Before Filing Anything – Potential Issues That Could Result in Denial of a Marriage Case
Even if a U.S. citizen or Lawful Permanent Resident spouse files an immigration case to sponsor his or her spouse, it does not guarantee that the noncitizen will be eligible for a green card. This is due to many possible factors including (A) how the noncitizen entered the country(illegally or with a visa and the type of visa upon entry); (B) the noncitizen’s immigration history and past entries and stays in the U.S.; (C) the noncitizen’s prior misrepresentations to any CIS, INS, or DHS agent at the border, in application for a visa, or within the U.S. to gain an immigration benefit; (D) insufficient documentation to show CIS that the marriage is bona fide(i.e., a marriage that was entered into for love, not immigration purposes); and (D) a finding by the CIS interviewing green card officer that the noncitizen engaged in visa fraud upon entry into the U.S. or at any time in the past. These are just a few examples of possible grounds for denial of what a noncitizen or U.S. citizen spouse may feel is a straight-forward marriage-based green card case.
Attorney Representation v. Notario, Consultant, or Paralegal Document Preparers
This is not meant to scare you but to educate. This information is provided to bring attention to the necessity of having your case analyzed by a immigration attorney licensed in the U.S. to practice law before any paperwork is filed with CIS, to determine the noncitizen spouse’s eligibility and worse, to avoid exposing a noncitizen who is undocumented to CIS for a case that may not result in a green card but could lead to deportation.
At first, you may be inclined to hire a notario (notary public), consultant or paralegal because these agents claim that they can do the same things that attorneys do without the cost. However, these individuals are illegally practicing law, and worse, holding themselves out as attorney or as experts in laws they are not educated on or understand as non-attorneys. This causes them to miss potential dangerous issues that could lead to a denial of the case or worse, arrest and detention of the noncitizen spouse at the very green card interview ? where these agents cannot be present (only an attorney can be by your side at a green card interview). Hiring a notario or consultant instead of an immigration lawyer could likely cost you more money in the long run by having to re-file the case (if you’re lucky and eligibility has not been lost) or worse, having to hire an attorney to defend your spouse now in deportation proceedings because of negligent and uneducated legal work performed by these individuals, which is a lot more expensive.
Understanding the Basics of Sponsorship: What to Know If You are a U.S. Citizen
Deciding to sponsor a fiancé or spouse for a green card (lawful permanent resident status) can ensure that newlyweds are not separated due to the restrictions of U.S. immigration law and can start focusing on building the rest of their lives together. Unfortunately, though, marriage to a U.S. citizen does not mean that the noncitizen (alien) is automatically a lawful permanent resident or even has the legal right to stay in or enter the U.S. once s/he marries a U.S. citizen.
Your noncitizen spouse does not have to wait in line for a visa
Family-based immigrants are admitted to the U.S. either as immediate relatives of U.S. citizens or through the family preference system (the visa quota system). If a non-citizen is married to a U.S. citizen, the non-citizen will be considered an immediate relative. Immediate Relatives are:
Spouses of U.S. citizens;
Unmarried minor children of U.S. citizens; and
Parents of U.S. citizens.
There is no cap on the number of visas available each year for immediate relatives, so there is no competition with other applicants in this category and thus, not a significant backlog in case processing.
Understanding the Basics of Sponsorship: What to Know If You are a Lawful Permanent Resident
Spouses of Lawful Permanent Residents are subject to the Visa Preference System and the backlogs the system creates. There are a limited number of visas available every year under the Family Preference system. Under current immigration law, there are only 87,900 visas allocated to spouses of Lawful Permanent Residents and minor children every year. Thus right now, for most countries, there is a five year backlog in available visa numbers for this category. To see the most processing times in this category, visit the visa bulletin published by the U.S. Department of State. The backlog is much worse for India, Mexico, and the Philippines. And, without a visa number available for new filings, a spouse of a U.S. legal permanent resident could remain years outside the U.S. until s/he is allowed to immigrate based on marriage to a Lawful Permanent Resident.
