Category Archives: adjustment of status

From K-1 Fiancé(e) Visa to Green Card

Posted on April 30, 2015 | Comments Off on From K-1 Fiancé(e) Visa to Green Card

engaged 5-1-2015When a foreign national is engaged to marry a U.S. citizen, he or she may travel to the U.S. on a K-1 fiancé(e) visa to get married and eventually become a permanent resident (green card holder).

The K-1 visa is not just for modern-day “mail-order brides” who met their American fiancé(e) through international matchmaking services or international marriage brokers.

The K-1 is also for couples who met each other through mutual friends and family members, chance encounters, or online dating sites that do not charge fees for international matchmaking services. K-1 cases can involve couples who were born in the same countries, attended the same college, or grew up in the same neighborhood. The K-1 visa is available to both opposite-sex couples and same-sex couples.

The immigration process starts with the filing of the K-1 visa petition, continues with the K-1 visa application, and ends with the filing of the Form I-485 application for adjustment to lawful permanent residence after the couple marries.

The general process is as follows: 

STEP #1 – FILING THE K-1 VISA PETITION

U.S. Citizen Files the Form I-129F Petition

To start the process, the U.S. citizen must file a Form I-129F petition, including filing fee and supporting documents, with the USCIS office that processes these case.

If the fiancé(e) has accompanying children younger than 21, the U.S. citizen must include their names on the Form I-129F to allow them to apply for a derivative K-2 visa.

Basic Requirements

The U.S. citizen must present evidence showing the eligibility requirements are met, such as a birth certificate showing U.S. citizenship, a written statement of intent to marry within 90 days of the fiancé(e)’s arrival in the U.S., and photographs of the couple together and airline tickets showing they met during the two years prior to filing the petition.

(USCIS may waive the two-year meeting requirement if it receives evidence showing this would result in extreme hardship to the U.S. citizen or would violate traditional marriage customs of either party. But this waiver is very difficult to get.)

Additional Requirements

The International Marriage Broker Regulation Act (IMBRA) imposes additional requirements and limitations. The Form I-129F instructions provide detailed information about IMBRA.

An international marriage broker (IMB) is a business that charges fees for dating, matrimonial or matchmaking services or social referrals for U.S. citizens (or permanent residents) and their foreign national clients. An example is Foreign Affair, the largest online international matchmaking service that features thousands of purportedly single women on its website, LoveMe.com.

Petitioners who met their fiancé(e) through an IMB must state this on the Form I-129F. They must also provide a signed, written consent form that the IMB obtained from the foreign national authorizing the release of personal contact information to them.

A U.S. citizen who previously filed K-1 petitions for two or more beneficiaries (at any time) or who received K-1 approvals within the two years prior to filing the current K-1 must apply for a waiver. The petitioner may submit with the Form I-129F an affidavit explaining the reasons for requesting the waiver.

The Adam Walsh Act Child Protection and Safety Act also prevents a U.S. citizen who has been convicted of a “specified offense against a minor” from filing a Form I-129F petition, unless he proves he would pose no threat to the foreign citizen fiancé(e) or accompanying children.

If applicable, USCIS must provide to the U.S. Consulate the petitioner’s criminal records and information related to certain crimes, such as domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse and stalking.

USCIS conducts a background check for national security, criminal records, and other information on both the petitioner and beneficiary, which can lead to significant delays in the Form I-129F processing.

USCIS Processes Petition and, If Approved, Forwards it to NVC

Upon receiving the Form I-129 petition, filing fee, and supporting documents, USCIS will issue a receipt notice to the petitioner.

During the processing, USCIS may issue a request for additional evidence and will normally give the petitioner 87 days to respond. If the petitioner does not respond, USCIS may issue a decision (likely a denial) based on the evidence in the record.

If USCIS denies the petition, the decision can be appealed to the Administrative Appeals within 33 days or the U.S. citizen may file a new petition with additional evidence.

If USCIS approves the petition, it then forwards it with an approval notification to the National Visa Center (NVC). An approved Form I-129F petition is valid for four months from the date USCIS issues the decision. The petition must continue to be valid at the time the K-1 visa is issued.

If the K-1 visa is not issued before the validity date expires, the U.S. Consulate may revalidate the petition in four-month increments as long as it is convinced the parties are still legally free to marry and intend to marry within 90 days of the foreign national’s arrival in the United States.

NVC Processes the Case and Forwards it to the U.S. Consulate

After processing the case, the NVC will forward it to the U.S. Consulate that has jurisdiction over where the fiancé(e) lives. The NVC will send a letter to the petitioner, indicating the case number and stating that it forwarded the petition to the U.S. Consulate.

STEP #2 – FILING THE K-1 VISA APPLICATION

After receiving the approved petition, the U.S. Consulate will send instructions to the foreign national to apply for a K-1 visa.

Foreign National Applies for K-1 Visa

The applicant must bring the following forms and documents to the visa interview:

Completed Form DS-160, Online Nonimmigrant Visa Application. The foreign national applying for the K-1 and any eligible children applying for K-2 visas must: (1) complete Form DS-160 online and (2) print the DS-160 confirmation page to bring to the interview.

An unexpired passport that is valid at least six months beyond the intended period of stay in the U.S. (unless there are country-specific exemptions).

