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1. The Two-Step Procedure Under the Immigration Marriage Fraud Amendments
For
those persons without permanent residency in the U.S., A marriage with
U.S. citizen also presents an opportunity to obtain U.S. permanent
residency. Because concerns that some persons married to United States
citizens merely to obtain U.S. permanent residence status, a two-step
procedure under the Immigration Marriage Fraud Amendments (IMFA) was
set up to ensure such immigration status was given to those only in
marriages that are bona-fide, and not entered into simply for
immigration purposes.
In the step one, if a
person is petitioned by the U.S. citizen spouse within 2 years after
married, the alien spouse is given only conditional permanent
residence. Such conditional permanent residence status lasts for 2
years from the date on which it is granted.
In the step two, the
alien spouse needs to remove the conditional permanent residence
status. Removal of the conditional status is initiated by filing Form
I-751 Joint Petition to Remove Condition to Permanent Residence. The
joint petition provides an opportunity for USCIS to inquire as to the
legitimacy of the marriage after conditional permanent residence is
granted.
Therefore, documentation
evidencing that the marriage was entered into for bona-fide reasons
should be submitted as part of the joint petition. It must be filed
with the USCIS service center in the 90 days immediately prior to the
second anniversary of the granting of conditional permanent residence.
2. The Conditional Permanent Residence
Status
If
you have been married for less than two years when your spouse enters
the United States on an immigrant visa, the permanent resident status
is considered “conditional.” The immigrant visa is
a conditional resident (CR) visa, not an immediate relative (IR)
visa.
A
lawful permanent resident is given the privilege of living and working
in the United States permanently. A permanent residence status will be
conditional, if it is based on a marriage that was less than two years
old on the day the alien spouse was given permanent residence. The
alien spouse is given conditional resident status on the day he or she
is lawfully admitted to the United States on an immigrant visa or
receive adjustment of status.
The
U.S. citizen and alien spouse must apply together to remove the
conditions on the alien spouse's residence. They should apply during
the 90 days before their second anniversary as a conditional resident.
The expiration date on the alien registration card (commonly know as
Green Card) is also the date of the second anniversary as a conditional
resident. If the U.S. citizen and alien spouse do not apply to remove
the conditions in time, the alien spouse could lose the conditional
resident status and be removed from the country.
3. The Conditional Green Card Will Expires
after Two Years?
Because
of the concern of the marriage being likely to be shams, U.S.
Citizenship and Immigration Services (USCIS) will review the validity
of the marriage based Green Card, by initially making the new immigrant
a "conditional," not "permanent" resident. Aliens who obtain permanent
residence (Green Card) based upon a petition filed by a U.S. citizen
spouse may be subject to conditional residence status for two
years.
The conditional residency will expire after two years. Before the
expiration date, the immigrant will have to apply for permanent status.
The application process involves proving that the marriage is ongoing,
and supplying further proof that the couple is truly establishing a
life together.
This also means that the conditional Green Card will expire after two
years, unless the Form I-751 is filed and approved. This allows the
USCIS to double check and reassess whether the marriage was real at the
time of its inception.
4. Conditional Green Card is Extended to
Children who Obtain Permanent Residence Based Upon the Marriage of that
Parent to a U.S. Citizen
Aliens
who obtain permanent residence (Green Card) based upon a petition filed
by a U.S. citizen spouse may be subject to conditional residence status
for two years. Permanent residence will be conditional, if the duration
of the marriage has been less than two years at the time permanent
residence is granted. This means that it will expire after two years,
unless the Form I-751 is filed and approved. This allows the USCIS to
double check and reassess whether the marriage was real at the time of
its inception.
This same conditional grant of permanent residence is extended to
children who obtain permanent residence based upon the marriage of that
parent to a U.S. citizen, when the marriage is less than two years in
duration. If the parent's marriage is not real, then the children of
the alien can not obtain any immigration benefits as the result of the
marriage.
5. How
to Remove the Conditions
If you are a U.S. citizen or
Green Card holder, if you have been
married less than two years when your alien spouse is granted U.S.
permanent resident status, the alien spouse will receive U.S. permanent
resident status on a conditional basis.
To remove the conditions on you spouse's residence status in United
States, you and your spouse should apply together using USCIS Form
I-751, Petition to Remove the Conditions of Residence. You must apply
to remove conditional status within the 90-day period before the
expiration date on the conditional resident card. If you fail to file
during this time, your spouse’s resident status will be
terminated and he or she may be subject to removal from the United
States.
If your alien spuse has a child in previous marriage and if you are
petitioning for a step-child and have not been married to the
child’s genetic parent genetic or legal gestational mother
for 2
years at the time the child receives permanent residence, the child
will be granted conditional permanent resident status also.
Therefore Form I-751 can also be used to remove the conditional basis
of permanent residence for the child. If your spouse and child became
conditional permanent resident at the same time or within 6 months, the
child can be included in your spouse’s petition. If the child
became a permanent resident more than 6 months after your spouse, the
child will need to file a separate Form I-751.
