By Jim Nolan | May 17, 2010
A NY Times article on May 14, 2010, describes a new problem for U.S. citizens (USC’s) who marry a foreign person and try to get his or her “green card” in the U.S. (foreign spouse & for simplicity in this blog I will use “her” for foreign spouse) I would like to explain the article and mention some other points that the article didn’t cover, but are also important.
The problem we are discussing does not come up in every situation where a USC is marrying a foreign spouse. To save time I would like to list the situations it does not apply to and if you are in one of these situations you don’t have to worry about this problem:
- USC marries foreign spouse who is already in the U.S. on another visa, such as H-1B, L-1A, F-1, other types of visa
- USC marries foreign spouse who is already in the U.S. on J-1 visa and foreign spouse is not subject to the 2 year home residency requirement or, if they are subject to it, has already received a waiver.
- USC marries foreign spouse who is already in the U.S. on a tourist visa, not including the visa waiver program (VWP).
- “Green card” holder marries foreign spouse. This is a totally separate GC category and has other problems.
The problem comes up in the following situation: A USC wants to marry a foreign fiancé who is not living in the U.S. Often they meet on Internet sites. The USC wants the foreign fiancé come to the U.S. as soon as possible, to get married, then get her a “green card” (GC) so she can live legally in the U.S., work, and travel freely. There are two separate, but related problems. First, is how to get the foreign fiancé into the U.S. for the wedding and the second is how to get foreign spouse a GC.
Foreign fiancés who are citizens of countries that can use the Visa Waiver Program (VWP) can come to the U.S. for up to 90 days with no additional steps. Foreign fiancés who are citizens of other countries will first need to get a tourist visa (B-2) from the U.S. Embassy or Consulate in their home country before coming to the U.S. Getting this visa can be quite challenging, but is not part of this problem.
The first problem is that people aren’t supposed to come to the U.S. on the VWP with the intent to get married to a USC , stay and apply for a GC. There are other procedures they are supposed to use and I’ll discuss them later in this blog. If the Immigration Officer at the airport believes the foreign fiancé is coming to marry a USC and apply for a GC, they will not let her into the U.S. and put her on the next plane back to her home country.
However, it is OK for a foreign fiancé to come to the U.S. on the VWP to meet her fiancé, discuss their future wedding with the intent she will return to her home country get ready for the upcoming wedding.
Finally, it is also OK for the foreign fiancé to come to the U.S. on the VWP and then change her mind after being in the U.S., get married, and apply for a GC.
While perfectly legal, this “changing mind” situation is vague and, if the Immigration officer at the GC interview doesn’t believe it, can result in spouse’s GC being denied and her being forced to leave the U.S. for up to 5 years.
The most important factor to the Immigration officer at the GC interview to judge if there was a “change of mind” is how long after the foreign fiancé came into the U.S. did she and her USC husband marry. If they marry within 1 month of her entry Immigration presumes she lied when she came to the U.S. and will probably deny her GC. If they marry within 1 to 2 months the Immigration officer has no presumption and will review the situation carefully. If they marry after 2 months the officer will presume she changed her mind. Therefore, it is very important that the couple marry more than 2 months after the fiancé comes to the U.S.
However, the fiancé’s time in the U.S. on the VWP is only 3 months. If she doesn’t get married and file for her GC before her 3 months expires she will be in illegal status until she does file for her GC.
This leads to the problem in the NY Times article. In the past immigration lawyers didn’t worry if the foreign spouse’s 90 days expired before she filed for her GC. While Immigration always had the option to deny her GC because of her illegal status they very rarely did.
This has now changed. What the article in the NY times indicates is that Immigration is much more likely to deny a foreign spouse’s if they file for her GC after her 90 day stay expires. In the article, the couple did file before the 90 days expired, but forgot to include an important form in the filing. Forgetting the form meant that the case was not properly filed and didn’t stop the foreign spouse’s illegal status from starting. They didn’t find out about this mistake until too late but quickly re-filed on the suggestion of an Immigration officer. However, this was not enough to protect from the foreign spouse from being dragged out of his house in handcuffs and being held in Immigration jail for 10 days! This is why it is important to correctly file all the important documents before the 90 days expire and I have listed them here on my blog.
The key points of this information are:
- If the foreign fiancé comes to the U.S. on the VWP to discuss marriage with her USC fiancé she must intend to leave the U.S. and then get married later. If while in the U.S. she changes her mind and gets married in the U.S. it is extremely important that she get married to the USC and files the request for her GC within 2 to 3 months after she arrives, not any sooner or later. Filing too early looks like she lied when she came into the U.S. and delaying the filing even a few days after her 90 period expires leaves her at the mercy of the Immigration officer and, according the NY Times article, they are not showing much mercy anymore.
- If the U.S. citizen and his foreign fiancé plan to get married and it is only a question of when she should not come in on the VWP and they should take other routes I will explain below.
If the couple plans to marry they have two options to avoid the problems I discussed above.
- First, if they have met within last 2 years the USC can apply for a fiancé visa (K-1) . The problem is that it takes at least 6 to 9 months before the foreign fiancé can get the visa and come and marry. Once she gets the visa at the U.S. Embassy in her home country and arrives in the U.S. she has to get married within 90 days of arrival and then file for a GC interview in the U.S. If the couple has never met or not met within the last 2 years the foreign fiancé can’t get a K-1 visa. Skype video conferencing doesn’t count!
- Second, the USC fiancé can go to his foreign fiancé home country and get married there. He would then return by himself and apply for a K-3 visa for his wife . Once his foreign spouse gets her K-3 visa stamp at the U.S. Embassy in her home country and arrives in the U.S. her husband has to file for a GC interview in the U.S. The problem is that it takes at least 9 to 12 months before the foreign spouse can get the visa and come to the U.S. to live with her husband.
Please understand at the GC interview there are two questions which will come up and they are not involved in the problems I discussed above. The two issues are:
- Did the USC and the foreign spouse marry for “love” or for the purpose of getting the foreign spouse a GC; and
- Will the foreign spouse be on welfare.
You should discuss how to prepare for these problems with an immigration attorney if the USC has not know the foreign spouse very long before getting married or if his income for the last year is below the poverty line of about $20,000 per year.
I am sorry for the trouble, but I hope this avoids the fate of the poor person in the Times article!