Top Concerns Regarding the Family Based Immigration Process
Top Concerns Regarding the Family Based Immigration Process
Three of the most pressing concerns of immigrants wanting to apply for permanent residency in the U.S. are: (1) What options do I have to get my permanent residency through my husband or wife? (2) What is the process to apply for my finance/fiancée? and (3) What specific criteria must my marriage meet to pass scrutiny by Immigration?
Family based immigration is the process of applying for permanent residency (a green card) through a spouse or other family member. This process can be extremely complex, lengthy (sometimes lasting years), and frustrating for the applicant who must be fingerprinted, undergo a thorough medical exam and subject herself to a thorough security clearance check.
Below is a brief overview of the issues concerning family-based immigration cases.
What Are My Options if I Want to Apply for My Spouse?
A spouse of a United States citizen may apply for permanent resident status (a green card) and obtain a work permit within the United States, only if the spouse:
- entered the U.S. legally, or
- had a petition filed on their behalf prior to April 30, 2001.
Generally speaking, if neither of these is the case then the spouse must leave the United States and return to their home country to proceed with the process of Consular Processing (applying for permanent residence from abroad).
What Specific Criteria Must a Marriage Meet to Be Considered Valid for Immigration Purposes?
Immigration officials conduct very thorough reviews of marital relationships when an immigration case is based upon a marriage. According to a recent Department of Homeland Security report nearly half of spousal immigration cases are fraudulent.
At a minimum, for a marriage to be recognized as valid for immigration purposes, each party must have been legally able to marry at the time of the marriage (i.e. all previous divorces were final), the marriage ceremony must have been considered legal under the laws where it was performed, and the couple must have married out of a true desire to enter into a marital relationship and not just for immigration purposes.
Common Law marriages are accepted for immigration purposes if they are legally recognized by the law in the place of residence of the couple. In these cases, however, extra evidence generally needs to be submitted to support the common law marriage-based petition. Customary marriages, those performed according to local custom but not licensed by civil authorities, may be valid if the law of the country where the marriage occurred recognizes the marriage as valid. Same sex marriages, however, although they may be legal in the state or country in which the marriage was performed, are not recognized for immigration purposes (due to the lack of federal recognition of the validity of same-sex marriages). This policy may change in the future.
What Are My Options If I Want to Apply for My Fiancé/Fiancée?
If the couple is not yet married, a U.S. citizen may apply for a K-1 visa in order to bring his or her fiancée to the United States in order to get married. The couple has only 90 days in which to legally marry in the United States. Once the couple is married, the immigrant relative can then apply for permanent resident status.
In order to obtain a fiancé/fiancée visa, the couple must prove:
- That they have met in person within the past two years (in some cases this requirement can be waived);
- That they have a good faith intention to marry; and
- That they are legally able and willing to marry within 90 days of the fiancée’s arrival to the U.S.
It is important for immigrants to plan carefully before filing any family based immigration paperwork with USCIS. Applying for a benefit that an immigrant is not eligible for could result in removal proceedings, and possible deportation from the United States.
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