Divorce or death certificate(s) of any previous spouse(s) for both the U.S. citizen petitioner and visa applicant.

Police certificates from  present country of residence and all countries where the applicant has lived for six months or more since age 16. (Police certificates are also required for accompanying children age 16 or older.)

Medical examination, preferably including vaccination. Prior to the interview, applicants must schedule and complete a medical examination by an authorized panel physician. The U.S. Consulate will provide instructions.

Vaccinations are not required for K visas, but will be required when adjusting to permanent resident status following marriage to the U.S. citizen petitioner. Therefore, applicants are encouraged to complete the vaccinations at the time of the medical examination.

Proof of financial support. During the visa interview, applicants must prove they have sufficient financial support and will not become a public charge in the United States (i.e receive government benefits or welfare).

The U.S. Consulate may request a Form I-134, Affidavit of Support, plus proof that the U.S. citizen petitioner’s income is 100% of the federal poverty guideline.

Consular officers are also aware the U.S. citizen must submit a Form I-864, Affidavit of Support, when the foreign national applies for a green card following the marriage. So they may require the applicant to show the U.S. citizen petitioner’s income is 125% of the federal poverty guideline (unless the petitioner is on active duty in the U.S. Armed Forces.)

Additional items include two passport photographs of the applicant, evidence that the relationship with the U.S. citizen petitioner is genuine, and payment of the non-refundable visa application fee.

Foreign National Attends Visa Interview

At the visa interview, the applicant will be asked questions about the relationship, including how the couple met,  how often they communicate with each other, and when they plan to marry.

The U.S. Consulate may also require the applicant to present additional documents showing the couple continues to share a bona fide relationship, especially if several months have passed since USCIS approved the Form I-129F petition.

U.S. Consulate Issues Decision

Discrepancies between the information in the K-1 petition and the applicant’s circumstances might cause the consular officer to question whether the relationship is bona fide or might cause the U.S. citizen petitioner to choose not to proceed with the marriage. These include the visa applicant having one or more children not named in the petition, a prior undisclosed marriage (even if it has been annulled or ended by divorce or death), or a current pregnancy.

When there are discrepancies, consular officers may use their discretion in deciding whether to return the K-1 petition to USCIS. They should, however, first contact the U.S. citizen to verify whether he or she was aware of the particular circumstance(s) and whether he or she still intends to proceed with the marriage. If they receive a satisfactory answer from the U.S. citizen, consular officers do not have to return the petition to USCIS.

Consular officers will return the K-1 petition to USCIS for reconsideration if they doubt the relationship is genuine or if the U.S. citizen indicates that he or she no longer intends to go forward with the marriage.

The Consulate also conducts background checks on the K-1 visa applicant, including fingerprints and other checks similar to those conducted by USCIS, as well as checks of its systems and other interagency databases.

The Consulate will not issue the K-1 visa to a foreign national who is inadmissible to the U.S., unless he or she qualifies for a waiver.

Inadmissibility grounds include having a communicable disease, a dangerous physical/mental disorder, a drug addiction, or a criminal record (including crime involving moral turpitude, drug trafficking, or prostitution). They also include previous violations of U.S. immigration laws (e.g. 3/10 year bar due to accrual of unlawful presence in the U.S. that lasted more than 180 days) and failure to show he or she will not become a public charge.

If the Consulate approves the case, the foreign national and accompanying children will receive a K-1 visa and K-2 visas, respectively. The visa is valid for six months and is good for one entry into the U.S. The consular officer will give the visa holder a sealed envelope containing a copy of the petition and other paperwork to present at the U.S. port of entry.

STEP #3 – FILING THE APPLICATION FOR ADJUSTMENT TO LAWFUL PERMANENT RESIDENT STATUS

Marriage Within 90 Days

The couple must marry within 90 days after the K-1 visa holder enters the U.S. The K-1 status cannot be extended. If the marriage does not occur within 90 days, the foreign national becomes removable from the United States. He or she may still marry the U.S. citizen petitioner after 90 days, but an I-130 immigrant petition must be filed to continue the green card process.

If the foreign national leaves the U.S. before marriage, he or she will have to apply for a new K-1 visa.

Foreign National Submits Form I-485 Application to USCIS After Marriage

Once married, the foreign national becomes an immediate relative (i.e. spouse of a U.S. citizen). He or she may then submit the Form I-485 application to adjust to permanent residence, with filing fee and supporting documents, to USCIS.

While the adjustment application is pending, the person may also file for advance parole to travel outside the U.S. and re-enter the U.S. before the green card is issued. He or she may also apply for employment authorization to lawfully work in the U.S. while the green card application is pending.

(NOTE: A K-1 visa holder may also apply for a work permit. But it will be valid for only 90 days following arrival in the U.S., and USCIS takes several weeks or months to process it. So, from a practical standpoint, it’s better to just wait to file for the work permit based on a pending Form I-485 application.)

After receiving the Form I-485 application, USCIS will issue a receipt notice and then a biometrics appointment notice instructing the foreign national to get his photograph and fingerprints taken at a USCIS Application Support Center. In some cases, USCIS may issue a Request for Evidence to continue processing the application.

Form I-485 Interview with USCIS

It normally takes at least 3 to 6 months for USCIS to schedule a Form I-485 interview. But in some cases, a year or more could pass before the interview occurs.

