When a U.S. citizen and foreign-born person decide to marry, they often assume that U.S. citizenship will follow almost automatically. That's far from the truth, unfortunately. Let's take, for example, the situation of a foreign student in the U.S. whose boyfriend, a U.S. citizen, has just proposed. The couple plans to get married and settle down in the United States. How long will it take before the immigrant gets U.S. citizenship?
First, let’s get one important thing straight: Marriage to a U.S. citizen makes someone eligible for U.S. lawful permanent residence (a "green card"), not for U.S. citizenship. (At least, not in the short term.) Having a green card for a certain number of years can make the person eligible for U.S. citizenship. But it’s a two-step process, at a minimum. In short, even if the U.S. citizen husband sponsors the immigrant, receiving approval from the U.S. government doesn't turn the immigrant into a U.S. citizen right away.
Below are the steps you will probably have to go through if this situation applies to you, and the typical amount of time each one will take.
NOTE to anyone who isn’t in the exact same situation: Procedures differ for applicants who are living outside the U.S., or who are inside the U.S. after an unlawful entry, or who are marrying a U.S. permanent resident rather than a citizen. See this chart for the various procedural scenarios.
If the immigrant in this example remains married to and living with the U.S. husband for three years from the date of approval for conditional residence, it's finally time to apply for U.S. citizenship (naturalization). The immigrant will need to meet all the eligibility criteria, including being able to speak English and pass an exam covering U.S. history and government.
Someone whose spouse became a U.S. citizen after the immigrant got U.S. residence would have to wait three years from that point to take advantage of the exception, with the result that it might not even help them.
The application for citizenship is made by submitting Form N-400 to USCIS. This part of the process is also a lengthy one. The applicant will have to wait months before being called in for a naturalization interview at a USCIS office, and then after approval, will need to attend a swearing-in (oath) ceremony.
By the way, this three-year rule represents an important exception. Most people must wait five years after getting a green card to apply for U.S. citizenship. But the immigrant will need to have met all of those conditions for the entire three years, namely that they were living with the U.S. citizen spouse the whole time, and that the spouse was a U.S. citizen that whole time. In fact, they must remain married all the way up to the swearing-in ceremony to qualify for the three-year exception.
If the marriage breaks up or the couple stops living together, the immigrant must count a full five years from the date of approval for residence to apply to naturalize. The news about when one qualifies for citizenship is also bad if the marriage ends due to the death of the U.S. spouse, as described in U.S. Citizen Spouse Died: Can Immigrant Still Apply to Naturalize After Three Years?.
There is an exception, however, for marriages that became abusive, where the immigrant must self-petition or complete their application for a green card based on the Violence Against Women Act (VAWA). If certain circumstances are met, the abused immigrant can apply after a mere three years, as described in When VAWA Green Card Holders Can Apply for U.S. Citizenship (Naturalization).
For comprehensive information on the green card application process, see Fiancé and Marriage Visas: A Couple’s Guide to U.S. Immigration. Or, if you have any questions about complicating factors in your case, or wish help with the application process, consult an immigration attorney.
One way to solve the overstay-inadmissibility problem described above is to apply for the green card using a procedure called “adjustment of status.” That means submitting an application for U.S. residence to, and more importantly attending an interview at, an office of U.S. Citizenship and Immigration Services (USCIS), without leaving the United States. The great thing about that is that only applicants who are outside the United States and seeking to return are affected by the unlawful presence ground of inadmissibility; therefore, by adjusting status, you wouldn't need to leave the U.S. for the consular interview that is normally part of the green card application process.
Not everyone is eligible to “adjust status,” unfortunately. Those who aren't would need to apply for a waiver of that inadmissibility if they need to the U.S. and seek to return. But because this article is focused on someone who:
it encompasses the few people whose unlawful presence in the United States does not make a difference in their eligibility to use this U.S.-based adjustment of status procedure.