6. The Interview and Denial of the Removing
the Conditional Permanent Residence Status
USCIS
has the authority to deny the removal of the conditional permanent
residence status, in cases where it is clear a marriage was entered
into in order to evade immigration laws. These are cases in which
marriage was used solely to obtain the Green Card and not for genuine
marital purposes.
Under
the USCIS procedures, the interview could be waived by the Service
Center, in any case it was convinced that the marriage was real. In a
situation where the evidence was sufficient to reflect a real marriage,
the case could simply be approved by the Service Center without the
need for an in-person interview at the local office.
A
case that was questionable in terms of whether it was real may be
forwarded to the local USCIS office for an interview. The local offices
would conduct personal interviews with the parties to the marriage
prior to making a final decision. Some of these cases can be denied
without the in-person interview.
7. The Consequences of Divorce for
Immigration purposes
A
divorce is a legal termination of a marriage. Whether a termination of
a
marriage is deemed legal, and as a result effective, depends on the law
of the
state or country where the divorce took place. Generally, if the state
law recognizes an action to terminate a marriage as a divorce, a
marriage no
longer exists between the affected parties for immigration law
purposes.
For
the most part, physical or legal separation (i.e., a separation
formalized by a
court) of married parties does not constitute a legal termination of a
marriage.
This is the case even in circumstances where each party of the marriage
has no
intention of residing with each other again. However, in some
instances, a legal
separation may be considered a legal termination of a marriage for
immigration
law purposes. This occurs when the law of a state or country converts
legal
separations automatically into divorces after a period of time.
Generally, if the marriage is
terminated by divorce before permanent resident
status is granted (i.e., before adjustment of status is granted for
those aliens
who applied for adjustment), the beneficiary will not
be eligible for permanent resident status through this relationship.
Children of
aliens who are married to a U.S. permanent resident or citizen may
obtain
permanent resident status in many instances through their step
relationship with
their alien parent's spouse. As is the case with the alien parent, if
the marriage
terminates before permanent resident status is granted, the beneficiary
or
derivative beneficiary will not be eligible for permanent resident
status
through this relationship.
8. Joint Filing USCIS Form I-751 with Troubled Marriage
USCIS Form I-751 can be filed by a couple jointly, even it they are
legally separated or in the process of divorce. But USCIS will review
these Form I-751 applications carefully, because there is a potential
indication that the marriage may not have been real at its beginning.
In these I-751 application cases, the USCIS may issue a Request For
Evidence (RFE) asking for response in certain time. This RFE will
request a copy of documentation proving termination of the marriage,
and a request to have the joint petition treated as a request for a
waiver of the joint filing. This allows the alien applicant to obtain
the waiver, if the marriage has been terminated, without having to
re-file the I-751.
If there is no response to the RFE, or the response does not establish
that the marriage is terminated, the USCIS will adjudicate it as a
joint petition. The result will depend on the evidence of real
marriage. The I-751 application case may be forwarded to a USCIS field
office for an in-person interview to determine if the marriage was real
at the time when the couples entered into the marriage. It is often the
case that a marriage is genuine at the outset, but ultimately does not
survive.
9. The Waiver of Joint Filing Requirement to Remove the Conditions on Green Card
The
conditional permanent resident status is given to individuals who
receive U.S. permanent residence (Green Card) status via a recent
marriage to a U.S. citizen. If a marriage has been less than two years
in duration at the time U.S. permanent residence is granted, the status
of the foreign national spouse then is "conditional." USCIS Form I-751
is used to remove the conditions on residency.
The condition is that it
expires within two years, unless the Form I-751 is filed at the
appropriate time, to request that the conditions be removed. If the
Form I-751 application is approved, the foreign national spouse becomes
a U.S. permanent resident without any conditions. The conditional
status is an anti-fraud measure, and is necessary to provide updated
proof of a real marriage in support of the I-751 form.
- This form can be filed jointly, with both husband and wife signing the form;
- Alternatively,
it is possible to request a waiver of the joint filing requirement, if
the marriage was entered into in good faith, but was subsequently
terminated;
- It
is also possible to obtain a waiver of the joint filing requirement, if
the marriage was entered into in good faith, but there was abuse;
- It
is also possible to request a waiver of the joint filing requirement,
if removal of the foreign national spouse would result in extreme
hardship.
10.
Can a Widow of U.S. Citizen Apply for Immigrant Visa with Form I-130 by
Herself?
If an alien
spouse was married to a U.S. citizen, the alien spouse was in an
especially good position to get a Green Card in the United States. Even
if the U.S. citizen spouse died before filing the initial visa petition
of USCIS Form I-130 for the alien spouse, or before the Form I-130
petition was approved by USCIS.
For this kind of situation, the alien spouse may be able to carry on
and file the immigrant visa petition of USCIS Form I-360 by herself or
himself. Unlike other family beneficiaries, the alien spouse need not
have an Affidavit of Support filed on her or him behalf for this
situation. But there is a deadline to file the Form I-360. The alien
spouse must file the Form I-360 petition no later than two years after
the death of the U.S. citizen spouse.
