Marriage

 

 

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. USCIS advises that it is permissible for a conditional resident to apply for naturalization while the I-751 application is still pending with it. However, it is likely that USCIS 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 dependent children(K-4). 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 long wait, 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.

 

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. 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:

  1. the marriage was entered into in good faith and was not a ‘sham’ or ‘fraud’ marriage for purposes of the green card.
  2. the marriage was annulled or ended through divorce.
  3. 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.
  4. 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.

 

INS InfoLinks :

 

  1. Removing the Conditions on Permanent Residence Based on Marriage
  2. Marriage of United States Citizens Abroad
  3. 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 Jethmalani & Nallaseth and the viewer.