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You can also find answers to some Frequently Asked Questions (FAQs) on this page and on our Immigration Blog, The Legal Immigrant.
MARRIAGE-BASED GREEN CARD OR IMMIGRANT VISA
I entered the U.S. on a B-2 visitor’s visa and then married a U.S. citizen. May I apply for a green card while I’m still in the U.S.?
The B-1/B-2 visa is a non-immigrant visa that does not permit dual intent. A holder of such a visa should intend to only visit the U.S., and not intend to immigrate upon entry.
If the U.S. Consulate or U.S. Customs at the airport suspects that the person intends to immigrate to the U.S. when applying for a visa or when requesting entry into the U.S., it will likely deny the visa or entry. If the officer knows the person has a U.S. citizen fiancé(e), spouse, parent or child over age 21, a denial is also very possible.
Nevertheless, a B-1/B-2 visa holder who marries a U.S. citizen after he enters the U.S. may apply for adjustment to lawful permanent resident status (green card).
Preconceived intent to immigrate to the U.S., in and of itself, does not generally bar a person from adjusting to permanent residence based on an immigrant petition by an immediate relative (i.e. U.S. citizen spouse, parent or child over age 21).
A person does not have preconceived intent if he made a decision to immigrate only after entering the U.S. And even if the person had preconceived intent, if he was never questioned about it by a consular officer or a customs officer, and he never provided misleading information when applying for the visa or when requesting entry, he may usually adjust status. Silence (or not volunteering information) when applying for a visa or entry into the U.S. is not a fraudulent misrepresentation.
Fraud or willful misrepresentation, however, is a bar to getting a green card. For example, at the port of entry, the customs officer may ask the B-2 visa holder about the purpose of the visit. The person may claim that he is only coming to the U.S. for a temporary visit when he and his U.S. citizen fiancee actually made specific plans to marry and then proceed with a marriage-based green card application. This could be deemed as fraud or willful misrepresentation to gain entry into the U.S. as a B-2 visitor.
Because USCIS’ decision to grant the Form I-485 application to adjust status is discretionary, there is a slight chance that the officer could accuse the person of having fraudulently misused the B-1/B-2 visa for U.S. entry and deny the green card as a result. But in most cases, USCIS will grant adjustment of status if the only adverse factor is preconceived intent. Furthermore, if the person is found to have committed fraud or willful misrepresentation to gain immigration benefits, he may be able to obtain a waiver of inadmissibility and still get the green card.
For more information, read our article, Applying for a Marriage-Based Green Card Following Entry Into the U.S. as a Visitor.
Contact us to help you determine whether your immigration history—from B-1/B-2 visa application, entry to the U.S., and application to adjust status – complies with the law.
I married my U.S. citizen spouse in good faith and we lived together, but recently separated. Our I-130 interview before USCIS is scheduled, but due to marital problems my wife now wants a divorce. What should I do?
USCIS has authority to approve a marriage-based green card application (I-130/I-485 one-step application) even if you are not residing together or have marital problems. But you must still be legally married; your wife must not have withdrawn the I-130 or I-864, Affidavit of Support; and you must prove that you entered into marriage in good faith, i.e. with the intent of establishing a life together as husband and wife, and not just for immigration benefits. It is much harder to prove a bona fide marriage if your wife does not attend the interview to provide supporting testimony.
Even if your marriage is on the rocks, your wife might still be willing to attend the interview with you.
The officer will likely ask about the history and status of your relationship. Be upfront about your marital problems, explain that you want to work things out, but your wife is thinking about getting a divorce. Don’t fabricate any documents or provide false testimony to make your marriage look good. Don’t unnecessarily volunteer negative information that is not being requested. Present as many documents as you can to prove the marriage was entered into in good faith, e.g joint lease, joint bills, joint accounts, photographs of the two of you together, affidavits from third parties confirming that the two of you entered into a bona fide marriage.
A final divorce or legal separation (i.e. written agreement recognized by a court order or court order legally separating the couple) will disqualify you as a spouse for immigration benefits. But an informal separation or marital problems is not a basis for USCIS to automatically deny the petition. These negative factors, however, may be considered in determining whether you entered into marriage in good faith.
