Introduction

Every year, hundreds of thousands of foreign-born people become engaged or married to U.S. citizens and permanent residents. Just as no two romances are alike, none of these couples will have exactly the same immigration needs. Some will meet and marry overseas, then wish to move to the United States; some will meet in the United States and wish to marry and stay; and some will meet overseas and wish to come to the United States for the wedding. Each of these situations, and others, will require slightly different planning and procedures.

No matter what your situation, you have one thing in common with all the other fiancés and newlyweds (or even longtime spouses). Before you obtain the right to come to the United States, whether just to get married or to stay permanently, you will have to go through a lengthy process of submitting application forms and paperwork and meeting with government officials to prove your eligibility. The processes are not simple, but they are standard—meaning they can be done without a lawyer’s help, if your case is straightforward and your marriage, or planned marriage, is for real.

Caution: If you are or have ever been in removal (deportation) proceedings, you must see a lawyer. If the proceedings aren’t yet over or are on appeal, your entire immigration situation is in the hands of the courts and you are not allowed to use the procedures described in this book. Even if the proceedings are over, you should ask a lawyer whether the outcome affects your current application.

This book will show you how to:

• decide whether you are eligible
• choose the proper visa and submit the correct paperwork
• gather all necessary documents and prepare for interviews with U.S. government officials
• create and maintain documentary proof that your marriage is real
• deal with difficult bureaucrats and delays
• get a work permit in the United States
• make it through your two-year “testing period” to get your green card
• keep and enjoy your permanent residence status, and
• know when you need professional legal help.

Caution: Here comes the jargon. We try to keep the technical vocabulary to a minimum in this book, but there are times when no other word but the technical one will do. To check on the meaning of terms like “citizen,” “permanent resident,” or “green card,” please see the Glossary at the end of the book.

Who Should Use This Book

You probably picked up this book because you are the fiancé or spouse of a U.S. citizen or permanent resident and you want to marry and/or live in the United States. But a wedding plan or marriage certificate does not automatically grant you the right to be in the United States. How you apply for permission to come to or live in the United States depends on several factors. These include where you live now, whether you are married yet, whom you will be marrying (a U.S. citizen or lawful permanent resident), and (if you are in the country already) whether you entered the United States legally or illegally.

Upcoming chapters of this book will address various combinations of these factors separately, so that you’ll understand whether and how to go forward with your application.

Is a Fiancé or Marriage Visa the Best One for You?

Before we get too deep into the subject of this book, let’s pause. You might be curious about whether there are alternate ways of getting a visa or green card—especially if you have read our early warnings about how complicated it is to get a visa or green card through marriage!

1. How Does Your Visa Option Compare to Others?

There are dozens of categories of visas and other immigration benefits for people wanting to visit or live in the United States. But none of them will get you a green card overnight or without significant effort. In fact, most experts would agree that if you are already engaged or married to a U.S. citizen or permanent resident, immigrating based on this marriage is likely to be your best bet. The eligibility criteria are reasonably straightforward and the waiting periods are generally better, or at least no worse, than for most other types of visas.

If you are married to a U.S. citizen, there is no waiting period or quota to delay your entry into the United States. You will be subject to the usual time period it takes to process your paperwork and for the government to make sure you are not excludable for any reason, such as criminal past or health problems. (See Chapter 2, Section A, for more on inadmissibility.)

Unfortunately, marriages to U.S. permanent residents don’t result in such smooth sailing, immigration-wise. Spouses of permanent residents will probably have to spend a few years on a waiting list before their visa or green card becomes available to them. (See Chapter 2, Section A, for more on waiting periods.) However, spouses of permanent residents face shorter waits than many other family immigrant categories. For example, in early 2008, the waiting period for the spouse of a permanent resident was approximately five years. If the spouse also had a brother who was a U.S. citizen, he or she could also apply for a visa based on that sibling relationship, but the waiting period for that category is typically ten years or longer.

The only categories of people who avoid the visa waiting list are those defined as immediate relatives, which include the spouses of U.S. citizens, the unmarried children of U.S. citizens, and the parents of an adult U.S. citizen (over 21). If you don’t happen to be an immediate relative, then your potential green card through marriage to a lawful permanent resident is a fine option to have.

The spouse of a permanent resident might obtain a visa more quickly than waiting for a marriage-based visa if, for example, they:

• have a potential employer in the United States
• have parents or adult children who are U.S. citizens
• would be willing to invest $500,000 or more in a U.S. business
• have lived in the United States continuously since January 1, 1972
• come from a country from which they can apply for the Diversity Visa (known as the visa lottery), or
• fear political persecution in their home country.