CAUTION: Anyone reading this who entered the U.S. without permission or inspection, or whose green card eligibility is based on a family or employment relationship that puts them in the “visa preference” category with a “priority date” in a category where a long waiting list has developed, is probably not eligible for adjustment of status. They will have to go the consular interview outside the United States.
The bottom line: Choose to apply via adjustment of status rather than consular processing if you're eligible to do so, and you will not need to file a request for a waiver (most likely using either Form I-601 or I-601A).
For applicants who must leave the U.S. for consular processing, there are two main waiver forms used to request that the U.S. government forgive or overlook their unlawful presence and grant them a marriage-based green card regardless.
The I-601A waiver tends to be the preferred one, because applicants can submit the application and receive an answer from USCIS before departing the United States for their consular interview (and risking that the waiver request gets denied and they're stuck outside for three or ten years, depending on the length of their unlawful stay). But not everyone qualifies to request one, not only because of strict eligibility criteria, but because this particular waiver can be granted by USCIS only if the applicant has no other grounds of inadmissibility that require a separate waiver.
The other possibility is the I-601 waiver, which you would not be able to receive an answer to until you're already in your home country attending your consular interview.
There's nothing automatic about these waivers, and you'll need to do far more than fill out a form. Most notably, you'll need to prove that your U.S. relatives will suffer extreme hardship if you aren't granted the waiver and U.S. residence. Learn more about waivers of inadmissibility and how to apply.
See the Marriage-Based Visas and Green Cards section of Nolo’s website or get the book Fiance and Marriage Visas: A Couple’s Guide to U.S. Immigration, by Ilona Bray (Nolo), which contains comprehensive, easy-to-understand instructions on eligibility and application procedures. And for a personal analysis of your situation and assistance with gathering documents, preparing paperwork, and more, consult an experienced immigration attorney.
]]>Don’t panic, but definitely act quickly, using the tips in this article.
After the departure date on your I-94 passes, your status in the U.S. is unlawful, meaning that if you were, for some reason, encountered by U.S. immigration authorities, you would be placed into removal (deportation) proceedings. But that is not the most likely scenario.
More likely, you will still be able to submit your adjustment of status packet (which is always done by mail, not in person). Assuming the application is based on your marriage to the same person who petitioned for you to receive the K-1 visa, U.S. Citizenship and Immigration Services (USCIS) will accept it for processing.
The key thing to understand at this point is that your proof of having been approved for a K-1 visa can no longer serve as the basis of your application. In its place, your U.S. spouse will now have to fill out an additional form for you, called a visa petition, on Form I-130. What’s more, you will have to pay the fee associated with Form I-130 (which you can find on the relevant page on the USCIS website.)
Once your adjustment of status application is successfully submitted, your status in the United States becomes legal. You should get a receipt notice from USCIS after it accepts your application for processing, normally within several weeks. You can use that receipt notice (Form I-797C) as temporary proof of your right to be in the United States.
If it does happen that you are picked up by Immigration and Customs Enforcement (ICE), this isn’t the end of the world either. You will (unless you fall into a rare exception, such as having a previous deportation on your record), be given a “Notice to Appear” ("NTA") and a date to go to immigration court, for removal proceedings. There, you can present your application for a marriage-based green card to the immigration judge.
The downside of having your case end up in court is that you will probably have to spend thousands of dollars in attorney’s fees. Plus, the judge will be legally bound to give much stricter scrutiny to the bona fides of your marriage than USCIS would have.
Nevertheless, if you can explain what went wrong, and convince the immigration judge that you and your spouse truly intend to establish a life together in the U.S. (and aren’t just committing a fraud to get you a green card), the judge should approve you for the green card at the end of your merits hearing.
If you have any complications in your immigration case, such as an expired I-94, it is best to contact an licensed, competent, and experienced immigration attorney to discuss your options. The attorney can analyze your case, confirm or your ongoing eligibility, gather documents and paperwork, draft legal arguments on your behalf, prepare any witnesses, and if you end up being arrested by ICE, appear with you in immigration court for your hearings.