The green card applicant will receive the interview notice, with instructions on the documents to bring.  He or she will also be instructed to bring the U.S. citizen spouse so the USCIS officer may interview them both.

The officer will ask questions to determine whether the applicant’s marriage to the U.S. citizen is bona fide (i.e. entered into with the intent of establishing a life together as spouses, and not solely or primarily for immigration benefits). The officer will also go through the questions on the Form I-485 to verify whether the applicant is admissible to the United States.

USCIS may waive I-485 interviews for K-1 visa entrants. But the documentation must be strong enough to get an approval without an interview.

USCIS Issues Decision

USCIS will approve the Form I-485 application and issue the green card if it determines the applicant’s marriage to the U.S. citizen is bona fide and the applicant is admissible to the United States (or qualifies for a waiver of inadmissibility).

If the marriage is less than two years old at the time USCIS approves the Form I-485, foreign nationals will be granted “conditional” permanent residence. This means they will have to file a Form I-751 petition to remove the conditions on the permanent residence before the green card expires, but no earlier than 90 days before the expiration. If the couple divorces, the green card holder may file for a waiver of the joint filing requirement to get the conditions removed.

If USCIS denies the Form I-485 application, it may issue a Notice to Appear in removal proceedings. The applicant may renew the Form I-485 before an immigration judge in removal proceedings. Otherwise, the applicant may re-file the Form I-485 with USCIS or ask USCIS to reopen and/or reconsider its decision. There is no appeal process.

* * *

The K-1 was created to allow the foreign national fiancé(e) to enter the U.S. more quickly and be spared a long separation from the intended U.S. citizen spouse. But the process still requires a lot of documentation and can involve complications and setbacks. Furthermore, the K-1 holder is subject to removal from the United States if the I-485 process is not completed successfully or is not initiated at all.

An experienced immigration attorney can help you with filing the K-1 visa petition, applying for the K-1 visa application, and filing for permanent residence. Although information is readily available online, a skilled attorney knows how to deal with unique situations, prevent unnecessary delays, and maximize the chances of approval in the K-1 to green card process.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: J.K. Califf

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Posted in adjustment of status, bona fide marriage, K-1 visa, marriage fraud, The Legal Immigrant - Immigration Blog

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K-1 fiancé(e) visas aren’t just for mail-order brides (but still carry strict requirements)

Posted on April 27, 2015 | Comments Off on K-1 fiancé(e) visas aren’t just for mail-order brides (but still carry strict requirements)

fiance 4-27-15U.S. citizens may bring their foreign national fiancé(e) living abroad to the United States by filing a K-1 visa (Form I-129F) petition.

Even though the K-1 is a nonimmigrant visa, it’s one of the fastest ways for a foreign national to become a permanent resident of the United States.

The K-1 is often associated with modern-day “mail-order brides” (women from less developed countries who post their profiles online — usually on international agencies’ websites — in search of a husband from developed countries, such as the United States).

Common concerns about international relationships are that the woman is a victimized “mail-order bride,” lured away from her home country by a potentially abusive American spouse, or the foreign spouse is a scammer who preys on the American suitor for financial gain or for immigration benefits.

The K-1, however, is not just for “mail-order brides” or for international couples who might have met through an international marriage broker.

The K-1 is also for foreign men and women who met their U.S. citizen fiancé(e)s in other ways, such as online chatting, chance encounters while visiting each other’s countries, and introductions by family members or mutual friends. The K-1 is also for couples who are from the same countries and might have courted each other before one became a U.S. citizen.

Regardless of how the engaged couple met, the K-1 visa application process is the same. Although there are additional restrictions in certain cases, the basic requirements are strict and apply to all.

Basic Requirements 

To qualify for a K-1 visa, the U.S. citizen petitioner and visa applicant must satisfy certain basic requirements. They are as follows:

Basic requirements for the K-1 petitioner (U.S. citizen)

1. You are a U.S. citizen by birth, naturalization, or derived citizenship.

You need to provide proof of your U.S. citizenship, such as a birth certificate, U.S. passport or naturalization certificate.  If you are a lawful permanent resident, you cannot file a K-1 petition to bring your fiancé(e) to the United States.

2. You are able to financially support your fiancé(e) so he/she is unlikely to become a public charge, i.e. receive government assistance or welfare.

U.S. Consulates typically require the K-1 visa applicant to submit a Form I-134, Affidavit of Support, from the petitioner.  On the Form I-134, petitioners must show they earn and/or own assets (e.g. bank accounts, real-estate property, stocks, bonds) that is at least 100% of the minimum income listed for their household size in the federal poverty guidelines.

U.S. consular officers, however, are aware that you will have to meet a higher, 125% requirement a few months later, after your fiancé(e) marries you and then applies for a green card . Therefore, the U.S. Consulate could insist that you meet the 125% requirement before it issues the K-1 visa. (The threshold is still 100% if the petitioner is on active duty in the U.S. Armed Forces.)

Basic requirements for the K-1 beneficiary (foreign national)

1. You are living outside the United States. Filing for a K-1 visa is not necessary or permitted if you are already in the U.S.

2. You do not have a criminal history that will make you inadmissible to the United States. In general, foreign nationals who are convicted of or who admit having committed a crime involving moral turpitude (other than a purely political offense) or a violation related to a controlled substance are inadmissible. There are exceptions and waivers available in some cases.