Any of these categories might get a person permission to enter or stay in the United States more quickly than they could as the spouse of a permanent resident. But none of them is an instant answer.

See An Expert: If you fit into any of the categories above, you should consult an attorney. Chapter 17 contains tips on finding a good lawyer.

2. Why Can’t You Just Use a Tourist Visa?

Many fiancés and spouses immigrating from overseas wonder why they cannot simply use a tourist visa to enter the United States. They know they will spend a long time outside the United States waiting for their proper visa, while their fiancé or spouse is living inside the United States. But they also know that a tourist visa can be gotten in a few days. So why, they wonder, can’t they just pick up a tourist visa, come to the United States, and then worry about the rest of the green card application process once they’re together here?

There are two problems with this idea. First, if you pose as a tourist with the secret intention of staying in the United States for an indefinite time, you will have committed visa fraud. Visitor visas, or indeed any temporary visas, are for people who intend to stay temporarily—and then leave. They are not for people who plan to marry and live happily ever after in the United States. If U.S. Citizenship and Immigration Services (USCIS, formerly called “INS”) chooses to make an issue of it, your misuse of a tourist visa could lead to your losing the right to obtain a marriage-based green card and most other types of visas.

USCIS will be especially suspicious if you get married within two months of entering the United States. Sometimes USCIS will turn a blind eye, or you may be able to convince them that when you entered the U.S. on a temporary visa you really planned a short stay (and only decided to marry after you arrived). If USCIS remains unconvinced, you can ask them to forgive your error, but obtaining such forgiveness (in legalese, a “waiver”) is not easy and not covered in this book.

Example: Detlef enters the United States as a tourist, marries Sally (a U.S. citizen) a week later, and they apply for his green card in San Francisco. At their green card interview, the officer asks, “When did you decide to get married?” Detlef answers, “Oh, I asked Sally to marry me during a phone call last month, and when she said yes, I was so happy that I got a tourist visa, got on the next plane, and we were married in the Elvis Chapel in Las Vegas the following Monday.” This is an unfortunate answer, because it practically forces the immigration officer to notice that Detlef committed visa fraud.

Example: Nigel enters the United States as a tourist, marries Ellen (a U.S. citizen) three months later and they apply for his green card in New York. At the green card interview the officer asks, “What was your intention when you entered the United States?” Nigel says, “Our relationship was going very well long-distance, so I decided to travel to the United States to see Ellen in person. Frankly, it was also time for a vacation. A few weeks after I arrived, we realized we were really and truly in love. And when that feeling didn’t wear off, we decided to marry.” This answer has promise. Even if this couple was contemplating marriage before Nigel arrived, Nigel’s candid answer, plus the fact that they waited over two months to get married, makes clear that Nigel didn’t just use the tourist visa to get around the U.S. immigration laws.

The second problem is that if your U.S. fiancé or spouse is a permanent resident (not a citizen), you will, as mentioned above, have to wait for years until you are eligible for permanent residence or a green card. That means that if you come to the United States as a tourist and your visa runs out, you will be here illegally for all of those years of waiting. Living here illegally will cause many problems described in detail later on. For now, just keep in mind that it could ultimately make getting a green card extremely difficult.

Resource: Still curious about other visas? There are many types of visas and immigration benefits for temporary and permanent U.S. residence. Though in many cases they apply only to narrow categories of people, you might want to scan the summary provided in Appendix A. If you see any likely prospects, you can check out their advantages and disadvantages before continuing with the application covered by this book. You will find more detailed information on these visa categories in U.S. Immigration Made Easy, by Ilona Bray (Nolo).

Using a Fake Marriage to Come to the U.S.

It is illegal for anyone to get married solely for the purpose of getting, or helping someone to get, permanent residence in the United States. There are stiff fines and possible jail terms for people who are convicted of this crime. But we would be foolish not to address the fact that many people attempt to fake a marriage to obtain a green card.

Skip Ahead: If you are getting married for legitimate reasons, you can skip this section and continue reading at Section D.

If you are considering a fake, or sham, marriage, you probably already know that what you are planning is illegal. You should also know that this book is written with the assumption that you are marrying for love, not for a green card. We are not going to give you any special tips on making a fraudulent marriage look real. However, we will outline the risks for you.