If a visa number is not immediately available, the LPR spouse must file an Immigrant Visa petition for their noncitizen spouse who resides abroad, with U.S. Citizenship & Immigration Services in the U.S. Once approved and once an immigrant visa number is available, only then can the noncitizen spouse apply at the consulate to finalize the green card process.
If the noncitizen spouse lives in the U.S., the immigrant visa must still be applied for with US CIS but the spouse may have to depart the U.S. when the visa number becomes available, because the spouse may be ineligible to apply directly in the U.S. for a green card if s/he entered the U.S. illegally or worked without authorization. Travel outside the U.S. is risky for someone who has been in the U.S. illegally, even if married to a LPR, because the act of leaving the U.S. to pick up the immigrant visa that leads to the green card from the consulate, could trigger the 3 or 10 year bar, not allowing the noncitizen to re-enter the U.S. for years.
These are complex issues that are best addressed before any paperwork is filed for your noncitizen spouse, to ensure that the noncitizen spouse is actually eligible to receive a green card before exposing him or her to CIS and losing money and time in the process.
Possible Ways to Sponsor Your Spouse
What do I do if my spouse is currently inside the U.S.?
If the non-citizen spouse currently lives in the U.S., s/he may be able to obtain lawful permanent residency status (green card), through the process called Adjustment of Status (AOS) in the U.S. without having to leave the U.S. and pick up an immigrant visa at a consulate abroad. Another benefit of this AOS process is that a work card is filed at the same time as the AOS application, resulting in the noncitizen’s ability to work wherever s/he can find a job in the U.S. within a few months of filing.
Can my noncitizen spouse travel outside the U.S. while a green card case is pending at CIS?
If the noncitizen has no prior overstays of the previously granted permission of time in the U.S., then s/he may also file for a special travel document to allow the noncitizen to travel outside the U.S. while the AOS case is being decided and before a green card interview has been scheduled. Otherwise, if the noncitizen travels without this special travel document, CIS will consider the AOS case to be abandoned, will deny the case, and will likely not allow the noncitizen spouse to re-enter the U.S. for some time.
How long does it take my spouse to receive a green card once the case is filed?
The other main benefit of the AOS process, at least in California and some other areas of the U.S., is that the green card process can be completed and the green card obtained in as little as 7 months after filing (based on current processing times), if an experienced immigration attorney files the case. For lists of current processing times by district CIS office, click here.
What’s the actual process involved in filing this type of case?
The process is different, whether you hire an attorney, a non-attorney, or try to file the case yourself.
What does an experienced Attorney certified filing include? Individuals representated by consultants, notarios, or filing by themselves, do not find out until an average of 1 ½ – 2 months after filing if the filing is incomplete or improperly filed, causing the individual to have to provide additional documentation or re-file the case, which is not always possible since sometimes important amnesty deadlines are missed by filing the wrong or incomplete paperwork the first time around.
Experienced immigration Attorneys, on the other hand, can certify filings of AOS (green card) cases with US CIS, signing off that all necessary supporting documentation is submitted with the filing, queing the case to an interview slot faster which also cuts down time on the issuance of the work card. An experienced attorney knows what forms and supporting documents to include which significantly reduces the chances that the case will be slowed down by months with CIS requests for additional evidence.
Can I still file for my spouse if s/he Entered the U.S. Illegally?
A noncitizen has entered the U.S. illegally if s/he was not inspected by a CIS Officer who asked to show identification and visa for traveling into the U.S. at the point of entry into the U.S. Generally, if a noncitizen entered the U.S. illegally, s/he will not be able to apply for Adjustment of Status and receive the green card or lawful permanent residency status because of that unlawful entry. Instead, the noncitizen’s U.S. citizen spouse must file an Immigrant Visa petition in the U.S. and once approved, the petition is forwarded to the consulate located closest to the noncitizen’s foreign address and the noncitizen must pick up the visa and green card abroad, from this consulate.
