A U.S. citizen or legal
resident can file a petition for a husband or wife to
become a legal resident (to get a green card). The
process includes several steps and is designed to detect
fraudulent marriages, that is, marriages entered into only
to obtain a green card.
If the petition is filed by a
U.S. citizen, the alien spouse has an immediate visa
number available as soon as the petition is
approved. This means that the alien spouse does not
need to wait to enter the country or to adjust his or her
status to a legal resident. (See below for alien spouses who
entered the U.S. illegally.)
If the petition is filed by a
U.S. legal resident, the alien spouse needs to wait for a
visa number after the petition is approved but will be
placed into the second preference. This means that
the alien spouse will need to wait to enter the country or
to adjust his or her status to a legal resident but will
be ahead of most other immigrants waiting for visa
numbers. Information
regarding visa availability can be found at the U.S. State Department website.
If a couple is not yet married and the alien is abroad, a
U.S. citizen may file a fiancee petition. The alien
should not enter the U.S. on a tourist or other
type of visa and then marry because the immigration
service may consider the visa to have been fraudulently
obtained if the real purpose for coming to the U.S. was to
be married. This situation could result in a spousal
petition being denied even though it is a true marriage.
Once the petition is approved and an immigrant visa number
becomes available, the alien spouse will be given an
appointment at the U.S. consulate in his or her country
for an interview. It is very important not to miss
this appointment. If the alien spouse is in the U.S.
and entered legally, he or she may stay in the U.S. and
file an application to adjust his or her status to a
permanent resident along with an application for a work
permit. Spouses of U.S. citizens can file the
petition and the application to adjust status at the same
time. If the spouse of a U.S. citizen is abroad, the
spouse can apply for a nonimmigrant K-3 visa to enter the
U.S. while the visa petition is pending. After
entering, the spouse can file an application for a work
permit.
If the alien spouse entered the U.S. illegally, then he or
she generally cannot adjust status to a legal resident
(cannot get a green card), unless he or she had a valid
immigration petition pending before April 30, 2001, and,
if the petition was filed after January 14, 1998, was
living in the U.S. on December 21, 2001. Alien
spouses who cannot meet these date requirements will have
to leave the U.S. and apply for a waiver of the 10-year
bar against entry to the U.S. for persons who remained in
the U.S. illegally for more than 1 year (the bar is 3
years if the illegal stay was between six months and 1
year). These waivers are difficult to obtain.
Before the application for permanent residence is granted,
an interview will be conducted at the consulate or the
local immigration office. Documents should be
presented to establish the marriage is bona fide
(true). If the interviewing officer is satisfied
that the marriage is bona fide, and the FBI background
check has been received and is satisfactory, the alien
spouse becomes a conditional permanent legal
resident. (If the marriage is more than 2 years old
at the time of the interview, the alien spouse becomes a
permanent legal resident without the conditional
status.) The officer usually places a stamp in the
alien spouse's passport to indicate that legal residency
has been granted. A green card, officially known as
a Permanent Resident Card, will then be received in the
mail. It is increasingly common for there to be a
wait of several months for the FBI check to be received by
the immigration service.
An application to remove the conditional status must be
filed during the 90 days before the 2-year anniversary of
the granting of the conditional permanent legal
residency. Failure to file during these 90 days time
will cause the application to be considered abandoned by
the immigration service and subject the alien spouse to
deportation. Additional documents to prove the
legitimacy of the marriage should accompany the
application.
After the application to remove the conditional status is
filed, one-year extensions of the permanent residency will
be granted while the application is pending. The
immigration service may conduct a second interview and/or
require additional documentation before granting the
application. Upon approval of the application, the
alien spouse will receive a permanent resident card valid
for 10 years.
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