MARRIAGE
Many immigrants are under tremendous pressure from
their elders to marry within their own community.
Very often, the person travels back to his original
country to find a suitable partner and the marriage
takes place outside the United States. The original
immigrant now has to file a petition to sponsor his/her
spouse so as to enable them to live together in the
U.S.
U.S. Citizens
If the immigrant has already obtained his U.S. citizenship
before the marriage, then the spouse can migrate to
the U.S. immediately as there is no limited quota
for the spouse of a U.S. citizen. However, it may
still take about nine months to a year to complete
all the formalities. A U.S. citizen may also sponsor
a fiancé/e, but must marry him/her within ninety
days of the alien fiancé/e’s arrival
into the United States.
The alien spouse is issued a ‘conditional’
green card for a period of two years. At the end of
this period, for the conditions to be removed, the
marriage must still be ‘alive’. The couple
must show that they have been living together in the
same place, share their financial assets, travel together
and if possible, have had children. These conditions
have been placed to avoid ‘fraud’ or ‘sham’
marriages, where people enter into a convenience marriage
only for the much desired green card.
Removal of the above condition, must be applied for
by filing Form I-751 within a 90 day period before
expiration of the two years. The Immigration and Naturalization
Service may sometimes take two years or more to approve
the I-751. However, after being resident in the U.S.
for 3 years, the spouse of a U.S. citizen is eligible
to apply for naturalization. He/she may put in his/her
papers for naturalization two years nine months after
receiving his/her lawful permanent status. The INS
advises that it is permissible for a conditional resident
to apply for naturalization while the I-751 application
is still pending with the INS. However, it is likely
that the INS will keep the naturalization application
pending until the conditions are removed. Conditional
resident spouses can therefore apply for citizenship
in a timely manner, and hopefully have their I-751
applications approved before the citizenship interview.
The Legal Immigration Family Equity (LIFE) Act, which
was enacted on December 21, 2000, provided several
immigration benefits, one of which was the provision
of a new ‘K’ visa, which expands the K
visa status to include the spouse(K-3), who is waiting
abroad for an immigrant visa, and the spouse’s
dependant children(K-4).
The INS has implemented this provision as of August
14, 2001. Click here for further details.
Legal Permanent Residents (Green Card Holders)
If the immigrant is a legal permanent resident (Green
Card holder), he/she may also sponsor his/her spouse,
but this is subject to a quota that is heavily oversubscribed
resulting in a wait of about five years, before the
alien spouse can emigrate. It is not possible for
a green card holder to sponsor a fiancé/e.
While the alien spouse is waiting for his/her petition
to be approved, theoretically, he/she is able to enter
the U.S. on a temporary visitor or student visa or
a temporary work permit. However, in reality, the
consular officials very often refuse these visas,
as all non-immigrant visa applications are considered
to be intending immigrants. If the spouse is already
in the U.S. on either of these visas before the marriage,
it is easier for him/her to stay on during the period
while the petition is pending.
However, the LIFE Act, of December 21, 2000, provided
several immigration benefits, one of which was the
provision of a new ‘V’ visa which allows
certain spouses and minor children of LPRs to reside
and work in the U.S. while waiting to obtain immigrant
status.
The INS has implemented this provision as of September
7, 2001. Click
here for further details.
H-1B Visa Holders
It is actually easier for a holder of an H-1B visa
to marry and bring his/her spouse to the U.S. than
it is for a legal permanent resident. This is because,
the H-1B visa, being a temporary non-immigrant visa
allows the holder’s spouse (and children under
21, if any) to be issued an H-4 visa that would enable
him/her/them to come to the U.S. immediately. The
H-1B visa allows for ‘dual intent’, i.e.
a person may enter the U.S. on a temporary basis and
then lawfully apply for permanent residence. Therefore,
once the individual obtains his/her permanent residence
status, the foreign spouse also obtains it derivatively.
Breakdown of Marriage
Sometimes an alien spouse finds it extremely difficult
to adjust in a new country that has such a diverse
culture from his/her own. If the U.S. spouse is understanding
and guides the alien through the steps of adjustment,
the marriage has a far greater chance of being successful.
However, in many cases, this is not so and leads to
isolation and frustration due to a lack of understanding
of each other’s ways and requirements.
If a marriage breaks up before the two-year period
is over, very often the U.S. spouse does not co-operate
in filing the joint petition for removal of conditions
for the alien’s green card. However, if the
foreign spouse still wishes to hold onto his/her green
card, he/she may apply for a waiver for the above
under the following conditions:
a) the marriage was entered into in good faith and
was not a ‘sham’ or ‘fraud’
marriage for purposes of the green card.
b) the marriage was annulled or ended through divorce.
c) if the marriage has not ended in any of the above
ways, but the alien spouse can establish that he/she
has been subjected to extreme physical or mental cruelty.
d) extreme hardship would result if the spouse was
deported.
Spouse Abuse
Spouse abuse may be physical, mental, economic or
threatening. Most victims of domestic abuse are unaware
of their ability to retain the green card even though
the sponsoring spouse does not co-operate. The battered
spouse may file for the green card on his/her own
without the help of the U.S. citizen/resident. However,
the spouse must be able to establish that he/she married
in good faith, has good moral character and has been
subject to extreme mental or physical abuse. This
could be proved in the form of informing the police,
going to an emergency room, entering a shelter or
getting a protection order. Mental cruelty could be
proved with the help of a mental health professional.
Another point that would help in retaining the green
card would be to prove that extreme hardship would
result if the alien were to be deported. However,
this point is not very east to prove.
It is, therefore, very important to know the person
well before entering into a marriage. Certain cultures
and peer pressures do not allow an intimate friendship
before marriage, but when venturing into a new and
strange place, it is better to be a little knowledgeable
about what you are getting into. A green card may
not be worth the mental and/or physical torture that
a person may sometimes have to go through.
Related Links:
- Removing
the Conditions on Permanent Residence Based on Marriage
- Marriage
of United States Citizens Abroad
- The
Battered Immigrant Women Protection Act of 1999
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