3. You have not violated U.S. immigration laws that will make you inadmissible to the United States. For example, if you were previously in the United States and overstayed your authorized status, this could affect your K-1 visa application.

4. You do not pose a health risk to the general public that will make you inadmissible to the United States. As part of the K-1 visa application, you will need to complete a medical examination and submit the results to the U.S. Consulate.

You may be denied a K-1 visa if you have a communicable disease of public health significance, lack required vaccinations, have or have had a physical or mental disorder that causes you to engage in behavior that might be harmful to yourself or others, or have a history of drug abuse or addiction.

Even if you have never been diagnosed with an alcohol- or drug-related health issue, a record of alcohol- or drug-related arrests or criminal offenses can result in your being found inadmissible on health grounds.

There are waivers available for all health-related grounds of inadmissibility except drug abuse and addiction.

Basic requirements for both the K-1 petitioner and beneficiary

1. You must have met in person, at least once within 2 years or 24 months of filing the K-1 petition.  Evidence may include your written declarations stating the exact date(s) you met; photographs of the two of you together; and copies of airline tickets and stamps in your passport showing you visited each other.

The petitioner can travel to the foreign citizen’s country; the foreign citizen can travel to the United States for a temporary visit (but getting a B-2 visitor’s visa will be challenging); or the couple can meet in a third country.

USCIS may grant a waiver of the in-person meeting requirement if the couple can prove:
a. It would violate strict and long-established customs of the U.S. citizen or fiancé(e)’s foreign culture or social practice; or
b. It would result in extreme hardship to the U.S. citizen (e.g. citizen has a serious medical condition that makes traveling difficult and the foreign citizen is unable to obtain a visitor’s visa to enter the United States).

Getting a waiver is usually difficult, so it’s better to do what you can to meet in person.

2. You must both be legally free to marry. This means you are both single, you submit proof of annulment or divorce from all prior spouses, or you provide proof that your prior spouse has passed away.

3. You must have a genuine intent to marry within 90 days of the K-1 visa holder arriving in the United States. Evidence of your intent to marry within 90 days of the foreign citizen’s arrival in the U.S. may include a declaration from both of you, correspondences with wedding planners, and wedding invitations. Because the K-1 visa processing time is uncertain, the couple also need to be flexible about the timing of the marriage.

The marriage must occur in a state where the marital union is legally permitted. For example, same-sex couples may not marry in a state that permits only opposite-sex marriages.

Additional Requirements

The International Marriage Broker Regulation Act of 2005 sets forth additional requirements. If you met through the services of an international marriage broker (IMB), you must state this on the Form I-129F and the fiancé(e) must be given a brochure about domestic violence.

An “international marriage broker” means a corporation, partnership, business, individual, or other legal entity, whether or not organized under U.S.  law, that charges fees for providing dating, matrimonial, matchmaking services, or social referrals between U.S. citizens or nationals or permanent residents and foreign national clients by providing personal contact information or otherwise facilitating communication between individuals.

U.S. citizen petitioners must also submit certified criminal records if they have ever been convicted of certain crimes, such as domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse and stalking.

The Form I-129F instructions provide detailed information about IMBRA requirements.

The Adam Walsh Child Protection and Safety Act of 2006 prohibits a U.S. citizen who has been convicted of any sexual offense against a minor child, under the age of 18, from filing a K-1 visa petition. A waiver to this restriction is possible, but is rare.  To get the waiver, the U.S. citizen must prove that despite the conviction, he or she poses no threat or harm to the fiancé(e).

Limitations of the K-1 Visa

Validity of the K-1 Petition Approval

The Form I-129F petition is valid for four months from the date USCIS approves it (or from the date of last action by the U.S. Consulate). During these four months, the couple should apply for the K-1 visa. But a U.S. consular officer can extend the validity of the petition in four-month periods if it expires before visa processing is completed.

Validity of the K-1 Visa

Fiancé(e)s have six months after the K-1 visa is issued to enter the United States. They may not enter the U.S. on an expired K-1 visa, which cannot be extended.

The K-1 is a single-entry visa, so it may not be used for travel abroad and re-entry into the United States.

Marriage Within 90 Days of Arrival

Following entry into the U.S. on a fiance(é) visa, the foreign national’s K-1 status cannot be extended. He or she must marry the U.S. citizen petitioner within 90 days of arriving in the United States before applying for a green card.  Fiancé(e)s who leave the U.S. before the marriage occurs will have to apply for a new K-1 visa.

If 90 days pass without the couple getting married, the K-1 visa will no longer be valid and the fiancé(e) will be considered “out of status”. He or she then becomes subject to removal from the U.S. and is likely to have other immigration problems.

If the couple still intends to marry after the 90 days and do get married, the U.S. citizen petitioner must file a Form I-130 concurrently with the foreign national’s Form I-485 application for adjustment to permanent resident status.

Marriage to the U.S. Citizen Petitioner (and no one else)

If the marriage does not occur or is terminated before the green card is granted, the K-1 visa holder may not adjust to permanent resident status or change to any other non-immigrant status. There are only a few exceptions, such as when the foreign national qualifies for certain types of immigration relief, such as asylum or an I-360, VAWA self-petition.