If there is any chance that you and your wife can resolve your marital problems, but she is unable to attend the scheduled interview, you may request a rescheduling of the interview for good cause. If the request is granted, the Service will issue a new interview notice. Perhaps by then you and your wife would have resolved your marital issues.
If neither of you appears for the interview, and no request for rescheduling was filed, the Service will deny the petition/application due to abandonment.
Contact us to learn about all your options and to help you decide how to move forward.
I entered into an arranged marriage to a U.S. citizen. May I become a permanent resident or get an immigrant visa based on this marriage?
For you to get a marriage-based green card or immigrant visa, USCIS must first approve the I-130 petition that your US citizen husband files for you. To obtain an I-130 approval, your husband must show that your marriage is bona fide (i.e. entered into with the purpose of establishing a life together as a married couple, and not primarily for or solely for immigration benefits).
Arranged marriages can make it harder for the couple to prove that their relationship is bona fide, especially when they barely know each other and/or are not living together because they have yet to complete the religious/marital ceremony or are in different countries.
USCIS recognizes that arranged marriages are culturally acceptable around the world, including in China, India, Pakistan and Middle Eastern countries. They will not deny a petition simply because the marriage is arranged. But you still need to present evidence that the marriage is bona fide, e.g. joint residential lease, joint bank account, letters/emails you sent to each other, photographs of the two of you together, declarations from family members and other third parties confirming that your marriage is real.
If you are in the U.S. and apply for adjustment to lawful permanent resident status based on the marriage, USCIS will schedule an interview to question the two of you about your marriage.
If you are overseas and apply for an immigrant visa based on the marriage, the U.S. Consulate may ask you questions about the marriage before it grants the visa (even though USCIS already approved the I-130 petition).
Contact us to help you prepare and file a well-documented petition/application that shows you and your husband share a bona fide marriage, even though it is arranged.
FORM I-751, PETITION TO REMOVE CONDITIONS ON PERMANENT RESIDENCE
I applied for a waiver of joint filing requirement in Form I-751 to remove the conditions on my two-year permanent resident status, after I divorced. USCIS denied my request. What do I do next ?
If USCIS issued a Notice to Appear (NTA) in removal proceedings, you have the right to have an Immigration Judge conduct a de novo review of your I-751. The Service must first file the NTA with the Immigration Court in order for you to get a hearing before a judge. In your removal proceedings, you will have the opportunity to present testimony and new evidence to support your case.
Otherwise, you may re-file your I-751 with USCIS, along with new information and evidence to overcome the reasons for the denial on the first I-751. If you are placed in removal proceedings while your new I-751 is still pending with USCIS, you must still appear before the Immigration Judge for your hearing. You may ask the immigration judge for a continuance or administrative closure of your removal proceedings to give USCIS time to review your new I-751.
Although your conditional residence is terminated upon USCIS’ denial of the I-751 petition, you retain “temporary status” until the Immigration Judge issues a final decision. You may obtain temporary I-551 stamps at the local USCIS office while your I-751 case has yet to be adjudicated by an Immigration Judge.
If the NTA is filed with the Immigration Court and you are in removal proceedings, you must not leave the U.S. even if you have a temporary I-551 stamp. Departing the U.S. willingly, but before removal proceedings are concluded triggers a 10-year bar to re-entry.
Even if you are not in removal proceedings, it is best for you to remain in the U.S. and not travel overseas with a temporary I-551 stamp. (Wait until your I-751 is approved and you are granted an unconditional, 10-year green card.)
Contact us to discuss next steps and to determine how to overcome the reasons for the denial.
I need to file an I-751 to remove the conditions on my permanent residence, which will soon expire. My spouse and I are having marital problems and we might be heading toward a divorce. What will happen to my permanent resident status if we get divorced?
