Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 USA

Telephone:  +334.832.9090
E-mail: CLICK HERE

 Copyright by Boyd F. Campbell, All Rights Reserved

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Please note that marriage to a U.S. citizen does not automatically entitle a foreigner (alien or non-U.S. citizen) to U.S. citizenship.  Persons in the United States illegally who marry U.S. citizens must eventually leave the United States, undergo consular processing in their home country, obtain a "waiver of grounds of inadmissibility", and re-enter the United States legally.  Please consult a qualified immigration lawyer to undertake this difficult and stressful process. 

Immigrant visas for spouses of U.S. citizens

By BOYD F. CAMPBELL
Attorney and Civil Law Notary

    A U.S. citizen may file an alien relative petition on behalf of his or her foreign-born spouse, and, if the spouse meets the eligibility requirements for the immigrant visa ("green card"), the visa is made available to the spouse "immediately," based upon this close family relationship.
    Often, the real issue in a case based upon marriage is not whether the spouse can get the visa, but whether the spouse is eligible to either adjust his or her status in the United States to that of an immigrant, or successfully complete consular processing for the immigrant visa in a foreign country.  Currently, there are no immigration benefits for foreign nationals who enter the United States illegally, i.e., "without inspection." There is a waiver process, however, and I do handle waiver cases, but they are some of the most difficult immigration cases that lawyers handle and they are very stressful for the lawyer's clients.
    To get approval for the alien relative petition, both the U.S. citizen and the spouse should be of marriageable age, be free to marry (never married, or have proof of divorce or of a deceased spouse), and provide proof that a valid marriage exists (the marriage certificate, for example) to U.S. Citizenship and Immigration Services (USCIS, formerly the INS), or to a U.S. consular post in a country outside the United States that accepts alien relative petitions.

Marriage fraud factors

    Other issues involving marriage revolve around the "marriage fraud factors" passed by Congress in 1986 to discourage "sham" or marriages of convenience to get around the immigration laws and allow foreigners to illegally obtain federal immigration benefits.   A list of factors that contribute to a determination by a USCIS examining officer that the parties got married to get around the immigration laws follows:

    * Rapid sequence of events (marriage, divorce, claimed death prior to filing petition, adverse action by USCIS).
    * Age difference -- 10 years or more.
    * Prior marriages by petitioner to aliens or by aliens to U.S. citizens or lawful permanent resident aliens.
    * Marriage outside ethnic or religious group.
    * Marriage to "entry without inspection" alien not of the Western Hemisphere.
    * Witnesses to marriage are same nationality as beneficiary.
    * Beneficiary and petitioner claim separate address; beneficiary departed U.S. after marriage.
    * Confidential marriage.  This is a special proce-dure in California where the parties can request that their marriage not be recorded in the public record.
    * Beneficiary has minor children residing abroad.
    * Inconsistent or nonexistent petitioner identification.
    * Excessive documentation in support of the application (e.g., Forms I-864, Affidavits of Support, submitted by relatives other than spouse).

    Many people try to navigate the federal bureaucracies, including USCIS, the Department of Homeland Security and Department of State and its overseas consulates, on their own.  If you are doing this yourself, you should not "over-document" the case.  Just prepare the required documents and provide the letters, photographs, insurance and financial documents, etc., that verify the length and sincerity of the relationship.  Also, if you have not yet been married two years when you apply, do not fail to file for removal of the condition of the foreign spouse's conditional permanent resident status within 90 days before the date he or she got that status from USCIS.  The expiration date of the conditional resident card (also called a "green card") should be on the front of the card. 
    Common law marriage is recognized in Alabama, and 15 other states allow some form of common law marriage.  Marriage laws in the United States are under the exclusive jurisdiction of state legislatures.  The federal government has no business telling you whom you can and cannot marry.  If you are married at common law, you can rely on your immigration lawyer to help you provide the documentary evidence necessary to prove it.  USCIS may even deny your alien relative petition and you may have to go to federal court to force USCIS to comply with the law of your state. 
    Finally, you should be aware that U.S. immigration law and federal bureaucratic and administrative procedures change frequently and dramatically because Congress has passed so much patchwork legislation during the past 30 years.  If you got a "green card" even 10 to 15 years ago, you would be amazed how the process has changed and how difficult our federal government and Congress now make it to immigrate the "legal way".  That's certainly one good reason to consult a qualified immigration lawyer about any new visa application process.

