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.
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).
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.
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.
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 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:
v
Removing the Conditions on Permanent Residence Based on
Marriage
v
Marriage of United States Citizens Abroad
v
The Battered Immigrant Women Protection Act of 1999
The information in this article
is of a general nature and may not apply to any specific or particular
circumstance. It is not to be construed as legal advice and does not establish
an attorney-client relationship between The Law Offices of Cyrus S Nallaseth
and the viewer.