1. What Is a Sham Marriage?

A sham marriage is one that is entered into in order to get around the U.S. immigration laws. For a marriage to be valid under the law, it is not enough that the couple had a real marriage ceremony and got all the right governmental stamps on their marriage certificate. They have to intend to live in a real marital relationship following the marriage ceremony—and prove their intention through their actions. If the couple doesn’t intend to establish a life together, their marriage is a sham. (For more on what USCIS considers to be a real or bona fide marital relationship for purposes of green card eligibility, see Chapter 2, Section B.)

2. Will You Get Caught?

Detecting marriage frauds is a top priority for USCIS. USCIS officers still quote a survey from the 1980s which found that up to 30% of marriages between aliens and U.S. citizens are suspect. That survey has since been shown to be deeply flawed, but its legacy lives on.

In order to detect frauds, the immigration authorities require a lot of proof that a marriage is real, including more documentation than for other family-based immigration applicants. They subject marriage-based immigrants to a longer and more detailed personal interview and a two-year testing period for couples who have been married fewer than two years.

The government will not normally follow you around or investigate your life beyond the required paperwork and the interviews it always conducts. But it has the power to look deeply into your life if the authorities get suspicious. Government inspectors can visit your home, talk to your friends, interview your employers, and more. By requiring more of married couples than others, the government has already set up a system that gives it a lot of information about whether your marriage is real.

What is the U.S. government’s view of a normal marriage? The statutes and regulations don’t go into detail on this, so the following comes from a combination of court cases and attorneys’ experiences.

According to USCIS, the normal couple has a fair amount in common. They share a language and religion. They live together and do things together, like take vacations, celebrate important events or holidays, and have sex and children. Normal couples also combine financial and other aspects of their lives after marriage. They demonstrate their trust in one another by sharing bank and credit card accounts and ownership of property, such as cars and houses.

The government requires applicants to prove that they share their lives in a way similar to what is described above. Applicants do this by providing copies of documents like rental agreements, bank account statements, and children’s birth certificates. The government further tests the validity of the marriage by talking to the applicant and usually to his or her spouse. Every marriage-based applicant for a visa or green card (including fiancés), whether they are applying in the United States or overseas, will have to attend a personal interview with a U.S. government official.

U.S. government officials have developed amazing talents for discovering fraud by examining what look like insignificant details of people’s lives. To ferret out lies, they have learned to cross-check dates and facts within the application forms and between the application forms and people’s testimony.

Example:Rasputin has married Alice, a U.S. citizen, in the hopes of obtaining a green card. They submit an application for a green card in the United States. At Rasputin’s green card interview, the officer asks for his full name, his address, and how he entered the United States. Rasputin can’t believe how easy this all is. The officer goes on to ask for the dates of all of Rasputin’s visits to the United States, the date of his divorce from his previous wife and the dates of all of his children’s births. Rasputin is getting bored. Then the officer notices something funny. The date of birth of Rasputin’s last child by his former wife is a full year after the date of their supposed divorce. The officer becomes suspicious, and Rasputin and Alice are taken to separate rooms for fraud interviews. They are examined in minute detail about their married lives. When neither of them can remember what the other one eats for breakfast or what they did for their last birthdays, the case is denied and referred to the local Immigration Court for proceedings to deport Rasputin.

If a couple has been married for less than two years when the immigrant first receives residency, USCIS gets a second chance at testing the validity of the marriage. The immigrants in such couples don’t get a permanent green card right away. Instead, the law requires that their first green card expire after another two years. (The technical term is that the immigrant has “conditional residency.”)

When the two years are up, both members of the couple must file an application for the immigrant’s permanent residency. They must include copies of documents showing that they are still married and sharing the important elements of their lives. This form is mailed to a USCIS office. As USCIS knows, it is extremely difficult for members of sham marriages to keep things together for a full two years, even on paper. If the marriage appears to be a real one when the two years is up, the conversion from conditional to permanent residency won’t involve an intensive investigation—the application process doesn’t even include an interview if the written application looks legit.

