4 Steps for Marriage Based Immigration Green Card Cases
Understandably, many people don't realize that when, where, and even how they get married can affect the foreign spouse's eligibility to receive green card. One of the important matters to consider is timing. As they say, sometimes, "timing is everything."
A married couple came to our office for consultation. Before getting married, the couple was in a long-distance relationship. The US citizen wife lived in San Diego and her foreign national husband was from Mexico. They both traveled back and forth for about one year before getting married. The husband from Mexico used his nonimmigrant, temporary visitor visa to travel back and forth between Mexico and San Diego. Using the visitor visa to see his wife (his girlfriend at the time) was not a problem during the courtship. However, the last time he came to San Diego, the couple decided to get married. Call it romantic, spontaneity, crazy-in-love, the day he entered San Diego, the couple went to a wedding chapel and tied the knot. What is wrong with this scenario, you ask? Well, there is what's called visitor's intent when people come to the U.S. for a temporary visit.
When a visitor enters the U.S. with a visitor visa, the visitor is agreeing to enter the U.S. with a nonimmigrant intent. Essentially, the visitor is promising the U.S. government that he/she will enter the U.S. for a temporary period and that he/she has no intent to permanently immigrate to the U.S. If the visitor had such intent for permanent immigration, then he/she cannot enter the U.S. with a visitor visa. The correct procedure is to obtain an immigrant visa and enter as an immigrant.
Thus, when the husband in our case came to San Diego and got married to a U.S. citizen wife on the same day that he entered the U.S. as a visitor, the U.S. government may presume that he had a pre-conceived intent to immigrate to the U.S. This would be a problem because entering as a visitor, he must not have an intent to immigrate to the U.S. When the couple now applies for the immigrant petition and the green card for the husband, the USCIS officer will question whether or not he already had a pre-conceived intent to immigrate to the U.S. since he married a U.S. citizen on the same day that he entered as a visitor AND stayed in the U.S. for a prolonged period of time. Generally, the visitor is allowed to stay in the U.S. for a period of three to six months. In this case, the husband had already stayed in the U.S. for almost 10 months. This can complicate this case and jeopardize his eligibility to receive the green card in the U.S. He may have to leave the U.S. and go back to Mexico and come back in with an immigrant visa. This may take months, sometimes, years and the couple may be forced to separate during this process.
In order to avoid these types of issues, here are 4 steps for marriage based immigration green card cases:
1. Get legal consultation first: Don't wait until you are already married and your foreign spouse has overstayed his/her validity period in the U.S. to get legal help. Consult with an experienced immigration attorney as soon as your relationship develops into something serious and you are discussing marriage in the near future.
2. Decide where to process the case: Depending on your specific situation, you and your attorney can decide where it would be best to process your case. It might be better to process your case while your spouse is still in his/her home country. In the alternative, it might be better to process the case once your spouse enters the U.S.
3. Get married: Get married after you decide where you want to process your case, whether in the U.S. or in the foreign country where your spouse is from. Your immigration attorney can give you a guideline about the processing times in each scenario.
4. Prepare and submit documents: After the above three steps have been taken, you can start gathering the documents needed to process your case. Your immigration attorney can, then, prepare and submit the requisite documents with the correct government agencies depending on the location you choose to process your case.
After 4-10 months, depending on where you process your case, your foreign spouse will receive a green card or an immigrant visa to enter the U.S. as an immigrant. Of course, this is a general guideline and there are exceptions. The couple that was described above? Their case was eventually approved in the U.S. But it took additional steps and additional time to prove that the husband did not have a pre-conceived intent to immigrate to the U.S. when he entered with a visitor visa. Follow the 4 steps to here to avoid unnecessary difficulties and delays.
We understand that every case is different and it may not be possible for you to follow these steps. That is why we are experts at navigating the complexities of U.S. immigration law.
Contact our office today for a free individualized legal consultation to meet your specific needs!