But your relationship has gotten rocky, and you've stopped living together. Your U.S. citizen spouse is still willing to help you get a green card, but you're both worried that USCIS just think you are committing marriage fraud and deny the green card and maybe punish you both criminally. Should you move forward with this application, and if so, how?
As this article will show, it is possible to get a green card when living apart and having marital difficulties, so long as you have not gone so far as to get a legal separation (possible in some, but not all U.S. states) or actually gotten divorced. Let's look closer at the main legal issues involved, and how to convince U.S. immigration authorities to grant the green card. We'll cover:
The key thing in deciding whether you deserve a marriage-based green card (U.S. lawful permanent residence) is whether, at the “inception” (beginning) of your marriage, you intended to establish a life together; in other words, were entering into a not only legally valid but also factually bona fide marriage.
The USCIS officer is not supposed to judge whether it is a viable, marriage (likely to survive), just whether it is a real marriage as opposed to a fraud. (See I.N.A. Section 204(c).)
Convincing the U.S. Citizenship and Immigration Services (USCIS) officer who personally interviews you will, of course, be more of a challenge than it would be if the two of you were still living together. In fact, USCIS officers across the various U.S. regions vary in their levels of sophistication. Some might, as you fear, take a simple-minded, “marriage ending, deny the green card” approach to your case.
Definitely make the most of your U.S. spouse's willingness to help you, and be sure he accompanies you to the USCIS interview.
The key thing is to NOT lie and pretend that everything is just fine with the marriage. If you get caught in a lie, it can permanently bar you from eligibility for a green card. (Fraud and violations of immigration laws are grounds of inadmissibility.) There’s a high likelihood that you would be caught, by the way, perhaps because either you or your spouse breaks down and admits the truth after enough questioning. (U.S. citizens are notoriously unaccustomed to being interrogated!)
So, you will want to explain the truth of what happened, and provide accurate information about which of you is living where. Prepare plenty of documentation to bring to your interview to show that your marriage was entered into in good faith and for all the right reasons (legally speaking). (See Documents to Bring to Your Marriage-Based Adjustment of Status Interview for details.)
Also think about what documents you can prepare to show that your marriage has hit the rocks for all the reasons that a real marriage hits the rocks, or that you are bothered by and trying to deal with the situation. Affidavits from friends, counselors, and religious leaders with whom either or both of you has discussed the situation or sought help can be good here. A lawyer can help you prepare these, too (they need to be detailed and convincing).
For the reasons set forth above, hiring an immigration attorney to help with your case could make all the difference. With the law on your side and the right preparation, you stand a good chance of succeeding in your application for permanent residence.
]]>There are some circumstances under which U.S. immigration law allows an immigrant to obtain a green card (U.S. lawful permanent residence) even if the U.S. petitioner/sponsor dies before completing the application process. Exactly what the possibilities are, however, depends on:
(Also see I.N.A. § 201(b)(2)(A)(i), I.N.A. § 213(a)(f)(5), I.N.A. § 204(l).)
If you have already started the process of petitioning for your immigrating relative, you would have filed a Petition for Alien Relative, or Form I-130, with U.S. Citizenship and Immigration Services (USCIS). If you were to pass away before doing that, the case would in most cases go nowhere.
But even if this I-130 was approved by USCIS; in other words, after you had gotten a receipt notice back but nothing more, it would in most cases be revoked after your death, if your family member had not yet completed the next phase of the process (filing for a green card either through adjustment of status in the U.S., or consular processing overseas).
Nevertheless, there are exceptions and alternative ways forward, as follows:
We'll discuss these options next.