This is obviously much less convenient than being able to obtain a green card in the U.S. through a CIS office.
Further, the moment a noncitizen who has been in the U.S. illegally for six months or longer leaves the U.S., s/he triggers what’s called the 3 and 10 year bars to re-entry. These bars hold that the noncitizen will likely be denied re-entry into the U.S. despite the marriage to a U.S. citizen because of his or her previous unlawful/illegal stay in the U.S. There are limited exceptions or waivers available to the enforcement of these bars of re-entry but waivers, especially, are very difficult to get approved. Thus, it is crucial before a nonimmigrant leaves the U.S. that his or her immigration history be analyzed by an experienced immigration attorney to determine if the huge risk is truly worth the potential benefit.
The other two options for avoiding the bars of re-entry are to stay in the U.S. and try to take advantage of a past amnesty – type statute provision called INA 245(i) or file for an extreme hardship waiver * based on the marriage,claiming that the U.S. citizen spouse will suffer extreme hardship if his or her spouse is deported. These, like the waivers for the 3 and 10 year bars, are very difficult cases to prove, considering how many waivers like this are filed every year and the skepticism of many CIS and Immigration court personnel about what constitutes extreme hardship. Whether a noncitizen spouse qualifies for either exception to the unlawful presence rules to be able to attain a green card in the U.S. is a case by case basis and should be reviewed with an experienced immigration attorney.
* WARNING: It has been a trend among some attorneys who want a potential client’s money on the underlying AOS case, to charge a very low rate for an extreme hardship waiver in very difficult cases with little compelling evidence. Be weary about exposing your spouse who is out of lawful immigration status to CIS by filing a green card case if the case will ultimately depend on the merits of the extreme hardship waiver, if the attorney cannot explain how the facts in your case are compelling (mere hardship and loss of togetherness, a business, relocation, separation, by itself is not enough for extreme hardship !). Be weary that if a lawyer is charging you, say $1500 for a waiver, there is no way that lawyer is going to be putting much time into your case. Unfortunately, you will find even with lawyers, that you get what you pay for.
What happens to my spouse once s/he has received a green card?
If the two of you have been married for more than 2 years by the time the green card interview is scheduled, then the noncitizen spouse will be issued a green card (lawful permanent residence card) for 10 years, and is easily renewable at the end of that 10 year period. If the two of you continue to reside together as husband and wife, then your noncitizen spouse will be eligible to apply for U.S. citizenship 3 years after s/he received her green card (usually approved at the green card interview).
What do I do if my spouse is currently outside the U.S
Getting your fiance here: The fiance visa
If you are engaged to a noncitizen but are not yet married, you may sponsor him or her for a fiance visa. The fiancé visa is a temporary visa that allows your future spouse to enter the U.S. to marry you and reside with you in the U.S. If you are already married to a noncitizen, you cannot apply for the fiancé visa for him or her. The fiancé visa is applied for by the sponsoring U.S. citizen with U.S. Citizenship & Immigration Services (CIS) in the United States. Once CIS approves the petition, the case is transferred to the consulate nearest the noncitizen fiancé’s foreign address. The consulate will then arrange for the sponsored noncitizen fiancé to have a medical exam by an approved physician and interview at the consulate for the fiancé visa. Upon issuance of the fiancé visa and entry into the U.S., the noncitizen must marry the sponsoring U.S. citizen fiancé within 90 days of entry.
