U.S. immigration law, and our immigration services at the Serrano Law Firm, put a priority on uniting families — the law allows a husband or wife who is a U.S. citizen or legal resident to file an immigration marriage legal residency (green card) petition for his or her spouse. The immigrant spouse's unmarried children under age 21 may be able to receive legal residency (green cards) as well, provided that your marriage took place before the children turned 18.
As a Hartford immigration lawyer, one of the best parts of the practice is helping spouses successfully complete the steps involved in obtaining legal residency through a marriage petition.
Filing a marriage green card petition is a multi-step process requiring the submission of forms that are accurately and completely prepared, the presentation of sufficient documentation to support the petition, and an interview with a U.S. immigration officer who needs to be convinced that your marriage is legitimate and not simply an attempt for the immigrant spouse to become a legal resident (get a green card).
Having an experienced immigration attorney help you through the U.S. immigration process gives you the best chance of successfully obtaining legal residency (a green card) for your husband or wife.
For U.S. citizens who petition for legal residency for their spouses, the law allows the immigrant spouse to obtain a green card immediately upon approval of the I-130 marriage petition, as long as the immigrant spouse entered the U.S. legally. For legal residents (green card holders) who petition for legal residency for their husbands or wives, U.S. immigration law does not provide for an immediate green card for the immigrant spouse but gives preferential treatment for issuance of the marriage immigrant visa above everyone else except spouses, parents and unmarried children of U.S. citizens. The wait will still be several years and the immigrant will probably have to wait outside the U.S.
If the immigration petition is filed by a U.S. citizen, the alien spouse has an immediate visa number available as soon as the petition is approved. This means that the alien spouse does not need to wait to enter the USA or to adjust his or her status to a legal resident.
A successful marriage visa application where the immigrant spouse is overseas involves 4 steps: the U.S. citizen files Form I-130 to start the spouse petition process, upon approval the USCIS transfers the case to the National Visa Center (NVC) for further processing, the NVC sends the case to the appropriate U.S. embassy or consulate where the immigrant spouse attends a visa interview, the immigrant spouse has his or her passport stamped as a U.S. legal resident (green card status).
If the immigrant husband or wife entered the U.S. on a legal visa, such as a tourist or student visa, even if he or she stayed past the visa expiration date, upon approval of the Form I-130 filed by the U.S. citizen the immigrant spouse can apply file Form I-485 to adjust his or her status to a legal permanent resident (green card status) without having to wait or leave the U.S. If the spouse overstayed, the spouse should not leave the U.S. until first getting his or her legal permanent residency (green card status) to avoid being barred from re-entering the U.S. for 3 or 10 years, depending on the length of the overstay.
Problems, sometimes impossible to overcome, will arise when a U.S. citizen files a marriage immigration peition for a husband or wife who did not legally enter the country. Click to read discussion below.
A husband or wife of a permanent legal resident does not qualify for an immediate green card as soon as the marriage petition (Form I-130) is approved. Instead, the spouse is placed on a waiting list for approval of an immigration visa, which may take several years. The process can be speeded up if the permanent resident becomes a U.S. citizen, in which case a visa becomes immediately available.
An immigrating spouse of a green card holder is in the 2nd Preference category. (The 1st Preference is for unmarried children over age 21 of U.S. citizens.) For an idea for how long the wait will be, the U.S. State Department Visa Bulletin for July 2015 indicates that immigration visas became available that month for spouses of permanent resident’s whose marriage petition was approved before October 2007 (Nov 1994 for immigrating spouses from Mexico; Mar 2000 for immigrating spouses from the Phillipines).
Problems, sometimes impossible to overcome, will arise when a permanent resident (green card holder) files a marriage immigration peition for a husband or wife who did not legally enter the country. Click to read discussion below.
It will most likely be impossible for a U.S. citizen or legal permanent resident (green card holder) to successfully file a marriage petition for an immigrant spouse if the immigrant spouse was ever deported from the U.S. or entered the U.S. illegally more than once and stayed a total 12 months or more. U.S. immigration law bars such persons from the U.S. for life.
If a U.S. citizen or permanent resident files a marriage petition for an immigrant spouse who only once entered the U.S. illegally, the immigrant spouse can get legal permanent residence (a green card) but will need to apply for a waiver of the bar on returning to the U.S. for persons who overstayed (bar is 3 years for a 6-month overstay, 10 years for a 12 month overstay). (There is an exception for immigrants who had a valid immigration petition pending before April 30, 2001.)
Before 2013, it was necessary for the immigrant spouse to leave the U.S. and apply for the waiver. Now it is possible to apply for the waiver and receive a decision without having to leave the U.S. If the waiver is granted, the immigrant spouse must still go to the U.S. embassy or consulate in his or her country to receive their immigrant visa. With an approved waiver, it is very likely though not absolutely guranteed, that the consular officer will issue the immigrant visa.
If the waiver request is denied, the immigrant spouse must wait out the 3 or 10 year bar before receiving an immigration visa for the green card. There is no appeal. Therefore, it is very important to submit a complete and compelling waiver application. An experienced immigration attorney can help you file the strongest possible waiver request.
