum, “Revised Interview Waiver Criteria for Form I-751, Petition to Remove the Conditions on Residence” (June 24, 2005); (accessed Jan. 24, 2013).
- USCIS Memorandum, “Delegation of Authority for I-751, “Petition to Remove Conditions on Residence” (Jan. 30, 2006); (accessed Jan. 24, 2013).
- USCIS Memorandum, “Use of the USCIS Version of the DHS Dry Seal in the Issuance of Alien Documentation, Identification Telecommunication System (ADIT) Stamp as Temporary Evidence of Lawful Permanent Resident Status” (Dec. 10, 2008)*
- USCIS Memorandum, “I-751 Filed Prior to Termination of Marriage” (Apr. 3, 2009); (accessed Jan. 25, 2013).
- USCIS Memorandum, “Interim Guidance for the Issuance of an Alien Documentation, Identification and Telecommunications System (ADIT) Stamp as Temporary Evidence of Lawful Permanent Resident Status” (May 15, 2009)*
- USCIS Memorandum, “Conditional Permanent Residents and Naturalization under Section 319(b) of the Act, Revision to Adjudicator’s Field Manual Chapter 25 (AFM Update AD09-28) (Aug. 4, 2009); (accessed January 24, 2013).
- USCIS Memorandum, “Stand Alone Form I-130 and Jointly Filed Form I-751: Discretionary Procedures for Petitioning Military Members and their Dependents” (Sept. 22, 2009); (accessed Jan. 24, 2013).
- USCIS Memorandum, “Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions” (Oct. 9, 2009); (accessed Jan. 24, 2013).
- USCIS Memorandum, “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens” (Nov. 7, 2011); (accessed Feb. 19, 2013).
- USCIS Memorandum, “Revised Guidance Concerning Adjudication of Certain I-751 Petitions” (Dec. 23, 2012); (accessed Jan. 24, 2013).
US Marriage and Family Immigration Visas
- Adjustment Of Status For K-1 Visa Entrants
- Recapturing Priority Date For An Aged Out Children Of LPR
- How To Help Your Spouse To Get A US Green Card
- Common RFEs In Adjustment Of Status Based On Marriage Cases
- Choices For Abused Spouses
- Filing I-130 Abroad By Military Petitioner
- How To File For Marriage Based Green Card
- Adjustment Options For K-1 Visa Entrants
- How To Pass A Stokes Interview
- K1 for Same Sex Couples (LGBT Fiancé Petition)
- Denial of I 751 Petition to Remove Conditions from Green Card
- Immigration Consequences of Marriage Fraud
- Adjustment Of Status Process: Green Card Based On Marriage
- How to Pass Immigration Marriage Interview
- K-1 Visa Process