Powers Immigration Law


Immigration to the United States Based on Marriage to a United States Citizen or Lawful Permanent Resident

When a United States citizen or Lawful Permanent Resident (LPR) marries a foreign national because of love and the intention to build a life together,  the foreign national may wish to immigrate to the United States so that the couple may build their life together in the United States. Generally speaking, a U.S. citizen or permanent resident is able to confer immigration benefits (a green card) to his foreign national spouse.


Keep in mind that approval is not guaranteed or automatic. It is important to be aware that these petitions are scrutinized not only to ensure that the marriage is bona fide (legitimate) but also to make sure it was not entered into for the sole purpose of obtaining immigration benefits.


Outlined below is general information about the process of sponsoring a foreign national spouse. The information in this article is not intended to be legal advice. If you have questions specific to your case, to schedule a consultation, please call (704) 556-1156 for the Charlotte office or (828) 394-1196 for the Hickory office.


United State citizen petitioners

Under immigration law, the spouse of a U.S. citizen is regarded as an "immediate relative" of the U.S. citizen. Immediate relatives of U.S. citizens are given preferential treatment and they are allowed to immigrate in unlimited numbers and without the delay other family members may face. There are two possible paths this type of petition may take. The paths are outlined below.


If the foreign national spouse is already in the United States and lawfully entered the country, the U.S. citizen may file a petition and the foreign national spouse may file an application to adjust status to permanent resident at the same time without the need for the foreign national to leave the country. If the petition and adjustment of status application are approved, the foreign national spouse adjusts to the status of a U.S. permanent resident. There are a few exceptions to this policy. To review frequently asked questions about the adjustment of status process, click here.


If the foreign national spouse is outside the United States, the U.S. citizen may file a petition. Once the petition is approved, the National Visa Center will send paperwork to the U.S. citizen. After the necessary forms are completed, the foreign national spouse applies for an immigrant visa with the U.S. embassy overseas. On the day that the foreign national spouse enters the United States on his/her immigrant visa, (s)he becomes a U.S. permanent resident.


Lawful Permanent Resident (LPR) petitioners

The foreign national spouse of a Lawful Permanent Resident is classified as a beneficiary in the Second Preference category. Currently the wait for a visa in this category is between two (2) and three (3) years (visit the Immigration Updates page for current priority dates). Similar to the petition of a U.S. citizen, there are two possible paths this type of petition may take. Both paths are outlined below.


If the foreign national spouse is already in the United States with a nonimmigrant visa, the permanent resident may file a petition for the foreign national spouse. The foreign national spouse has to wait for the priority date to become current before (s)he may apply to adjust to permanent resident status. While waiting for the priority date to become current, the foreign national spouse must maintain a valid nonimmigrant status. Once the priority date becomes current, if the adjustment of status application is approved, the foreign national spouse will become a U.S. permanent resident. To review frequently asked questions about the adjustment of status process, click here.


If the foreign national spouse is outside the United States, the U.S. permanent resident may file a petition. Once the immigration petition is approved and the priority date is current, the National Visa Center will send paperwork to the U.S. citizen. After the necessary paperwork is completed, the foreign national spouse must apply for an immigrant visa at the U.S. Embassy overseas. On the day the foreign national spouse enters the United States on his/her immigrant visa, (s)he becomes a permanent resident.



Who is a spouse for immigration purposes?

Section 3 of the Defense of Marriage Act (DOMA) specified that when federal legislation uses the term ‘marriage’ or ‘spouse’ the terms should be interpreted to mean “only a legal union between one man and one woman.” Based on this, U.S. Citizenship and Immigration Services only approved petitions for opposite sex spouses. In June 2013, there was a fundamental change.

On June 26, 2013, the Supreme Court held in United States v. Windsor that section three of DOMA is unconstitutional. USCIS will now look to the law of the place where the marriage took place when determining whether there is a valid marriage for immigration purposes instead of automatically denying petitions of same-sex spouses. “That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances.” See, USICS FAQ.

 

Conditional Residence

If the couple has been married for less than two (2) years when the foreign national spouse is granted permanent resident status (green card), the foreign national spouse will receive conditional permanent resident status. Generally speaking, to remove the conditions on the permanent residence, both spouses must apply together to remove the conditional status within 90 days before the expiration date on the conditional resident card (green card). If they fail to apply to remove the condition during this time, the foreign national spouse's resident status will be terminated and (s)he may be subject to removal from the United States.




 

The article above provides general information about the process of sponsoring a spouse and is not intended to be legal advice. If you have questions specific to your case, to schedule a consultation with an immigration attorney, please call (704) 556-1156 for the Charlotte office, (828) 394-1196 for the Hickory office, or click here.



 




 

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Powers Immigration Law ♦ tanya.powers@tmpowerslaw.com

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