If you are marrying someone from Canada, and plan to sponsor your new husband or wife for a U.S. green card (lawful permanent residence), here is some important legal and practical information.
(Warning: This is a general overview of how the process works for most people. Your situation may present complications or qualify for exceptions; see an attorney for a full analysis.)
Immigration Eligibility Based on Engagement or Marriage
First, a little background on U.S. immigration law. Marriage to a U.S. citizen or lawful permanent resident provides foreign-born persons a direct path to U.S. immigration. Contrary to popular rumor, however, they do not immediately or automatically receive green cards or U.S. citizenship.
If you are a U.S. citizen, your new spouse becomes your "immediate relative," and may receive a green card as soon as the two of you make it through the application process. This can take several months.
If you are not yet married and your fiancé is still in Canada, you can, if you are a U.S. citizen, petition for him or her to enter the U.S. as a fiancé in order to get married in the U.S. -- and then your new spouse can apply for a green card, if desired. This is NOT one of the categories of visas for which it is okay for a Canadian applicant to proceed straight to the U.S. border or port of entry to apply. (You can also choose to get married first in another country, and then apply for an immigrant visa with which to enter the U.S.– the equivalent of a green card.)
If you are a lawful permanent resident, your new spouse becomes a "preference relative," in category 2A, and can apply for a green card (and enter the U.S.) only after a visa number has become available. Annual limits on the number of visas given out in category 2A create years-long waits. The application process itself adds more months to the process. Permanent residents cannot petition for fiancés.
Overview of Obtaining a Green Card Based on Marriage
The application process for a green card based on marriage involves multiple steps, such as submitting forms and documents and attending an interview with U.S. immigration authorities. The purpose of all this is to prove:
- the status of the U.S. petitioner (as a citizen or permanent resident)
- that a valid marriage has occurred (or will occur, in the case of a fiancé visa)
- that the marriage is bona fide (not a sham to get a green card), and
- that the immigrant is not inadmissible to the U.S. for medical, criminal, financial, or other reasons. (See "Inadmissibility: When the U.S. Can Keep You Out" for details.)
Procedurally, you may have more than one option as to where and how you apply, as described below.
Procedures When Applying for a K-1 Fiancé Visa
If you and your intended (who lives outside the U.S.) have not yet married -- or have held an informal ceremony that does not count as an official marriage in the location where it was held -- you can apply for a temporary (90-day) visa to enter the U.S. and hold the wedding.
The U.S. citizen starts this process by filing a visa petition on Form I-129F with U.S. Citizenship and Immigration Services (USCIS). After USCIS approves the I-129F, it will transfer the case to a U.S. consulate in Canada. There, your fiancé will apply for a K-1 visa, which involves submitting forms and documents and attending an interview.
After your marriage in the U.S., your new spouse can apply to USCIS for a green card, through a process called adjustment of status. The two of you will attend a green card interview at a local USCIS office.
Procedures for Your Spouse to Come From Canada on an Immigrant Visa
If you and your husband or wife have married, and your spouse is currently in Canada, you would start the green-card application process by filing Form I-130 with USCIS. After USCIS approves the I-130, spouses of U.S. citizens can continue with visa processing, while spouses of permanent residents must wait (an average of two years) for a visa to become available.
Next, your Canadian spouse will go through consular processing for an immigrant visa. This means your spouse submits paperwork to, and attends an interview at, a U.S. consulate in Montreal, Canada. (The U.S. petitioner may attend, but is not required to.)
Upon approval, your spouse enters the U.S. on an immigrant visa, at which time he or she becomes a lawful permanent resident.
At Which U.S. Consulate in Canada the Interview Will Be Held
Although the U.S. has consulates in several cities in Canada, most of them do not process immigrant visas based on marriage. (As of 2012, only the consulate in Montreal was handling immigrant visas.) You will be given instructions when you apply, or can check the websites of individual U.S. consulates by using the State Department’s page for “Websites of U.S. Embassies, Consulates, and Diplomatic Missions.”
If your spouse happens to be living in another country than Canada, the consulate there would likely be the one to handle the case.
Procedures If Your Spouse Is Already in the U.S.
If your spouse initially came to the U.S. as a nonimmigrant (such as on a fiancé or student visa or as a tourist), and either you are a U.S. citizen or your spouse is still in valid status, he or she can apply to adjust status in the United States. The main form for this is an I-485. The two of you will attend an interview at one of USCIS’s field offices. Information about USCIS locations or service centers can be found at its website, www.uscis.gov. (Just make sure your spouse didn’t commit visa fraud by using the nonimmigrant visa specifically to enter the U.S. and apply for a green card – see “Risks of Entering the U.S. as a Tourist, Then Applying for Marriage- Based Green Card” for details.)
If, however, your spouse entered the U.S. without inspection, or you are a permanent resident rather than a citizen, your situation is more complicated than this article can address. You may have difficulty obtaining a green card for your spouse, though it is not impossible. See an immigration attorney for details or if you have any questions about whether you qualify to adjust status.
Entering Into a Legally Valid Marriage
No matter where you marry, you will need to obtain a certificate that convinces the U.S. immigration authorities that it was legally recognized in the state or country where it took place. Below are some tips on doing that.
Obtaining Documentation of a Valid Marriage in Canada
If you have married, or plan to get married in your fiancé or spouse’s home country, you will first need to look into Canada’s requirements for legal marriage. The most important requirement is that you first obtain a marriage certificate, which will involve presenting:
- an identity document for each person (birth certificate or passport)
- consent forms if one spouse is underage in that province, and
- documents showing that any previous marriages have ended, such as death or divorce certificates.
Beyond obtaining a certificate, you will need to check on the marriage rules in the province or territory where you will hold the event; the exact rules vary. For more information, check with the local government, via the links on the Service Canada website.
After the ceremony, you will need to obtain a certificate of that marriage. The U.S. government keeps track of what documents are considered legally valid from each country, and will reject your marriage certificate if it doesn't come from the proper source. For instance, the U.S. will not accept “small” or “short form” versions of Canadian marriage certificates. Check the "Country Reciprocity Schedule" to get further details on what documents from Canada it considers valid. (Choose Canada from the menu, then scroll down the page to “Birth, Marriage, and Death Certificates.”
Obtaining Documentation of a Valid Marriage in the United States
If you will hold your wedding in the U.S., you need to follow the laws of the state where you marry. For a summary, see “Marriage Laws in Your State.” You will need to obtain a marriage certificate from a local government office. A church certificate, for example, is not enough.