The widow or widower of a U.S. citizen (and unmarried children under 21) can file for immigrant benefits on the basis of the marriage. The widowed immigrant is eligible to apply for a green card within two years of the spouse's death, if the couple married in good faith (not as a fraud to get the immigrant a green card), they were not legally separated at the time of the death, and the immigrant has not remarried.
The exact procedures for this depend upon whether the U.S. citizen spouse got as far as filing an I-130 petition on the immigrant's behalf before the death. If so, the immigrant can proceed with the green card application, but will need to notify USCIS of the U.S. citizen spouse's death. Then USCIS will, if all eligibility requirements are met, convert the I-130 to an I-360 petition, described below.
If the U.S. citizen did not get as far as filing an I-130 petition, the immigrant will need to file a self-petition on USCIS Form I-360; which, if the immigrant is in the U.S. and eligible to file for adjustment of status, can be done concurrently with the Form I-485 and other adjustment of status paperwork (minus the Form I-864 Affidavit of Support usually required in marriage-based cases but not required of widow(er)s of U.S. citizens; an I-864W would need to be submitted instead).
An immigrant who is overseas, or not eligible to adjust status in the U.S., would use the procedure known as consular processing. They would have to await USCIS approval of the Form I-360 before moving forward.
If filing an I-360, the immigrant will need to include a copy of the couple's marriage certificate, proof of the spouse's U.S. citizenship, and a copy of the death certificate, as well as the filing fee. See Filling Out USCIS Form I-360 Self Petition as a Widow(er) of a U.S. Citizen for details.
Even if the I-130 was already filed, the immigrant must notify USCIS within two years of the spouse's death and include the above documents, except for the petition form and filing fee.
Assuming the immigrating relative is not your spouse, or you're not a U.S. citizen, their best possible remedy upon your death would be to pursue something called "humanitarian reinstatement" of the already-approved I-130. But this is possible only if the immigrant can find a substitute financial sponsor, so it would be worth looking into this matter first.
As part of the green card application, an immigrant's family petitioner must complete Form I-864, Affidavit of Support Under Section 213A of the Act, as well as provide financial documentation, such as pay statements, tax returns, and a letter from an employer.
You might have already filled out this form. If so, you perhaps remember that you had to show that your income/asset levels met at least 125% of the U.S. Poverty Guidelines for the number of people in your household plus the immigrant(s), as shown on Form I-864P. By signing a Form I-864 affidavit, the U.S. sponsor promises to financially support their immigrant relatives in the United States, and demonstrates that the immigrants will not become a burden to the U.S. government.
Financial sponsorship is an important aspect of serving as an immigrant's petitioner. Thus if you die, USCIS would expect your immigrant relative to come up with a substitute sponsor to take on this role, in order for the green card application to continue. (See I.N.A. § 213A(f)(5).) To qualify as a substitute sponsor, the person must be at least 18 years of age, a U.S. citizen or lawful permanent resident, and related to the immigrant as either a spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, or legal guardian.
The substitute sponsor would be required to meet the same income requirements (from the Poverty Guidelines) as the original sponsor, and provide the same types of financial documentation. Further, the substitute sponsor would need to indicate and provide evidence of being related to the immigrant relative.
The substitute sponsor will be financially obligated, if needed, to the immigrant relative until the immigrant becomes a U.S. citizen, dies, or departs the U.S. permanently.
Once your immigrant relative has found a substitute sponsor and that person has completed Form I-864 and provided the needed documentation, the immigrant relative would need to write a letter to USCIS stating a wish to have the case reinstated after it was revoked due to death of the initial sponsor. The letter will need to provide basic information including the prospective immigrant's and deceased U.S. petitioner’s name, and Alien Registration Numbers (A-Numbers) if any, as well as the I-130 receipt number.
Along with the letter, the intending immigrant should attach:
The application for reinstatement should be mailed to the office where your I-130 petition was filed, which will be indicated on the bottom of your I-130 approval notice. USCIS will add the application for reinstatement to your I-130 petition. There is no fee required for this request.
