A foreign national can obtain legal permanent residency (a “green card”) based on marriage either by adjusting (changing) status in the US or obtaining an immigrant visa at a US consulate abroad. Either route requires a showing of a genuine marriage and admissibility and adjusting status in the US requires additional evidence regarding how the person entered the US. These cases involve many complicated areas of US immigration law and are not as easy as filing forms found online. The discussion below will summarize the main points of this process and why it is critical to obtain legal representation.
A foreign national may only adjust status in the US if he or she entered legally, which means with inspection either with a visa or without a visa under special exemptions allowed by US law, including the ESTA visa waiver program and Treaty NAFTA. Also, the foreign national could not have entered the US with a nonimmigrant visa but with the intent to remain in the US to obtain legal permanent residency (or immigrant status). This is because most nonimmigrant visas do NOT allow for immediate immigrant intent. The exceptions to this nonimmigrant or temporary intent requirement are the L-1 and H-1B visas, which allow the foreign national to enter the US with the intent to obtain legal permanent residency. The other exception to the legal entry requirement is if one was the beneficiary of an immigrant visa petition or labor certification filed before or on April 1, 2001, and was physically present in the US on December 20, 2000. This exception is known as section 245i and an attorney should be consulted regarding this route, since it involves a highly advanced review of the foreign national’s immigration history and how it satisfies this highly esoteric area of the law.
If a person is not eligible to adjust status in the US, then he or she must attend an interview for the immigrant visa abroad. If approved, an immigrant visa stamp is placed in the person’s passport and then they will receive the alien registration card after entry into the US. As discussed below, if a foreign national is inadmissible then he or she would needs a waiver to enter the US.
To show a real marriage, USCIS will request proof of a valid marriage, including valid divorce decrees or death certificates is applicable, since polygamy (marriage to more than one person) is not allowed. Evidence of a real marriage includes birth certificates of children together; jointly filed tax returns; jointly owned property or a lease in both names; joint utility bills; insurance, such as life, health and auto; medical and school records; declarations from friends and family, photos.
One must be admissible to be able to obtain legal permanent residency. Grounds of inadmissibility include certain overstays in the US for at least six months (but only if one departed after such overstay), crimes, prostitution, bigamy, terrorism, fraud for an immigration benefit, persecution of others, abduction and a host of other acts considered dangerous or unacceptable to the US. Some of these grounds of inadmissibility may be “waived,” which means that the US government can admit one despite such activity if the foreign national meets the standards for the waiver for that particular ground of inadmissibility. For example, if one lied in the past to obtain an immigration benefit (such as obtaining a B-2 visitor visa), then a waiver would require that the foreign national has a spouse or parent who is a US citizen or legal permanent resident and that qualifying relative would suffer extreme hardship if the foreign national could not enter the US or obtain legal permanent residency in the US through adjustment of status.
Another important aspect of obtaining legal permanent residency through a spouse is the financial contract that the US citizen spouse sponsor must sign with the US government. This affidavit of support (Form I-864 or I-864A) requires the US sponsor to show that he or she has sufficient income or assets for his household size and his or her tax returns for the last three years if required to do so. If the US citizen sponsor does not satisfy these rules, then a co-sponsor will also be required to file an affidavit of support contract with the US government. This financial contract is valid for 10 years or until the foreign national becomes a US citizen, departs the US permanently or dies. Divorce does not terminate the sponsor’s obligations. These obligations include that the US citizen sponsor support the foreign national at 125% of the federal poverty guidelines if the foreign national cannot support himself and that the sponsor repay the US federal, state or local government for means-tested welfare benefits used by the foreign national if the government seeks reimbursement. Also, there are other rules associated with the affidavit of support that are little known and quite problematic, especially regarding self-employed sponsors.
Determining a foreign national’s eligibility for legal permanent residency and whether the sponsor meets the affidavit of support requirements requires advanced knowledge of USCIS’s byzantine immigration laws. Some may try filing themselves thinking that it is as easy as completing and submitting forms to USCIS, but this is foolhardy. In fact, some applicants may find themselves in removal proceedings if the application is denied.
Another reason that it is critical that an immigration attorney assist in the case concerns one’s right to work and travel during this process. An applicant for adjustment of status may abandon such application and be stuck outside the US to consular process abroad if he or she does not follow the rules for foreign travel during this period. Also, if it is a foreign national’s intent to work in the US legally as soon as possible, then it is imperative that the application be filed correctly to avoid any delays.