To be granted a waiver, it is necessary to prove that the immigrant's spouse in the U.S. will suffer extreme hardship, such as a verified medical need for the immigrant spouse to act as a caretaker for the spouse in the U.S. Reasons such as sadness at being separated are not sufficient reasons for a waiver.
Applications to waive the 3 or 10 year bar take time to be decided and can be difficult to obtain. It is impossible to say how the USCIS will react to any particular waiver request.
La ley de inmigración de los Estados Unidos pone una alta prioridad a unir las familias. La ley permite un ciudadano estadounidense o residente legal presentar una petición de matrimonio para obtener una tarjeta verde para su esposo o esposa. Los hijos de su su esposo o esposa que son menores de 21 años y no casados tambíen pueden obtener tarjetas verdes, a condición de que su matrimonio se llevó a cabo antes de que los niños completaron 18 años de edad.
El proceso de inmigración matrimonio incluye varios pasos y está diseñado para detectar los matrimonios fraudulentos, es decir, los matrimonios realizados sólo para obtener una tarjeta verde.
Usted tiene que presentar formularios debidamente completados, presentar documentación para apoyar la petición de matrimonio, y asistir a una entrevista de convencer a un oficial de inmigración que su matrimonio es legítimo.
Tener un abogado de inmigración con experiencia ayudar a preparar su solicitud y prepararse para su entrevista le da la mejor oportunidad de obtener con éxito la residencia legal (tarjeta verde) para su cónyuge.
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In June 2013, the U.S. Supreme Court decision, United States v. Windsor, overturned the Defense of Marriage Act (DOMA). This act had required the federal government, including the U.S. immigration service, to recognize only heterosexual marriage. As a result, American citizens and legal permanent residents (green card holders) could not file marriage petitions for their same sex spouses to receive green cards. Immediately after the Windsor decision, Homeland Security Secretary Janet Napolitano directed USCIS “to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
A U.S. citizen or lawful permanent resident in a same-sex marriage can now file a Form I-130 petition for his or her spouse to obtain a green card. Gay and lesbian couples must meet the same requirements necessary for opposite sex couples to establish that the immigrant spouse is entitled to a green card and, if the petitioner is a U.S. citizen and the immigrant qualifies, to adjustment of status (Form I-485). As with any marriage, USCIS looks to the laws of the place where the marriage ceremony occurred to determine if it is a legal marriage.
USCIS will reconsider unfavorable green card marriage and adjustment of status petitions filed prior to the Windsor decision if the denial was due to DOMA. In reopened cases, couples may submit additional and updated documents to support their petitions.
Despite these egalitarian sounding principles, the reality is that same sex couples filing marriage petitions may very well be subjected to greater scrutiny by the U.S. immigration service officials, either consciously or unconsciously. Having an experienced immigration attorney assist you with your marriage petition provides the best chance of obtaining legal permanent residence for the immigrant spouse.
In order to reduce marriage petition fraud, immigrant spouses who have been married less than 2 years receive conditional legal permanent residency (a temporary green card). An application (Form I-751) must be filed during the 3 months before the temporary green card expires to have the conditional status removed, that is, to get a permanent green card. If you fail to file on time, the immigrant spouse may be put in removal (deportation) proceedings.
When Form I-751 is filed, USCIS will take another look at your marriage to determine if it was legitimate or only for green card purposes. You will need to submit documentation to establish that your marriage is genuine and you may be required to undergo another interview.
Immigration interviews in Connecticut for marriage green card petitions take place at the Federal Building on Main Street in Hartford. An interview takes place in every case in which a U.S. citizen or legal permanent resident (green card holder) files an immigration petition for his or her spouse.
Most interviews take place with both spouses present at the same time, accompanied by their lawyer if they have one. However, if the U.S. immigration service has doubts about whether the marriage is valid, the spouses are questioned separately and their answers are compared for discrepancies.
The U.S. immigration service considers a typical marriage to be one in which both spouse have the same language and religion, take vacations together, celebrate birthdays and wedding anniversaries, spend holidays together, raise children, own property such as cars and houses together, and share bank accounts, credit cards and payment of household bills. When a lot of these things do not seem to exist in a marriage, the immigration service becomes suspicious.
You will most likely be nervous during the interview. Almost everyone is nervous to some degree and the immigration officer will understand that your marriage petition interview is a stressful event. Make sure you understand the questions asked of you. If you do not understand a question, ask for it to be repeated or rephrased. Do not guess what the question is meant to be. If you do not know an answer, simply state that you do not know. Do not provide extra information. Just answer the question that is being asked and wait for the next question.
Be aware of your online presence. If you use Facebook and you typically post information about your activities and special events, it may seem unusual to an immigration official if there are little or no posts about your relationship with your spouse. Your status should be married.
It is impossible to predict exactly which questions a U.S. immigration officer will ask couples seeking a marriage petition. From experience as an immigration attorney attending many marriage petition interviews, I recommend that a husband and wife prepare for the interview by doing the following:
This is far from a complete list of possible questions, but going over these items will help you prepare for your marriage petition interview and will give you an idea of what kinds of questions to expect.