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New problems for U.S. citizens who marry a foreign person

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:

 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 couple plans to marry they have two options to avoid the problems I discussed above.

 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:

 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!

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Topics: Family, Practical Immigration Tips | 11 Comments »

11 Responses to “New problems for U.S. citizens who marry a foreign person”

  1. Tweets that mention New problems for U.S. citizens who marry a foreign person | James Nolan Law Office Blog -- Topsy.com Says:
    May 18th, 2010 at 4:00 am

    [...] This post was mentioned on Twitter by Jim Nolan. Jim Nolan said: Warning for U.S. citizen who wants to marry foreign person living overseas. Need to be more careful. See my blog at http://bit.ly/daZdSE [...]

  2. Wholesale sunglasses Says:
    June 4th, 2010 at 2:28 pm

    One again, your articles is very good.thank you!very much.

  3. Lauren Says:
    June 29th, 2010 at 8:59 am

    Hello,
    I have a question for you. I am a US citizen and my husband an Israeli citizen. We met in Israel and dated there for eight months. We were married in 2009 in the USA. He came on his 10 year toursit visa. After the wedding, he went back to Israel and I followed a few weeks after. We have lived in Israel since we’ve been married, and plan to still for a few more years. When we go to apply for his US citizenship, will we have problems?

  4. Jim Nolan Says:
    July 18th, 2010 at 11:19 pm

    Dear Lauren,

    Thank you for your comment. Your husband may have trouble coming into the U.S. on a tourist visa as the spouse of a U.S. citizen. You could apply for his GC while you are in Israel.

    I would suggest you register for our next free 15 minute telephone consultation on Sept. 9th (sorry,we’re off in August). I should be able to get an idea of what type of visa would work and give a quote OR should be able to help answer your questions. If you would like to do that please click http://www.genbook.com/bookings/slot/reservation/30012063?bookingSourceId=1000.

    Good luck!

  5. Forrest Says:
    August 29th, 2010 at 3:57 am

    So, I am currently volunteering in the Philippines and I think I have met the one. Is it easier to get married in the Philippines and then bring her with me to the US or is it easier to file for the K-1 visa?

    Thank you

  6. Jim Nolan Says:
    August 30th, 2010 at 8:39 pm

    Dear Forrest,

    Thanks for your comment. Your question is a little too complicated to answer via e-mail. I would suggest you sign up for my free consultation by clicking on the link below.

  7. Meghan H Says:
    September 16th, 2010 at 6:54 pm

    I am going to Israel to visit my fiance, I was told I can only stay for 3 months. If we get married while I am there can that time frame be extended or what will I have to do?

  8. Jim Nolan Says:
    September 20th, 2010 at 6:15 pm

    Dear Meghan,

    I don’t know what you can do to stay in Israel longer than 3 months because that involves Israelie law. If you want to try to bring your fiance back to the U.S. you have to think about how to do that. This is rather complicated and I would suggest you sign up for our next free telephone consultation on October 14th.

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    July 19th, 2011 at 3:25 pm

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  10. jerry shartzer Says:
    August 17th, 2011 at 7:07 pm

    I am planning a trip to the Philippines in Nov. of this yr. I have a fiance there for 22 months and I want to marry here there then eventually bring her back here to live. Can I take care of all the necessary processes while living there with her? Also, I will be self-employed living there but if I need a sponsor to satisfy the financial requirement I do have several sponsors.

  11. Aline Says:
    September 11th, 2011 at 10:28 pm

    i know this is an old post but i do have one question.. i’m 18, from brazil, went on an exchange program in 2010 to america, thats where i met my boyfriend. now i’m back to brazil, in college but he wants to marry me so i can move to texas with him… the thing is hes only 16, isn’t impossible for he to get married at such young age especially to an foreign person?
    thank you so much this article was very helpful!

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