If the foreign national meets and marries another U.S. citizen, after entering the United States on a K-1 and divorcing the original K-1 petitioner, she must return to her home country and start over the process.

Multiple K-1s

Although the U.S. citizen may file an unlimited number of K-1 petitions, this complicates the process. The U.S. citizen may file a second K-1 visa petition over 2 years after approval of the first K-1 visa petition. If you want to file a K-1 petition in less than two years, you will have to apply for a waiver. If you have filed two or more K-1 petitions at any time in the past, you will need to apply for a waiver.

The foreign national may not file for multiple K-1 visas at the same time. If you have two different U.S. citizens filing a K-1 petition for you at the same time, the U.S. Consulate will return the petitions to USCIS and will not schedule you for a visa interview, even if USCIS approves both petitions.

K-1 Visa Featured in Entertainment Media

The TLC show 90-Day Fiancé and the documentary Love Me feature the lengths Americans and their foreign citizen fiancé(e)s must go to live together in the United States.

90-Day Fiancé: In this TLC show, U.S. citizens have filed K-1 visa petitions for their fiancé(e)s to travel to the U.S. to get married and live with them for the first time. The potential spouses are from various countries, including Russia, the Philippines, Colombia, Ukraine and Brazil.

Love Me: This documentary follows Western men and Ukrainian women as they embark on an unpredictable and riveting journey in search of love. Each character’s experience exposes the myths and realities of the “mail-order bride” industry, while also exploring the much deeper, human story that is too often overlooked. Two international couples end up going through the K-1 visa process.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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 Photo by: Daniel Lee

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Posted in adjustment of status, bona fide marriage, green card, immigrant visa, K-1 visa, marriage fraud, The Legal Immigrant - Immigration Blog

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Same-Sex Married Couples: Unique Challenges in Marriage-Based Immigration

Posted on March 30, 2015 | Comments Off on Same-Sex Married Couples: Unique Challenges in Marriage-Based Immigration

When it comes to U.S. immigration matters, same-sex married couples are to be treated exactly the same as opposite-sex married couples. This was not the case prior to June 2013, when the U.S. Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional.

Following the Court’s ruling in United States v. Windsor, USCIS and U.S. Consulates made it clear that lesbian, gay, bisexual and transgender (LGBT) immigrants may obtain green cards and immigrant visas based on same-sex marriages to U.S. citizens or permanent residents. Nevertheless, same-sex married couples still face unique challenges in the immigration process.

1. The marriage must occur in a U.S. state or in a foreign country where same-sex marriage is legal

In Windsor, the Supreme Court overturned section 3 of DOMA, which defined the word “marriage” as “a legal union between one man and one woman as husband and wife,” and the word “spouse” as “a person of the opposite sex who is a husband or a wife.”

To date, since the Windsor ruling, 37 states plus Washington D.C. have fully legalized same-sex marriages. In January 2015, the Supreme  Court granted review of cases from four states – Kentucky, Michigan, Ohio and Tennessee – on the question of whether the U.S. Constitution gives same-sex couples the right to marry no matter where they live or whether states may limit marriage to a union only between a man and a woman. The Court is set to hear oral argument on this issue in late April. [UPDATE: On June 26, 2015, in a 5-4 decision, the Court ruled that same-sex marriage is a Constitutional right.]

Challenges arise when LGBT couples live in a state or country that does not recognize same-sex marriages, but are unable to travel to a place where such marriages are legal. The reasons include financial constraints, disability or illness, and difficulties obtaining the proper visa to travel to a country where same-sex marriage is legal.

Furthermore, some non-citizens are detained in immigration detention centers while they are in removal proceedings or are awaiting to be removed from the United States. If the LGBT non-citizen is detained in a state that bans same-sex marriage, (s)he might not be allowed to travel to a nearby state, in which same-sex marriage is legal, to get married to a U.S. citizen or permanent resident.

USCIS follows the “place of celebration” instead of the “place of residence” rule. This means the same-sex marriage counts for U.S. immigration purposes as long as it is valid in the state or country where it occurred (except in certain situations, such as polygamous marriages).

In general, you may still apply for immigration benefits if you married in a place that recognizes same-sex marriage, even if you live in a place that does not. If you are in a state or country that does not recognize same-sex marriages, it is essential that you exhaust all means to travel to and get married in a place that does.

2. Prior marriage to opposite-sex spouse could raise red flags

Like opposite-sex couples, same-sex couples must prove their marriage is bona fide, i.e. entered into with the intent of establishing a life together as spouses, and not solely to or primarily to obtain immigration benefits.

Prior marriages to persons of the opposite sex could cause USCIS or a U.S. Consulate to question whether a same-sex marriage is bona fide.

Prior marriages must be disclosed in green card and immigrant visa applications. Additional scrutiny is expected when the U.S. citizen or permanent resident filed an immigrant petition for a prior spouse. If the previous immigrant petition was denied or if marriage fraud was found in the prior case, it is especially important to consult an attorney before you file a new immigrant petition.

The USCIS or consular officer might also have concerns of marriage fraud if the same-sex marriage occurred shortly after termination of the opposite-sex marriage.  It helps to collect evidence showing that the prior marriage was bona fide, in the event the officer has concerns about it.