Adjustment of status (the 'green card')

    If the spouse is in the United States, the U.S. citizen spouse files Form I-130, Petition for Alien Relative, and the alien spouse files Form I-485, Application to Register Permanent Residence or Adjust Status, along with applications for employment authorization and travel documents.  Following is a short list of some of the evidence required to support an I-485 application:

    Documentation showing joint ownership of property
    Lease showing joint tenancy of a common residence
    Documentation showing commingling of financial resources
    Birth certificates of children born to the petitioner and beneficiary
    Affidavits of third parties having knowledge of the validity of the marital relationship
    Other documentation establishing that the marriage is bona fide and was not entered into in order to evade U.S. immigration laws

    Within 90 days before second year of the foreign spouse being granted conditional permanent resident (CPR) status, the parties must apply for removal of the condition with a USCIS Service Center, and may be scheduled for an interview at a USCIS district office. Depending upon the country of origin of the foreign spouse, this interview can be either easy or difficult. USCIS examining officers look for "marriage fraud" factors, particularly if the country of origin of the foreign spouse is what is deemed a "high fraud" country or is considered a sponsor of terrorism.
    If the marriage ends within the two years, or the parties are separated, the foreign spouse can still file for removal of conditions, either jointly with the U.S. citizen spouse, or alone.
    If USCIS issues an order to show cause why the spouse should not be deported, the matter becomes more serious and should be examined by a qualified immigration lawyer.
    Lawful permanent resident aliens may also file immigrant visa petitions on behalf of their spouses and children, but all such petitions are subject to minimum four- to six-year waiting periods for the availability of an immigrant visa.  The waiting periods for visas for immediate family members may be found in the Visa Bulletin published by the U.S. Department of State.

Waivers for aliens illegally present in U.S.

    Aliens in the United States illegally may marry, but they may not obtain immigration benefits under normal procedures above.  They must eventually leave the United States and obtain a "waiver of grounds of inadmissibility," a difficult, time-consuming and stressful process that requires careful planning and -- in my opinion -- representation by a qualified immigration lawyer.  Illegal aliens who marry U.S. citizens may be entitled to a "waiver".  A "waiver" is a promise from the American government that "all has been forgiven" and, even though youwere previously inadmissible or removable, you are now allowed to legally re-enter the United States and reside in the United States legally and lawfully. There are many forms of such "waivers" and most need to be made together with anotherapplication to come here or remain here, such as an alien relative petition filed with USCIS by a U.S. citizen spouse.
    Extreme hardship is the legal standard that the waiver applicant must prove in order for the waiver to be granted. Immigration law
mentions many levels of hardship, ranging from "extreme" to "extreme and unusual," but there is no exact definition of "hardship." Generally it means "suffering more and differently than other people in the same situation." Although some of the more difficult and stressful cases I handle, it is great to see the spouse of
a client return with an immigrant visa and permission to remain in the United States with his or her family.
    Most people who entered without having been inspected at the border, and who have remained here, are
not allowed to get their green card in the United States, but must apply through a U.S. consulate in their native country. For Mexico that is Ciudad Juarez, the largest and busiest consulate in the world.  There is a waiver branch within the consulate.  The bar to re-entry does not come into play until after you leave. However, even if you are married to a U.S. citizen, or if you have U.S. citizen children, you cannot get your
green card inside in the United States if you entered without inspection.
    Say you were born in Mexico, you have been married to a U.S. citizen for two years, and that your spouse
has filed an immigrant petition for you on Form I-130 (Petition for Alien Relative). You last entered the United States five years ago without a visa and with the help of a Coyote. In this case, even if your spouse's I-130 is approved, your only option under current law to get a green card is to schedule an appointment with the U.S. embassy in Cuidad Juarez. But that means that, at the same moment you leave the United States, you are barred from reentering for 10 years. Your other choice of course is to do
nothing, remain in the United States illegally and hope you don't get caught.
    Because your spouse is a U.S. citizen, however, you may file a waiver which, if approved, will allow you to
return to the United States immediately.

    WARNING: Family, friends, fellow workers, and acquaintances are good sources of bad advice about immigration law and application procedures.  Your future in the United States is too important to trust to someone who may want to help you but really doesn't know how.  U.S. Citizenship and Immigration Services considers these forms legal cases for adjudication under the federal Administrative Procedures Act.  You may need the help of a qualified immigration lawyer.  If you do not know one, go to www.ailalawyers.com or send your email message to CLICK HERE .

    Boyd F. Campbell has practiced immigration and nationality law in Montgomery, Alabama, since 1988.  He is a member of the  American Immigration Lawyers Association (AILA).  He served as Chair of the Immigration Law Committee of the American Bar Association's General Practice / Solo and Small Firm Lawyers Section and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998.  Mr. Campbell was Chair of the International Law Section of the Alabama State Bar from 2000 to 2002.  In August, 2001, he was appointed Alabama's first practicing civil law notary by the Alabama Secretary of State.  See www.nacln.org.  He is included in the 2010 edition of  The Best Lawyers in America, published by Woodward/White, Inc., in the field of immgration law.  Best Lawyers is a subscription service available on the World Wide Web at www.bestlawyers.com. In 2006 he became General Counsel of the Alabama Center for Foreign Investment, L.L.C. (ACFI), a USCIS-approved regional center.  When USCIS approved an expansion of ACFI's territory in October, 2009, ACFI was re-branded America's Center for Foreign Investment, L.L.C.

Questions or comments about this article may be directed to:
Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 USA

Telephone:  +334.832.9090
Send email: CLICK HERE

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