Deciding whether to marry a noncitizen in the U.S. or in another country
When a marriage takes place outside of the U.S., it will be difficult for the noncitizen spouse to enter the U.S. as s/he once did, i.e., on a tourist visa or other temporary visa, instead of on a K-3 visa or until an immigrant visa is applied for in the U.S., then approved and finally issued in a foreign consulate. The reason that re-entry into the U.S. without a K-3 or immigrant visa is difficult for a noncitizen is that when a noncitizen marries a U.S. citizen, that shows CIS that the noncitizen has the permanent intent to stay in the U.S. and not return to their home country. Yet, when the noncitizen tries to enter on a tourist visa or other temporary visa, the noncitizen is telling CIS that s/he plans to stay only for a short period in the U.S. This conflicting temporary v. permanent intent problem (commonly referred to as ?dual intent?) usually results in CIS concluding that the noncitizen committed ?visa fraud.? Further, if a port of entry CIS officer discovers that the noncitizen is married to a U.S. citizen when the noncitizen tries to enter on a tourist or other temporary visa, the officer will be likely to conclude that the noncitizen will overstay their visa and live permanently in the U.S. because of the existence of a U.S. citizen spouse giving the noncitizen good reason to stay in the U.S.
Because of this and due to potentially longer processing times with immigrant visas and the K-3, many couples decide to marry within the U.S. to take advantage of the usually faster Adjustment of Status process instead of waiting for consular processing. Many times, our client couples prefer to legally marry in the U.S. but then have a renewal of vows or another ceremony (often called a religious ceremony) for friends and family abroad, so they can start the immigration process for the noncitizen spouse as soon as possible while the noncitizen spouse is in the U.S.
Regardless, where you decide to legally marry (not necessarily a religious ceremony or even a wedding, perhaps just a justice of the peace), could significantly change your options and processing times and what path you choose. It would be best to discuss your wedding plans with a qualified immigration attorney to decide what path is best for your situation and the consequences and benefits of marriage outside and inside the U.S.
The Immigrant Visa Process
Once you are married to your noncitizen spouse, you will have to apply for an immigrant visa and provide all supporting documentation for that application with U.S. Citizenship & Immigration Services in the U.S. Once CIS approves the petition, the case is transferred to the National Visa Center of the Department of State for continued processing. Once a visa number is assigned to the case and final documentation received, the case is transferred to the consulate nearest the noncitizen spouse’s foreign address, which will arrange for the spouse to be interviewed (much like a green card interview in the U.S. ) Assuming all goes well, the spouse will be issued a green card in his or her passport upon entry into the U.S. The processing time for this entire process can take 9 months to 2 years, depending on which state the U.S. citizen spouse resides in.
There are a few exceptions to this process, that allow a couple to save months of processing time so as not to be separated for long periods. If time is a concern and before you try to cut corners yourself in the immigration process, consult an attorney right away, so as not to make any decisions that could ruin your spouse’s chances for a green card.
K-3 temporary visa
The K-3 visa was created in response to the long processing time it can take for a foreign spouse to be issued a green card for entry into the U.S. A person may receive a K-3 visa if that person is already married to a U.S. citizen, has a pending Immigrant Visa filed by their U.S. citizen spouse at U.S. CIS, and seeks to enter the United States to await the approval of the petition and subsequent lawful permanent resident status. This visa must still be applied for with CIS and once approved, must be sent to the consulate nearest the foreign noncitizen’s spouse for issuance.
What happens to my spouse once s/he has received a green card?
If the two of you have been married for more than 2 years by the time the green card interview is scheduled, then the noncitizen spouse will be issued a green card (lawful permanent residence card) for 10 years, and is easily renewable at the end of that 10 year period. If the two of you continue to reside together as husband and wife, then your noncitizen spouse will be eligible to apply for U.S. citizenship 3 years after s/he received her green card — usually received at the green card interview.
The above information is general in nature and is not intended to be considered or relied upon as legal advice. You should always consult an attorney to determine if what immigration options are available to you and to determine how any recent changes in the law could affect your situation.
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As May 2011 Approval rate does not guarantee success on your particular matter. Whether or not your case is likely to be successful depends on the facts, the law, and available evidence. No attorney can legally guarantee an outcome. For more information on whether the Attorney believes your case will be a success, contact us for a consultation.
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