If the prior opposite-sex marriage involved no immigrant petitions (because both parties are U.S. citizens, for example), the officer might still question the true nature of the same-sex marriage. It helps to provide legitimate reasons for the prior opposite-sex marriage, such as being bisexual, not identifying as LGBT at the time of the prior marriage, giving in to societal pressure to “change” one’s sexual orientation, or satisfying parents’ expectations.

3. Individual USCIS and consular officers might hold hidden biases against LGBT couples

USCIS officers receive sensitivity training on LGBT and post-DOMA issues. They are directed to treat immigrant petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. USCIS approved the first immigrant petition filed by a U.S. citizen for his same-sex spouse on June 28, 2013, just two days after the Supreme Court’s ruling.

USCIS and consular officers are generally fair and reasonable. Nonetheless, individual officers can hold preconceived opinions about same-sex marriages that might affect their decisions. While the immigrant petition must be approved if the parties prove their marriage is bona fide, the issuance of a green card or immigrant visa is discretionary.

Same-sex marriages have led to routine grants of green cards and immigrant visas since 2013, but are still relatively new territory for USCIS and consular officers. There is no guarantee that the examiners will review the evidence presented by same-sex couples with the same standard they apply to opposite-sex couples.

A good solution is to have an attorney appear with you at the USCIS interview  or prepare a legal brief to the U.S. Consulate outlining the applicable policies and laws.

4. Same-sex couples often lack objective evidence of a bona fide marriage

While support for legalization of same-sex marriages is on the rise, some families, communities, cultures and countries still object to them. To date, several U.S. states continue to ban same-sex marriages. The lack of equal protection can create complications in immigrant petitions for same-sex spouses.

Affidavits from third parties, including relatives, friends and religious leaders, having personal knowledge of the bona fide nature of the marriage are key evidence in immigrant petitions. USCIS and consular officers can also inquire on whether family members or friends know about the marriage or attended  the marital ceremony. A same-sex couple who is not supported by family, friends or religious leaders might not be able to present such favorable evidence.

USCIS or U.S. Consulate investigators can also visit the couple’s claimed residence to verify whether they live together. During the site visit, the investigators may talk to neighbors, apartment building managers and landlords to determine whether they are aware of the marriage.

Some same-sex couples might not openly disclose their sexual orientation or reveal themselves as married, especially if they live in a place where same-sex relationship is banned or stigmatized. Worries about housing discrimination can also lead to the lack of a joint residential lease. These factors often make it harder to prove they live together and share a real marriage.

In certain states that ban same-sex marriage, the couple’s tax filing status for state income tax purposes must be listed as “single.”  There are also situations where the couple chooses not to file joint federal tax returns with the IRS, even though they may.

Some jurisdictions might not allow same-sex spouses to receive life insurance or health care benefits. Concerns about employment discrimination might also cause the same-sex couples to refrain from applying for certain benefits even when they are eligible. This include signing up for employer-sponsored spousal healthcare and listing the spouse as a beneficiary of an employer-provided retirement plan or life insurance policy.

Residential, financial, employment and other records that show status as “single” or fail to include the spouse do not support the claim of a genuine same-sex relationship.

When same-sex couples hide their relationship or do not openly hold themselves out as married, for whatever reasons, they often lack objective evidence of a bona fide union.

To  make up for the shortage of traditional, objective documents, same-sex couples (like opposite-sex couples) may provide a detailed, written affidavit describing their relationship history, joint residence, and marital life. They can also submit more readily available evidence such as:

  • correspondences addressed to each spouse at the same address
  • statements from each other’s bank accounts showing withdrawals to pay rent or other shared expenses
  • affidavits from friends and relatives who support their marriage;
  • cards, letters and emails they have exchanged with each other
  • photographs of the two of them together on vacations and at events celebrating holidays and special occasions
  • hotel receipts, car rental invoices and travel itineraries showing trips they have taken together
  • evidence of shared membership at clubs that allow same-sex couple benefits

Ultimately, same-sex couples must prove their marriage is valid and bona fide just like opposite-sex couples. They should do five things to get their marriage-based green card or immigrant visa application approved: enter into a real marriage, establish a life together, present documentation of a bona fide marriage, prepare for the green card or immigrant visa interview, and consult an attorney.

Until same-sex marriage becomes universally accepted and legal within all of the United States and around the world, many LGBT immigrants will continue to face unique challenges in the immigration process.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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5 Things to Do to Get Your Marriage-Based Green Card

Posted on March 19, 2015 | Comments Off on 5 Things to Do to Get Your Marriage-Based Green Card

In this video series, immigration attorney Dyan Williams describes the one-step petition (I-130 & I-485) and the five things to do to get your marriage-based green card:

1. Enter into a bona fide marriage
2. Establish a life together and collect evidence of this
3. Provide sufficient evidence of bona fide marriage
4. Take the interview seriously and prepare for it
5. Get help from an experienced immigration attorney

Read about 5 Things to Get Your Marriage-Based Green Card here.

Contact Dyan if you need help filing an immigrant petition for a foreign national spouse, responding to a Notice of Intent to Deny I-130 petition, or appealing a denial of an I-130 petition based on failure to prove a bona fide marriage.

This video series provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.