11.
How Long Does It Take to Get My U.S. Citizenship
A: Most U.S.
Permanent Residents have to wait 5 years after receiving Green Card to
qualify for U.S. Citizenship. However, the immigration law gives a
break to spouses of U.S. Citizens.
If you are a U.S. permanent or conditional resident, you cannot apply
for U.S. citizenship until you have lived in U.S. as a lawful permanent
resident for at least five years. That means exactly five years to the
day. You can check your U.S. permanent resident card for the exact date
on which you became a permanent resident.
If you start out as a conditional resident rather than a permanent
resident, because you got your residence through your marriage to a
U.S. citizen, your two years as a conditional resident count as
permanent residence.
If you have been married for at least 3 years, and your spouse has been
a U.S. Citizen for at least 3 years, you are eligible for citizenship 3
years after you become U.S. Permanent Resident. Actually, you are
allowed to apply for naturalization 3 months before the end of your 3
year residence.
The U.S. citizenship application must be submitted by mail, using USCIS
Form N-400. USCIS will take a long time to process the N-400, to
arrange for you to be fingerprinted, and to call you in for the
interview at which it actually reviews your application, tests you on
your knowledge of English and U.S. government, and makes a decision on
whether to approve or deny you. USCIS may take at least 90 days to call
you in for your interview.
Question: I marriaed to a U.S. Citizen. What is the primary immigration process for the Green Card application?
Answer:
If you marry a U.S. citizen, you would not be eligible for U.S.
citizenship right away. But you might become eligible for a U.S. green
card, which can lead to U.S. citizenship. However, there are certain
requirements that must be met before you can apply for a green card,
and ultimately for U.S. citizenship after marriage to a U.S. citizen.
As the spouse of a U.S. citizen, you are what is called an immediate
relative in immigration law. There are no annual numerical limits on
the green cards issued under this category, and therefore no waiting
lists before you can apply.
The U.S. citizen spouse must start the process for the spouse, by
submitting a visa petition on Form I-130 to United States Citizenship
and Immigration Services (USCIS). The form must be accompanied by
evidence of the marriage being legally valid, namely a marriage
certificate, as well as proof that the marriage is bona fide, not
merely a sham to get you a green card.
12. My U.S. Citizen Husband Died Recently, What Happens for the Pending Form I-130 Petition?
If
you are waiting to immigrate to the United States on the basis of a
visa petition, filed by a family member who is a U.S. citizen or lawful
permanent resident, that person’s death will certainly make the
process more difficult.
But unlike in past years, when the visa petition always died with the
petitioner, you may still be able to get a U.S. green card. Your
success depends on your relative’s status in the United States,
your relationship to him or her, where you currently live, and whether
you have relatives in the United States who are willing to serve as
financial sponsors for you.
If you were married to or the minor child of a U.S. citizen, you are in
an especially good position to get a green card. Even if your U.S.
citizen spouse died before filing the initial visa petition for you
Form I-130 or before the petition was approved, you may be able to
carry on and petition for yourself and your minor children.
You
would file your visa petition on USCIS Form I-360 (Petition for
Amerasian, Widow, or Special Immigrant). Unlike other family
beneficiaries, you need not have an Affidavit of Support filed on your
behalf. But there’s a deadline. You must file the petition no
later than two years after the death of your U.S. citizen spouse. Also,
remarrying before you are approved for your green card will destroy
your right to it.
If a widow remained in the U.S. after the U.S. citizen husband and
petitioner died, while awaiting the result of Form I-130 petition,
widow will not be deemed as unlawful presence with the U.S. immigration
policy. This policy applies only to widow or widower who had a Form I-130
petition pending at the USCIS. If the U.S. citizen spouse never filed a
Form I-130 for the alien spouse, the widow or widower may file a Form
I-360 within the applicable filing period.
In the past, an immigration petition could not be approved if the
petitioner died while the petition remained pending. U.S. Congress had
addressed this scenario with a new statutory provision, INA 204. This
provision gave foreign nationals the ability to seek an immigration
benefit through a deceased qualifying relative in certain
circumstances. An USCIS officer may approve an immigration petition if:
* The applicant resided in the United States when the qualifying relative died;
* The applicant continues to reside in the United
States on the date of the decision on the pending application; and
* The applicant is at least one of the following:
1) A beneficiary of a pending or approved immediate relative immigrant visa petition;
2) A beneficiary of a pending
or approved family-based immigrant visa petition, including both the
principal beneficiary and any derivative beneficiaries;
3) Any derivative beneficiary of a pending or approved employment-based immigrant visa petition;
4) The beneficiary of a pending or approved Refugee/Asylee Relative Petition (Form I-730);
5) A foreign national admitted as a derivative T or U nonimmigrant; or
6) A derivative asylee.
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