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Marriage to a US Citizen—General Information Probably the most requested question on our Bulletin Board
involves the situation where the non-resident alien wants to enter the United
States on either a visa waiver or visitor visa, for the purpose of marrying a
United States citizen. In the
majority of these cases, the alien wants to stay with their spouse in the US and
not have to return to their home country in order to obtain an immigrant visa.
Let us discuss some of the scenarios, and the possible ramifications of
each, as well as discussing briefly the procedures that will have to be followed
in order to file for permanent residence (green card). 1. Entering the US with the specific intention of
marrying and then filing for adjustment of status.
This is probably the most common situation and can often lead to the
greatest problems. It must be
remembered that a person entering the US on a visitor visa, or visa waiver, is
coming for the purpose of a brief visit, and they intend to return to their
country prior to the expiration of their authorized stay in the US.
Therefore, if they are really coming to marry a US citizen and then file
for adjustment of status, they are not bona fide visitors for pleasure.
As such, they are impliedly, if not specifically, misrepresenting their
true intentions when they apply for entry to the United States. If the US Immigration
officer at the port of entry knows that they are not really coming to visit, but
rather intend to stay permanently in the US, they very likely could be denied
entry and required to return to their home country, where they will have to
apply for their immigrant visa. There
is also the possibility that the immigration officer could actually place the
individual in removal proceedings, which could require them to obtain a waiver
if they later wish to return to the US. Even if the individual enters the US without any
difficulty, a problem could still arise at the time that the individual appears
for their adjustment of status interview. Again,
if the immigration officer learns that the alien misrepresented their true
intention at the time of entry, the officer could require the alien to file for
a waiver of inadmissibility, which could be denied in the exercise of
discretion. There is case law that states “in the absence of other
adverse factors, an application for adjustment of status as an immediate
relative should generally be granted in the exercise of discretion
notwithstanding the fact that the applicant entered the United States as a
nonimmigrant with a preconceived intention to remain.”
This is particularly true “where substantial equities are present in
the case.” However, the Board of
Immigration Appeals has also held that “entry into the United States as a
nonimmigrant with a preconceived intention to remain is a serious adverse
factor.” Based on the foregoing, it should be clearly understood
that there is always a risk involved when entering the United States for the
purpose of marriage to a US citizen and then filing for adjustment of status,
although in the majority of cases, the application will nonetheless be approved,
especially where there are substantial equities and no other adverse factors. 2. Entering the US to visit and then deciding to marry
and file for adjustment of status. In
this scenario, the non-resident alien is coming to the US to visit a friend and,
after they have been here for a while, the couple decides to get married and the
alien files for adjustment of status. In this situation, the alien is less likely to encounter the
problem of the person who entered the US for the specific purpose of marrying
and filing for residence. However,
in this situation, the alien should be prepared to show that he or she entered
as a bona fide non-immigrant, either with a visa or on a visa waiver, and only decided to marry and file for adjustment
after entry to the US. Naturally,
the more time that passes between the entry and the marriage, the easier it will
be to prove non-immigrant intent at the time of entry. 3. Entering the US to marry a US citizen, and then
returning to your country to consular process.
This situation is perfectly legitimate, but can often cause serious
problems to the alien. The most
obvious problem is that the INS officer at the port of entry may not believe
that the alien will in fact return to his or her country after marrying the US
citizen. Therefore, what often
happens is that the alien is denied entry and must go back to their country and
have a fiancé(e) visa petition processed on their behalf. 4. Entering the US, getting engaged, and then processing
a fiancé(e) visa through the consulate.
This is a common situation, and is perfectly legitimate.
The alien enters the US to visit his or her friend, and then they decide
to marry. For various reasons, the
alien does not wish to marry at this time, and wants to return to his or her
country. In this situation, the US citizen would file a fiancé(e)
petition (Form I-129F) with the Immigration Service. Once the petition is approved, it is forwarded to the US
consulate where the alien resides, and he or she will apply for a K-1 visa.
Once the alien enters the US, he or she MUST marry the petitioner within
90 days and then file for adjustment of status with the INS office that has
jurisdiction over the couple’s place of residence in the US. 5. US citizen travels abroad to marry alien, who will
apply for an immigrant visa or a K-3 visa at the consulate.
In this situation, the US citizen will travel abroad and marry the alien
in his or her country. Following
the marriage, there are several options available.
The best and fastest is for the US citizen spouse to file an I-130
petition directly with the US consulate. The
problem is that some consulates do not want to be burdened with these petitions
and, consequently, refuse to accept jurisdiction.
Therefore, it is important before making any definite plans, to speak
with a consular officer to see whether they would be willing to entertain the
I-130 petition. If they do, then a
consular officer will interview the couple and, if satisfied with the bona fides
of the marriage, the petition will be approved. At that point, the alien can begin processing the application
for an immigrant visa to the United States. If the consul does not wish
to accept jurisdiction of the case, the US citizen petitioner would have to file
the I-130 petition with the Immigration Service Center that has jurisdiction
over the place of petitioner’s residence in the US.
If the parties are not in a hurry for the alien to come to the US, they
can wait for the Service Center to approve the I-130 petition and then forward
it to the National Visa Center, and then the US consulate for processing of an
immigrant visa. However, if the alien wishes to come to the US more quickly, the US citizen spouse should also file immigration form I-129F, after filing the I-130 petition. When this petition is approved, it will be forwarded to the consulate where the alien can apply for a K-3 visa. Once the visa is issued, the alien will be permitted to enter the US. After entry, the alien can immediately file for adjustment of status to permanent residence. ******************************************************* Click here for more information on applying for permanent residence through marriage. Please Note: The information provided above is general in nature, and may not be the same in every case. It is strongly urged that anyone considering filing for permanent residence should consult with a qualified immigration law attorney before filing any petition or application with the US Immigration Service or US Consulate.
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