If USCIS does not receive your I-751 petition before your conditional green card expires, your status will terminate automatically and you may be placed in removal proceedings. Ordinarily, the married couple must file a joint I-751 during the 90 days before the conditional resident status expires. If you file the joint petition late, you must show the late filing was due to extraordinary circumstances beyond your control and the delay was reasonable.
If your spouse is not willing to file a joint I-751 petition, a divorce is required to get a waiver of the joint filing requirement when you file your I-751 by yourself. You may file the I-751 with request for waiver at any time before you are removed from the U.S. If you file the I-751 with waiver request before you get divorced, USCIS will issue a Request for Evidence. You generally have 87 days to respond to the RFE (submit the divorce decree).
If you do not respond to the RFE or if you do not have a divorce decree to submit, USCIS will find that you do not qualify for the waiver and deny the I-751. USCIS will then issue a Notice of Termination of Conditional Residence and refer the case for you to be placed in removal proceedings. If you divorce while you are in removal proceedings, you may ask the Immigration Judge for a waiver of the joint filing requirement and get your I-751 approved.
It’s either you and your spouse reconcile to file a joint petition, or you get a divorce to file the petition by yourself. Regardless of whether you file a joint I-751 petition (with your spouse, if still married) or an I-751 waiver (by yourself, if divorced), you must prove the marriage was entered into in good faith.
For more information, read our article, Form I-751: Removing Conditions on Permanent Residence When Marriage is on the Rocks.
Contact us to get specific advice on the I-751 process and to discuss your best course of action.
NONIMMIGRANT VISA: K-1 FIANCE(E) VISA
I don’t earn enough income to sponsor my fiance for a K-1 visa. I had a joint sponsor submit an affidavit of support, but the Consulate says she also does not earn enough income. They want me to cover 125% of the HHH poverty guidelines for my household size. What are my options?
The primary purpose of the K-1 is for your fiancé to enter the U.S. and marry you within 90 days, after which he may file his Form I-485, application for adjustment to lawful permanent resident status.
At the green card application stage, you would need to file a Form I-864, Affidavit of Support, with proof that you earn an income of at least 125% of the HHH poverty guidelines. Therefore, many Consulates will not issue the fiancé visa unless you meet the 125% requirement (even though the 100% requirement is what actually applies in a Form I-134, Affidavit of Support, in a K-1 fiance visa case.
The visa applicant must show that he will not become a public charge in the United States, e.g. he will not go on welfare or receive other government financial assistance during the 90-day stay in the U.S. on a fiancé visa. Some of your options include:
1) Finding a new job that will allow you to increase your income
2) Having your fiance present evidence that he is able to financially support himself (e.g. savings account, stocks, bonds and other assets that can be easily converted into cash)
2) Getting another joint sponsor who is a U.S. citizen or permanent resident and meets the minimum income requirement for his/her household size
3) Having you and/or your mother include assets that are readily convertible to cash within a year and would make up for the shortage in income, e.g. stocks, bonds, certificates of deposits, savings and checking accounts, real estate/house, motor vehicle
An approved K-1 visa petition is valid for a period of four months from the date of USCIS approval and may be revalidated by the consular officer any number of times for additional periods of four months from the date of revalidation, provided the officer concludes that you remain legally free to marry and continue to intend to marry each other within 90 days after the beneficiary’s admission into the United States. However, the longer the period of time since the filing of the petition, the more the consular officer must be concerned about the intent of the couple to marry.
If the visa petition expires and is not revalidated, you may file a new petition (after you are in a better position to meet the income requirement).
Keep in mind that new poverty guidelines go into effect each spring (March of every year), which will be higher than the prior year’s poverty guidelines.
Contact us to help you get this matter resolved.
I am a U.S. citizen. What’s the best and easiest way to get my girlfriend from overseas to come to the U.S.?
B-2 tourist visas are for persons who want to enter the U.S. for tourism, pleasure, or visiting family and friends. It is a non-immigrant visa for temporary visits. The odds of obtaining this visa depend on whether the U.S. Consulate is convinced that your stay will be temporary, that you intend to depart the U.S. by the end of the authorized period (typically no more than 6 months), and that you can cover the cost of your trip.