Example: Maria married Fred, a U.S. citizen, in order to get a green card. Fred was a friend of Maria’s, who simply wanted to help her out. Maria manages to get approved by the consulate at her immigrant visa interview, and enters the United States. Because their marriage is new, Maria is given two years as a conditional resident. During those two years, Maria overdraws their joint checking account three times. Fred gets angry and closes the account. Maria has an accident with their jointly owned car and it goes to the junk yard. Fred buys another car in his own name and won’t let Maria drive it. Fred gets fed up and wonders why he got into this in the first place. He falls in love with someone else and insists that Maria move out. At the end of her two years of conditional residency, Maria can’t get Fred to answer her phone calls. In desperation, she fills out the application form on her own, fakes Fred’s signature and lists his address as her own. However, the only documents she can attach are the same bank account statements and car registration she submitted to the consulate two years ago. USCIS checks the files and notices this. They call her and Fred in for an interview. It’s not long before the truth comes out and enforcement proceedings are begun.

As you see from the examples above, people who enter into sham marriages most often trip themselves up just trying to get through the standard process. It’s not that USCIS can read people’s minds or that it spends all its time peeking into applicants’ bedrooms. They simply catch a lot of people who thought that a fake marriage was going to be easier than it really is.

3. What Happens If You Are Caught

The law pretty much speaks for itself on what happens to immigrants who commit marriage fraud. You can face prison, a fine or both:

Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both (I.N.A. § 275(c), 8 U.S.C. § 1325(c)).

The U.S. citizen or resident could also face criminal prosecution, including fines or imprisonment, depending on the facts of the case. They are most likely to be prosecuted for either criminal conspiracy (conspiring with the immigrant is enough; see U.S. v. Vickerage, 921 F.2d 143 (8th Cir. 1990)), or for establishing a “commercial enterprise” to get people green cards (see I.N.A. § 275(d), 8 U.S.C. § 1325(d)).

The extent to which these penalties are applied depends on the specifics of each case. The government tends to reserve the highest penalties for U.S. citizens or residents engaged in major conspiracy operations, such as systematically arranging fraudulent marriages. But that doesn’t mean that small-time participants in marriage fraud can count on a soft punishment—though most immigrants will probably simply be deported and never allowed to return.

How to Use This Book

This book is a unique combination of legal analysis and form preparation instructions. If you’re like most people, you’ll be tempted to go straight to the form preparation portions of the book. After all, how many of us read the directions before we plug in a new appliance? But consider this a great big warning label: If you just “plug in” to the visa application process, it could blow up. The U.S. government may give the lucky ones a second chance, but many careless applicants have found themselves deported or prevented from coming to the United States for many years. You won’t need to read every section of this book, but please figure out which ones apply to you, and read them.

First, however, a word of reassurance. Most applicants do get a second chance at bringing their application up to the government’s standards. A number of people are going through the immigration process on their own, and the U.S. government is accustomed to seeing badly prepared applications. You don’t need to worry that one little mistake will lead to an instant denial of your visa or green card. If there is a problem in your application that can be corrected, you’ll usually be given time to correct it.

The trouble is, you could make a mistake that’s irreversible—like unnecessarily revealing something that makes it look like you’re ineligible. So you may as well use the advice in this book to get your application right the first time around.

1. Chapters Everyone Should Read

There are a few chapters that everyone needs to read. These include Chapters 1 and 2, which explain whether this book can help you; and whether the immigration laws might exclude you automatically for health, security, or other reasons. We also highly recommend that everyone read Chapter 3, dealing with the income levels necessary to support a new immigrant. Lack of financial support is now one of the most common reasons for green card denials.

If your visa or green card prospects still look promising, move on to Chapter 4, which contains important tips on handling all the necessary paperwork. This is a vital chapter—the first impression that you create with your paperwork often determines how much scrutiny the government will give your application.

Caution: Always watch for changes in the law. The U.S. Congress, USCIS, and the State Department are constantly fixing, adjusting, and updating the immigration laws, procedures, fees, and forms. We can’t track you down to tell you if anything in this book is affected—you’ll need to watch the news and check the Updates to this book at www.nolo.com.

2. Chapters for Your Situation

After you read Chapters 1 through 4, skip to the chapter that best describes your situation. For example, as shown in “Which Chapter Is for You?” below, if you’re living overseas and engaged to a U.S. citizen, you’d turn to Chapter 5. But if you’re living in the United States and married to a lawful permanent resident, you’d read Chapter 12.

Each of Chapters 5 through 12 will help you analyze your immigration situation, discuss what options are available to you, and take you through any necessary preliminary procedures. If you qualify for and want to obtain a green card, you will also be coached to decide whether to apply in the United States, through a procedure called adjustment of status, or at a U.S. embassy or consulate abroad, through a procedure called consular processing, and directed to a chapter or section which explains these procedures.