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5 Things to Do To Get Your Marriage-Based Green Card

Posted on March 18, 2015 | Comments Off on 5 Things to Do To Get Your Marriage-Based Green Card

Marrying a U.S. citizen is one of the quickest — but not necessarily the easiest — way to get a green card. USCIS will deny a marriage-based green card case if it does not receive sufficient evidence of a bona fide marriage and/or if it determines that the marriage is a sham.

A U.S. citizen’s filing of an I-130 petition with USCIS is the first step to helping the foreign national spouse become a permanent resident. A spouse who was lawfully admitted to the United States or who qualifies for 245(i), and is still in the U.S., may concurrently file an I-485 application to become a lawful permanent resident (green-card holder). One advantage is that the spouse does not have to depart the U.S. to apply for an immigrant visa at the U.S. Consulate.

Submitting the I-130 and I-485 together is known as the one-step petition/application. Normally, USCIS processes and adjudicates both at the same time. The foreign national cannot receive a marriage-based green card unless USCIS approves the I-130 petition.

Here are five things to do to get your marriage-based green card:

1. Enter into a bona fide marriage

USCIS will approve the I-130 petition only if it finds that the parties entered into marriage in good faith, i.e. intended to establish a life together at the time they married.  Normally, it must be proven by a “preponderance of the evidence” that the marriage is bona fide. Basically, this means the petitioner must show that it is “more likely than not” the marriage is real. [NOTE: When the marriage occurs while the foreign national is in removal proceedings, the standard of proof is higher: It must be shown by “clear and convincing evidence” that the marriage is real.]

Typically, USCIS expects a bona fide married couple to speak each other’s languages, live together, share common interests, co-mingle their finances, own joint property, and celebrate important events like holidays, birthdays and anniversaries.

A good faith marriage is one that is entered into for reasons other than for circumventing U.S. immigration laws. It could be arranged or freely chosen by the parties. It may be based on mutual love and affection, shared religious beliefs, a need for lifetime companionship, or a desire to raise children together.

A bona fide marriage is the opposite of a sham marriage, which is when the parties marry solely or primarily to obtain immigration benefits for the foreign national. USCIS’ Adjudicator’s Field Manual lists 10 factors indicating a marriage might be a sham:

  • Large disparity of age
  • Inability of petitioner and beneficiary to speak each other’s language
  • Vast difference in cultural and ethnic background
  • Family and/or friends unaware of the marriage
  • Marriage arranged by a third party
  • Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States
  • Discrepancies in statements on questions for which a husband and wife should have common knowledge
  • No cohabitation since marriage
  • Beneficiary is a friend of the family
  • Petitioner has filed previous petitions on behalf of foreign nationals, especially prior foreign national spouses

If any of these 10 factors apply to your marriage, you can expect more scrutiny from USCIS.

2. Establish a life together and collect proof of this

Before the one-step petition is filed, the couple should take steps to establish a married life together and collect documents to prove they are committed to one another. Examples include:

  • Living together (joint residential lease or mortgage statement showing both names, driver’s licenses showing same address)
  • Buying major assets together (motor vehicle title, invoice for furniture)
  • Adding the spouse as a beneficiary to employer-sponsored benefit (life insurance policy, health insurance plan, retirement account)
  • Co-mingling assets and liabilities (joint bank account statements, joint credit card statements, joint tax returns)
  • Sharing household expenses (utility bills in both names)
  • Going on vacations together (travel itineraries, photographs)
  • Participating in shared activities (gym or club memberships)
  • Spending time with mutual friends (affidavits from third parties attesting to the bona fides of the marriage)

The Service will consider the parties’ conduct before and after the marriage to determine their true intent at the time of marriage.

Circumstances might require the couple to live apart temporarily, especially for work-related reasons. If the couple is not living together at the time they file for immigration benefits or at the time of their interview, they need to have a good explanation and gather reliable documentation showing they have a real marriage. Examples include:

  • Letters, emails and greeting cards you have exchanged with each other
  • Airline tickets, hotel bills and other receipts showing trips you made to see each other
  • Telephone records showing calls you made to each other
  • Photographs of the two of you together and with family and friends (or even with pets), taken over a considerable period at different events
  • Correspondences (e.g. bills, letters, cards) addressed to both of you at the same address
  • Receipts for gifts you bought each other
  • Birth certificates of (biological, adopted) children you have together, or evidence that you are trying to have children

3. Provide sufficient evidence of a bona fide marriage 

The Instructions for Form I-130 list the types of documents that may show the bona fides of a marriage. They include documentation showing joint ownership of property (e.g. mortgage, car title); documentation showing co-mingling of financial resources (e.g. joint bank account); birth certificates of children you have together; and affidavits from third parties confirming the bona fides of your marriage.

Your marriage certificate and proof of termination of any prior marriages (e.g. divorce decree or death certificate of previous spouse) only show that your marriage is valid. These documents are required, but are not sufficient to show the marriage is bona fide.

Filing a one-step petition is not just about completing the forms and submitting the filing fees. You also need to carefully document the bona fides of your marriage and give USCIS a sense of who you are as a couple.  The more documents you present to show your marriage is real, the easier it will be for the officer to approve your case.

Some types of documents are also more persuasive than others.  For example, birth certificates of your children, mortgage statements for your shared home, and life insurance policies showing one of you as the other’s beneficiary are much more persuasive than photographs of the two of you together, your joint residential lease , and your joint utility bills. They are harder to fake and are practically non-existent in sham marriages.