If an immigrant relative's substitute sponsor cannot meet the minimum income requirements, the person might be able to team up with a joint sponsor. The joint sponsor must be at least 18 years of age, living in the U.S., and willing to be jointly liable for the immigrant's financial support.
A joint sponsor, unlike a substitute sponsor, does not have to be related to the immigrant. The joint sponsor must complete Form I-864 as well, provide the same documentation as above, and be able to meet the income requirements per the Poverty Guidelines.
A portion of the Immigration and Nationality Act (I.N.A.) numbered § 204(l) lets would-be immigrating family members of U.S. citizens and permanent residents
204(l) request that their cases go forward even if the I-130 hadn't yet been approved by USCIS (was "pending"). The immigrants would need to show that they were residing in the United States at the time of the death, and continue to do so (though a brief trip won't destroy eligibility).
Details are on the USCIS website, including specific language the family member should use depending on the details of how far along your immigration application was when the death occurred. However, since the agency hasn't created an actual form for this, and sometimes gets it confused with a humanitarian reinstatement request and then denies it (with no appeal), your best bet is truly to hire an attorney.
In order to avoid having to meet the requirements for reinstatement, it might help the immigrant to have more than one petitioner file an I-130 petition on their behalf. For instance, both U.S. citizen parents can petition for their child. This provides a backup petition in case of a petitioner's death. There is no legal barrier to having more than one petition filed for the same foreign national.
Perhaps you have already hired an immigration attorney, in which case that attorney could assist with the consequences of any changes in the case, such as a petitioner's death. If not, this sad complication would be a good reason to bring in an expert attorney, to evaluate the situation, assist with the paperwork, and draft any legal arguments that would help get the case approved.
]]>Will this be a problem if they seek to obtain lawful permanent residence for the foreign national and thus will need to prove the bona fides of the marriage to U.S. Citizenship and Immigration Services (USCIS)? If so, what can you do? Could something like opening a small joint account ease USCIS's suspicions regarding marriage fraud? This article will discuss this issue, and the possibilities for overcoming it.
Proving a real marriage to USCIS can be challenging. Couples need to do everything possible to show a shared life, which normally includes not only a history of dating, gift-giving, family visits, and at some point living together, but shared finances (credit cards, bank accounts, and so on).
It is usually a good idea for married couples to consider what aspects of their life, financial and otherwise, they can join up in order to prove a bona fide marriage to in order to qualify the noncitizen for a green card (lawful permanent residence).
Taking artificial steps, such as opening a small bank account together, could actually hurt your case as much as it helps. It might even make USCIS wonder whether you are taking steps to perpetrate marriage fraud.
Why? Because USCIS will see from the bank statements you provide that only a small percentage of your assets were placed into this account, and probably fairly recently (within the time you knew you were going to submit an adjustment of status/green card application), and that the money is mostly just sitting there (unless the two of you actively use this account).
That’s a definite red flag. USCIS is accustomed to seeing couples attempting marriage fraud do the exact same thing.
Your best bet is to focus on aspects of your life that you are genuinely interested in sharing, and provide evidence of those. See Documents to Bring to Your Marriage-Based Adjustment of Status Interview for suggestions. If you've had children together, that's one of the strongest forms of evidence, though that too is a decision that should not be made merely for the sake of proving your real marriage to the satisfaction of the U.S. government!
If USCIS asks why you haven’t opened a joint bank account or combined your finances in other ways, you can supply the explanation that truly represents your married life.
Also think about quasi-financial things you might share, such as placing the other person on the citizen's health insurance plan, or taking out a shared car loan.
Given that your situation is unusual, you could make your life easier by hiring an experienced immigration attorney to handle your family visa case. The attorney can analyze the facts and strategize the most convincing forms of proof that you're truly getting married with the intention to form a shared life, prepare the immigration paperwork, and monitor the progress toward approval.
On the surface, such a plan sounds sensible; but immigration law and common sense don't always match up, as we'll describe below.