For information on the visa application process, visit the website of the U.S. Consulate where your girlfriend will apply. She will need to show compelling evidence that she intends to return to her home country, e.g. family relationships, employment and property that binds her to her place of residence.
If you are a U.S. citizen and you intend to marry your girlfriend, the other option is to get engaged and file for a K-1 fiancee visa. Or you could go overseas and marry her and file for a K-3 (non-immigrant) visa or an immigrant visa. These processes are generally more complicated and take longer, but are more appropriate if the purpose of the visit is not temporary.
For more information, read our article, Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?
Contact us to learn more about your best visa options.
May a K-1 visa applicant file for an I-601 waiver of inadmissibility?
Section 212(a) of the Immigration & Nationality Act lists the various grounds under which a person is inadmissible to the U.S. For example, section 212(a)(6)(C)(i) – i.e. fraud or willful misrepresentation of material fact to gain immigration benefits – is a permanent bar to entry into the U.S. You may not obtain an immigrant visa or a nonimmigrant visa, such as a K-1 fiance visa, without a waiver.
The I-601 waiver applies to fiance(e)s, not just spouses, of U.S. citizens. K-1 visa applicants must file the I-601 waiver application with USCIS to overcome the inadmissibility bar. The waiver is conditioned upon the K-1 visa holder marrying the K-1 visa petitioner following admission to the U.S.
The waiver grant to a K-1 visa applicant is conditional because the required relationship (e.g. marriage) with a qualifying relative (e.g. U.S. citizen spouse) must exist for her to qualify for the waiver. The waiver automatically becomes valid for an indefinite period if the marriage occurs.
To get the waiver, a K-1 visa applicant must present documentary evidence proving her U.S. citizen fiance will suffer “extreme hardship” if she is not admitted to the U.S. She also needs to show she deserves the waiver as a matter of favorable discretion.
For more information, read:
When do you need an I-601 Waiver due to unlawful presence (and how do you get it)?
The K-1 visa is a nonimmigrant visa. Following entry into the U.S., the K-1 visa holder must marry the US citizen petitioner within 90 days of arrival and file the I-485 adjustment application to obtain a green card (permanent resident status). If the marriage occurs outside 90 days, the U.S. citizen must file an I-130 immigrant petition along with the I-485 application.
Although the INA 212(d)(3)(A) nonimmigrant waiver is normally for nonimmigrant visa applicants, it is NOT appropriate for K-1 visa holders who arrive in the U.S. for the specific purpose of filing for a green card.
The K-1 to green card process, particularly when it involves an I-601 waiver request, can be complicated and confusing. Waivers are hard to get especially when you do not have an experienced attorney’s guidance.
Contact us for help with preparing your waiver application and maximizing the chance of approval and avoiding unnecessary delays.
RE-ENTRY TO U.S. FOLLOWING TRAVEL ABROAD
I have a conditional (two-year) permanent resident card. I also have a valid passport from my home country. If I am traveling outside the U.S., do I need a travel document or can I use my passport?
A valid green card and unexpired passport are normally all you need for re-entry to the U.S. as a permanent resident. You must return to the U.S. before your two-year (conditional LPR) card expires.
You want to keep your travel abroad short. A long-term absence from the U.S. could cause the U.S. government to determine that you have abandoned your residence. In general, if you are outside the U.S. for less than 12 months, you may present your green card for admission. If you are outside the U.S. for more than 12 months, you must present either a re-entry permit or a Returning Resident (SB-1) visa.
Having a reentry permit or returning resident visa does not protect you completely from being deemed to have abandoned your permanent residence. You must be able to show your intent to return to the U.S. in LPR status after a temporary visit abroad, e.g. maintaining property and assets and having strong family ties in the U.S. In determining whether you abandoned your LPR status, the U.S. government may consider any length of absence from the United States, even if it is less than 12 months.
If your intend to keep your travel abroad short and return to the U.S. well before your two-year LPR status expires, your valid green card and passport are generally all you need to travel.
Contact us for more specific guidance on what you need to gain re-entry into the U.S. following a trip abroad.