No matter the circumstances, you must avoid submitting any fabricated, false, forged or altered documents to USCIS. This could lead USCIS to find that you committed fraud or willful misrepresentation of material facts to obtain immigration benefits. This would require you to obtain a waiver of inadmissibility to obtain the green card (even if you managed to get the I-130 approved).

4. Take the interview seriously and prepare well for it

In marriage-based green card cases,  the USCIS field office in your jurisdiction normally interviews you to verify whether your marriage is bona fide.

The officer will place you both under oath at the start of the interview. In addition to getting specific information, the officer will be observing your demeanor and your interactions with each other to determine whether you have a real marriage.

Tell the truth at the interview, even if the answers are less than ideal. Giving false testimony or misrepresenting facts at the interview is grounds for a denial. Discrepancies between your and your spouse’s testimonies and inconsistencies within your testimonies also hurt your credibility. They will cause the officer to doubt the bona fides of your marriage.

At the interview, listen carefully to the USCIS officer’s questions and respond truthfully to the questions you’re being asked. Giving too many details about your courtship and embellishing stories about your shared life can make you less believable.

There’s no need to volunteer information that was not required on the application forms and is not being asked for at the interview. While you should not give misleading information to cut off a line of inquiry from the officer, you also don’t want to open up a line of questions that could unnecessarily bring out negative information.

If you don’t understand a question, ask the officer to repeat it or rephrase it. If you don’t recall information or you’re not 100% sure of your answer, let the officer know.  If you feel you’re being asked inappropriate questions, stay calm and avoid arguing with the officer. (You may ask to speak with a supervisor.)

If your first language isn’t English or if you’re not fluent in English, be sure to bring a qualified interpreter. Otherwise, you could misunderstand the officer’s questions or the officer could misunderstand your answers.

USCIS often interviews you together, but may interview each of you separately. When separate interviews are conducted, the officer will ask you each the same questions and compare your answers. If both of you tell the truth, it’s more likely that your answers will be the same or similar. Consistent testimonies help to persuade the officer that you have nothing to hide and that your marriage is bona fide.

Even bona fide married couples do not always observe, perceive or recall things the same way. For example, would you give the same answers if you were separately asked the following questions:

  • Where did you first meet?
  • How did you meet?
  • Where did you go on your first date? When was your first date?
  • How many people attended your wedding?
  • What did you to to celebrate your marriage?
  • Why did you get married?
  • Who proposed? Where were you when marriage was proposed?
  • What are your spouse’s work hours?
  • What is the color of the wall in your bedroom?
  • Which side of the bed do you sleep on?
  • Where did you go on your last vacation together?
  • Who woke up first this morning?

These are just a few of the many potential questions the officer may ask you. It helps for you and your spouse to prepare for the interview and make sure you’re on the same page when it comes to your relationship history and shared life together.

Your testimony at the interview can be the deciding factor in whether your case gets approved. Following the interview, the adjudications officer can approve the one-step petition, issue a Request for Evidence, have a site visit conducted at your claimed residence, conduct further investigation, or issue a Notice of Intent to Deny the petition.

5.  Get help from an experienced immigration attorney

You’re better off consulting an attorney from the outset, before you file your one-step petition. Full representation is best, but if you cannot afford this, you want to get limited representation or consult an attorney at least once.

An experienced attorney can determine whether you qualify for a marriage-based green card, review your application forms for accuracy and completeness, advise you on the types of documents to submit to prove the bona fides of your marriage, prepare you for what to expect at the interview, and represent you at the interview. An attorney can also discuss red flags in your case and counsel you on how to address them.

At the interview, a USCIS officer who suspects the marriage is fraudulent may give the U.S. citizen an opportunity to withdraw the petition and write a statement to that effect. Having your attorney at the interview will help protect your rights and make the process more comfortable.

A diligent attorney will take notes, ask clarifying questions, and object to inappropriate lines of questioning. The attorney will also be able to give you an assessment of how the interview went and advise you on follow-up matters.

Want to hear about 5 Things to Do to Get Your Marriage-Based Green Card? Check out the video series:

Conclusion

Entering a bona fide marriage, establishing a life together, submitting documentation of your shared life, successfully completing the interview, and seeking advice from counsel are five key steps to getting your marriage-based green card. If you have a real marriage, you really have little to worry about. It’s just a matter of convincing USCIS that your marriage is bona fide.

WARNING!

USCIS may deny a one-step petition if it receives insufficient evidence of a bona fide marriage and/or if it finds that the marriage is a sham. The immigration authorities may then file removal charges against the foreign national on several grounds, such as failing to maintain lawful non-immigrant status and committing fraud to obtain immigration benefits.

A sham marriage finding is also a permanent bar to obtaining an approval of any subsequent petitions for the foreign national. So the foreign national could never get a green card based on, for example, a second immigrant petition by a new spouse  or U.S. employer (unless the marriage fraud finding was overturned on appeal or on USCIS’ own reconsideration).

Marriage fraud is a crime. A person who knowingly enters into a marriage for the purpose of evading immigration laws is subject to imprisonment (up to 5 years), a fine (up to $250,000), or both.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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