The plan outlined above would amount to a fraudulent use of the Visa Waiver Program, which could ultimately result in the new husband's application for lawful permanent residence (a green card) being denied.
Let's look at this step by step. Say the foreign-born fiancé takes a long plane trip to the U.S., where an officer of Customs and Border Protection (CBP) greets him and asks about his purpose in entering the United States. He says he's going to get married and apply for a green card. The CBP officer informs him that, because the Visa Waiver program is meant only for people coming to the United States for visits of no longer than three months (90 days) for either pleasure or business, and who have no intention of staying in the U.S. permanently, his entry is denied. He would likely have to return to his country on the next plane.
Or let's say he successfully lies to the CBP officer and gains U.S. entry. The couple get married and submit an application for adjustment of status (a green card) to U.S. Citizenship and Immigration Services (USCIS). At the green card interview, the USCIS officer notices that the wedding took place not long after the VWP entry, asks questions, and perhaps ultimately decides that the husband committed fraud upon entry and is therefore inadmissible. He is denied the green card and placed into removal (deportation) proceedings.
In rare cases, and after paying a lot in legal fees, the applicant might qualify for a waiver of the fraud and receive the green card.
To avoid the stain of visa fraud on the immigrant's immigration record (not to mention the expense and time that removal proceedings require) it will be far easier to go the legal route and either apply for a K-1 fiancé visa before the marriage or get married overseas and then apply for an immigrant visa (the equivalent of a green card). See an experienced immigration attorney for a full analysis of your situation.
]]>As this article explains, getting a green card for a new spouse after divorcing the spouse who got you a green card is possible. However, unless the couple is willing to wait a bit before filing, the process might be difficult.
U.S. law is set up so that people who divorce and remarry after getting a green card through marriage are expected to wait at least five years after they got their permanent residence before petitioning for a new spouse to receive the same benefit. (See 8 C.F.R. § 204.2.)
The main exception is for U.S. petitioners whose previous marriage was ended by the death of their U.S. citizen or permanent resident spouse.
All other petitioners who choose not to wait the required five years should be ready to face high levels of suspicion from U.S. immigration officers that their previous marriage was fake (not bona fide). In legal terms, such petitioners will be required to prove by “clear and convincing evidence” that their previous marriage was not entered into just for the green card, possibly with a long-term plan to bring the original spouse into the United States.
If the U.S. citizen chooses to go forward with green card sponsorship without waiting the usual five years, he could try to satisfy the “clear and convincing evidence” requirement by supplementing the evidence already submitted during his own green card case with other documentation—in larger quantity and variety. Again, the point is to prove that he didn't use that U.S. citizen wife as a stepping stone to U.S. entry so that he could turn around and bring in another foreign-born person.
He should also be ready to answer interview questions from U.S. immigration officers in more detail and on matters other than those he had to deal with the first time around. Questions about the length of his marriage to the U.S. petitioner and the circumstances of its termination would be especially relevant. In addition, questions about the relationship with the immigrant now being petitioned prior to his U.S. marriage would also be relevant—because immigration officers would probably suspect that the two both planned all along to get back together as soon as he obtained his immigrant or U.S. citizen status.
If the U.S. citizen husband (continuing with the above example) files an I-130 petition before the five years are up but fails to meet the "clear and convincing evidence" standard to USCIS's satisfaction, the primary consequence would be that he would have to wait until the end of the five-year period before filing a new I-130 petition (which would give rise to much less suspicion).
However, there's another potential problem if the immigrant is by that time present in the United States without legal status. The immigrant could be placed into removal (deportation) proceedings before the U.S. husband gets a chance to refile. In addition, if U.S. immigration officers not only doubt that the husband’s previous marriage was real but also actually conclude that it was fake, this could put him in serious legal trouble.
