A non-U.S. resident may be able to gain U.S. citizenship or lawful permanent resident status through marriage. This process may be referred to as either a citizenship or green card marriage. A citizenship or green card marriage is when a U.S. resident marries a nonresident, which in turn, enables the nonresident to become eligible to apply for a green card.
However, if you are only engaged to a U.S. citizen and you reside outside of the country, then you may be eligible for a fiancé visa, but not for a green card. A fiancé visa, also known as a K-1 visa, is a visa that is issued to an immigrant who resides in another country and needs to enter the United States. This visa also requires an immigrant fiancé to marry the U.S. citizen within 90 days or else they can be deported.
Now, if you are the fiancé of someone who only has U.S. permanent resident status (i.e., they are not a U.S. citizen yet), then you must be married before you will be allowed to apply for a visa. In which case, you may be placed on a waiting list before you can gain entry into the United States. There will also be many legal regulations, requirements, and procedures that you will need to comply with beforehand, as well as some specific time constraints.
Thus, if you have any questions about the above information or need assistance with any of the steps involved in this process, then it may be in your best interest to consult with a local immigration lawyer for further guidance.
An experienced immigration lawyer will be able to answer any questions regarding immigration and marrying a U.S. permanent resident. A lawyer can also help engaged couples fill out the necessary paperwork and initiate the process for a visa.
What If I Intend to Marry a Permanent Resident Who Gained Entry Through Marriage?
As discussed above, a person who intends to marry a U.S. permanent resident who initially gained entry into the United States by marrying a person who was already a U.S. citizen, may have to wait four or five years before they can be approved for a green card.
For instance, a non-U.S. resident may not be approved for a green card through marriage if the U.S. permanent resident whom they intend to marry was previously only married to a U.S. citizen less than five years ago.
However, there are two primary exceptions to this rule:
- First, if the spouse of the U.S. permanent resident’s prior marriage ended in death, then this rule may not apply; and
- Second, if the parties can prove by clear and convincing evidence that they intend to marry for love and not simply for the purposes of evading U.S. immigration laws, then this may make the non-U.S. resident eligible for a green card through marriage to a U.S. permanent resident.
- Otherwise, there will be consequences if it is discovered that the couple entered into a fraudulent or scam marriage solely for the reason of obtaining a green card.
If the couple intending to marry discovers that there are no major legal obstacles in the way, then the non-U.S. resident may be able to obtain a green card by submitting an application under a specific green card eligibility category.
It is important to note, however, that the couple will most likely need to get married abroad before they can apply. This is because U.S. permanent residents can only file petitions for unmarried children and their spouses.
Assuming the couple gets married outside of the United States, the person who already has U.S. permanent resident status will need to file a Form I-130, Petition for Alien Relative, with the U.S. Citizenship and Immigration Services (“USCIS”) agency. The U.S. permanent resident will also need to file a Form I-130A, Supplemental Information for Spouse Beneficiary, on their immigrant spouse’s behalf.
Additionally, the petitioner will need to pay a standard filing of $535 USD to submit these forms. This payment cannot be waived or refunded once it is paid. The payment must be made by submitting a check or money order to the U.S. Department of Homeland Security (“DHS”).
There may be other requirements or documents that must be complied with and submitted along with these forms. Thus, a petitioner should review the checklist located on the USCIS website for such forms, or alternatively, consult the instructions of the U.S. Embassy or Consulate in the country where the form is being filed.
There are also some exceptions wherein a U.S. permanent resident may not be allowed to file a Form I-130 on behalf of their immigrant spouse. This may include:
- When both spouses were not physically present at the marriage ceremony;
- If the marriage between the parties occurred while the immigrant spouse was in the process of being deported, removed, or excluded from the United States or while awaiting a decision pending judicial review before a court;
- When a representative from the USCIS has determined that an individual has attempted to enter into a marriage for the purposes of evading U.S. immigration law;
- If the U.S. permanent resident gained their status through a prior marriage to a U.S. citizen or lawful permanent resident unless the following factors are present:
- They are now considered a naturalized U.S. citizen;
- They have been a lawful permanent resident for at least five years or longer;
- The spouse through which they gained their current status has died; or
- They can establish by clear and convincing evidence that they did not enter into the prior marriage for the purposes of evading U.S. immigration laws.
Once all requirements have been met and the USCIS approves an application, then an immigrant spouse may be able to achieve a lawful permanent resident status immediately. However, if a non-U.S. resident is still a fiancé who lives abroad, then they will need to wait until a visa number becomes available before they can apply.
Spouses who live outside of the U.S. may need to apply for an immigrant visa through the U.S. Embassy or Consulate located in the country in which they are currently residing or awaiting entry into the United States.
Finally, in some instances, a lawful permanent resident may be able to petition for a green card for an immigrant spouse by filing Form I-485, Application to Register Permanent Residence or Adjust Status, with the USCIS.
This can happen when a spouse is already living in the United States and an immigrant visa is immediately available. If so, then the petitioner must apply using the “second preference (F2A)” classification that is listed under the overarching family-based preference category.
Depending on the circumstances, the petitioner can file Form I-485 either concurrently with Form I-130, while Form I-130 is pending, or after Form I-130 has been approved, so long as the form has not been previously terminated or revoked.
Do I Need an Immigration Lawyer?
Marrying a U.S. permanent resident who originally gained U.S. citizenship through a prior marriage can pose some legal challenges and may require filling out lots of legal paperwork. For instance, depending on the circumstances of a marriage and the immigration status of both parties, some immigration marriage issues may be much more complicated than others.
Thus, if you have any questions, concerns, and/or need assistance with an issue regarding marriage to a U.S. permanent resident, then you may want to consider contacting a local immigration lawyer for further legal advice. An experienced immigration lawyer can guide you through the necessary immigration procedures in an efficient manner.
Your lawyer can also assist with the petitioning process and can inform you about any significant changes that are made to existing immigration law. Additionally, should any disputes arise over a matter related to an immigration or marital issue, your lawyer can help to protect your interests. Lastly, they will be able to provide legal representation in court as well.