You will be guided through each part of the process, using checklists designed for your immigration status. The checklists will summarize all the forms and documents that you need, and direct you to the proper forms, line-by-line discussions of how to fill out the forms, and other necessary information. Chapter 13 will instruct you on preparing for your visa or green card interview (the required final step for every applicant).

3. Chapters for Unique or Problem Situations

Hopefully, the chapters described above will be all you need to get your visa or green card. However, things don’t always happen as they should when dealing with the U.S. immigration bureaucracy. Therefore, we’ve included chapters to cover special situations or problems.

If you’re lucky, you’ll never have to read Chapter 15, Dealing With Bureaucrats, Delays, and Denials. But most people find their application takes longer than they think it should. In that case, you’ll be glad to have this chapter, as well as the sample reminder and inquiry letters that accompany it. Chapter 15 also deals with what to do if your application is denied.

Finally, if your case is turning out to be much more complicated than you’d expected, you’ll need to consider getting a lawyer or doing some legal research of your own. In that case, review Chapter 17.

4. Chapters to Save for Later

Even after you win a visa or new immigration status, you will still be required to follow some immigration rules. Chapter 16, After You Get Your Green Card, covers the rights and responsibilities of visa and green card holders, including you and members of your family. After all this hard work, you wouldn’t want to lose your residency.

Chapter 16 also covers certain people with young marriages, whose green cards expire after a two-year testing period called “conditional residency.” This chapter gives them all the instructions they need to go from conditional residency to a normal green card—that is, permanent residency.

Chapter 16 also gives you instructions on how to renew or replace the green card itself.

5. Appendixes

The appendixes to this book include a great deal of useful information, including a summary of the types of green cards and visas available to people and tear-out versions of the various handy checklists provided throughout this book.

Tip: Remember to use the checklists. No matter which immigration status you plan to pursue, it will involve lots of paperwork and documents. If you rely on the proper checklist, you should avoid missing any steps.

Getting the Latest Forms and Fees

This book doesn’t provide immigration application forms, for good reason. The U.S. immigration authorities revise these forms so often that by the time you’re using this book, chances are the form will have gone out of date—and the government could refuse to accept it.

All the application forms you’ll need—and we’ll tell you exactly which ones they are—are either readily available or will be mailed to you by the immigration authorities when the time is right. Some can even be filled out online. This book also includes filled-in samples of the most important forms.

The main sources for immigration application forms are:

• U.S. Citizenship and Immigration Services, by visiting one of its local offices (though you may have to make an appointment first); through its website, www.uscis.gov (click the “Immigration Forms” tab, then scroll down until you find the form you need); or by calling 800-870-3676, and
• the U.S. State Department, through its website, www.state.gov (click “Travel and Business” then “Visas,” then “Visa Forms”).

Caution: It’s getting harder and harder to visit your local USCIS office. There are a few times when you might wish to visit a USCIS office in person, for example, to pick up local forms or ask about delays. However, to reduce the long lines, the agency has begun a program called “InfoPass,” requiring visitors to make appointments before they arrive. Check the USCIS website (www.uscis.gov; click the “InfoPass Appointment Scheduler” link on the right side of the page) before you go, to see whether InfoPass is in effect at your local USCIS district office. If it is, you have little choice but to make an appointment (some offices will allow walk-ins if there’s space, but don’t count on this). Appointments can be made only through the Internet. You’ll need a computer with a printer, so that you’ll have the required printout of your appointment notice when you visit. (Also, be sure to bring photo identification and any paperwork associated with your immigration case to your appointment.)

Immigration application fees, like the forms, change regularly. And most USCIS and consular applications require fees to accompany them. For up-to-date fees for U.S. filings (even USCIS forms sometimes print out-of-date fees) check the USCIS website at www.uscis.gov. Click on “Immigration Forms,” and you’ll find a complete fee table. Alternately, you could call the USCIS information line at 800-375-5283.

For up-to-date fees for consular filings, check the State Department’s website, www.travel.state.gov. Under “Visas for Foreign Citizens,” click “more,” then choose “Fees and Reciprocity Tables” from the drop-down menu next to the “Frequently Requested Visa Information” box. This information may also be accessed through the U.S. State Department’s Visa Services office, at 202-663-1225. The fee can be paid in dollars or in the local currency, at the current exchange rate.

Caution: There will be other expenses. If you’re trying to figure out how much to budget for this process, don’t forget the costs of required items other than the fees, such as photos, the medical exam, and having documents translated or notarized.