The assistance of an experienced immigration attorney could significantly improve your preparation for those kinds of questions. The lawyer can analyze red flags in the case and help prepare and gather convincing documentation, and write a cover letter or memo summarizing it all. The lawyer can also represent you before U.S. immigration authorities, whether in an interview or in deportation proceedings in immigration court.
]]>For years the U.S. Congress, as well as U.S. Citizenship and Immigration Services (USCIS) insisted that heterosexual marriages were the only ones that counted for immigration purposes. A law called the "Defense of Marriage Act" or DOMA had defined “marriage” as between a man and a woman, with the result that only heterosexual partners could petition for a green card for their foreign-born spouses.
However, as a result of the U.S. Supreme Court's decision in United States v. Windsor, same-sex foreign spouses of U.S. citizens and permanent residents became eligible to apply for green cards. The Court held that DOMA violated the equal protection guarantee of the U.S. Constitution and that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections.
The bottom line is that any same-sex marriage that is legally recognized in the United States or in the country where it took place counts for U.S. immigration purposes.
In order to successfully get a green card, all applicants must make it through USCIS’s multi-step process. To start matters, the U.S. citizen spouse must fill out a petition on USCIS Form I-130.
Just like a same-sex couple, you’ll have to prove that your marriage is legally valid in the place it occurred. After the Supreme Court’s later decision in Obergefell v. Hodges, all states must recognize same-sex marriages performed anywhere within the United States. Thus, if you and your spouse were married within the U.S., meeting the legal-marriage requirement isn’t a problem. The USCIS also recognizes same-sex marriages that took place outside the United States, as long as the marriage is legally recognized in the country in which it occurred.
However, many countries still don’t recognize same-sex marriage. In some of these countries, travel might be difficult for the foreign spouse, making it particularly difficult to enter into a legally recognized marriage. (It’s important to make sure that you don’t try to get around this problem by getting a tourist visa to enter the U.S.—this could be considered visa fraud, and could result in denial of a green card. See the discussion below about fiancé visas.)
In most circumstances, you can prove legal marriage by presenting a copy of your marriage certificate. Note that USCIS usually requires that you have a certificate created by an official governmental agency rather than a church or other nongovernmental entity. If you’re married abroad, see what your options are for getting a certificate that’s officially recognized, registered, or issued by a governmental agency.
Another requirement for a marriage-based green card is that the marriage is “bona fide”—meaning you didn’t get married simply to provide the non-citizen with a pathway to citizenship. USCIS typically requires all couples to provide copies of documents such as photos of the wedding, letters, bills or statements showing you live together, and children’s birth certificates.
If your foreign-born fiancé is out of the country, but you want to get married in the United States, your best option is probably to get a K-1 fiancé visa. A K-1 visa allows your fiancé to spend 90 days in the United States. While your fiancé is in the country, you can get married, and then apply for “adjustment of status,” in other words, U.S. lawful conditional residence.
The legal requirements for getting a K-1 visa for same-sex couples are the same as those for different-sex couples. Perhaps most importantly, you must intend to get married. The U.S. government will require more than just a general goal of tying the knot—you’ll have to provide evidence of plans, such as reservations for a venue or an appointment to appear before a judge. It’s a good idea to make sure your plans are flexible, though, because there’s no guarantee of how long it will take to get approved for the fiancé visa.
You’ll also have to demonstrate that you and your intended spouse have met in person within the two years immediately before filing the I-129F petition for the fiancé visa. Finally, you must legally be able to marry. Being a same-sex couple is no longer a barrier to getting a legal marriage in the U.S., but you’ll want to make sure that you meet all the other requirements for getting a marriage license.
For more information, check out Nolo’s Fiancé & Marriage Visas: A Couple’s Guide to U.S. Immigration. The USCIS also offers an online policy manual that includes a section on immigration for spouses of U.S. citizens. Finally, Nolo has an online section addressing marriage-based green cards, which goes into greater detail on many of the topics addressed in this article.
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