Love has no frontier. True love may overcome the differences in nationalities, culture, and language. The final hurdle to a successful marriage between citizens of two different countries is, ironically, immigration law. Everyday, U.S. Citizens and permanent residents decide to marry citizens of another country or individuals from their home country. When these couples decide to establish their family life in the U.S., the foreign spouse must obtain a proper immigrant status through appropriate immigration and/or consular processing.

Definition of Marriage

We might all know what marriage means by common sense. However, in order to derive immigration benefits, marriage must be valid for immigration purposes. Marriage is recognized by the U.S. immigration if it is recognized by the law of the state where it occurs unless it contradicts U.S. public policy. Accordingly, marriages between persons of the same sex, marriages to those underage, polygamous or incestuous marriages, or marriages that were entered to obtain immigration benefits only are not valid for immigration purposes even if valid in the state where they occurred.

Marriage to a U.S. Citizen--- in the U.S.

When a U.S. citizen and a foreigner decide to have a marriage ceremony in the U.S., the immigration strategies will differ depending on where the foreign fiancé(e) resides at the time of that important decision.

If the fiancé(e) is outside of the U.S., then the U.S citizen may elect to petition for the individual and bring him/her over to the U.S. on the K-1 Fiancé(e) visa, without having to travel abroad. This process involves an I-129F petition filed with the immigration and then visa processing at a U.S. consulate abroad. From our experience, the INS processes such a petition relatively quickly, but the visa processing time itself can vary depending on the U.S. consulate (which ultimately decides the case).

In order to get the visa issued, the foreign fiancé(e) must present a police clearance, medical exam report, and other ‘bona fides’ and documentation assuring the U.S. authorities that the marriage later will be valid. Once the fiancé(e) obtains the K-1 visa and arrives in the U.S., the individuals must get married within 90 days before the fiancé(e) loses his/her status. After their marriage, they must then file an adjustment of status application with the local BCIS office where they reside. Considering the fact that such ‘adjustments’ can take 6-12 months in many jurisdictions, many people might wonder why individuals choose to process for a K-1 visa.

In reality, and in our experience, many couples do try to avoid this process by coming to the U.S. in visitor’s/B-2 status, which can then create a problem of misrepresentation or fraudulent intent since BCIS might later find that the applicant had ‘immigrant intent’ when s/he entered the U.S. claiming to be a temporary visitor for pleasure. Because of this problem, changes have recently been made for those who are able to go abroad, marry their loved ones, and not have to wait for the processing of an immigrant visa, which can often take a long time. This option, called a K-3 visa, is more fully discussed below. And I, for one, believe that the K-1 visa, which is still useful for those unable or cannot afford to go abroad, should be more streamlined than it is to encourage individuals to use this legitimate way of coming to the U.S. to join their future spouse.

Fiancé(e)s already in the U.S.

Often, a fiancé(e) may already be present in the U.S. studying, working, traveling, etc. when the couple decides to get married. In such a case, an immigrant petition and an application for adjustment of status should be filed together with the local BCIS office nearest the individual’s place of residence. Although such a process can be technically carried out by the individuals themselves, as with all other matters, I believe competent and experienced legal representation is a must in order to avoid unnecessary delays, and more importantly to anticipate, avoid and/or be prepared for legal issues and/or complications that so often arise. When such applications are properly filed, the foreign spouse will quickly receive work authorization and, if eligible, a travel permit while the petition/application is pending so that he/she can begin to live a normal life. The case itself, however, will only be approved after a marriage interview at the local BCIS. At such an interview, an attorney representation is allowed, and also recommended by the Service itself. At the end of the interview, the foreign spouse will receive a conditional green card for two years. An application to remove the condition must be filed before the card expires.

What if the foreign spouse has failed to maintain status or engaged in unauthorized employment at the time of filing of the adjustment application? The good news is that the usual statutory bar from adjustment of status in the U.S. will not apply to spouses of U.S. citizens. However, even a spouse of a U.S. citizen that entered the country without an inspection or that cannot produce evidence of legal entry, such as passport with entry stamps and/or an I-94, may still not be allowed to adjust one’s status without a special provision.

Marriage to a U.S. Citizen abroad

Sometimes an individual will choose to marry overseas in order to celebrate the marital union with family back in the home country or because the foreign fiancé(e) is presently abroad. In such cases, upon marriage, an I-130 immigrant petition will be first filed with the BCIS either here in the U.S. or, when eligible and resident in such a district, at the INS office abroad. When required to be filed at a BCIS Service Center (in the U.S.), as in most cases, these petitions commonly take several months to adjudicate It used to be that the such foreign spouses were stranded abroad for several months or even much longer for the 1/ petition to be approved, 2/ the approval cabled to the local U.S. consulate, and 3/ the consular interview scheduled, and the immigrant visa issued .In recognition of the negative impact such a delay has on these married couples, the Congress recently created a new visa (K-3) to allow the spouses of U.S. citizens to enter the U.S. even before they receive the immigrant petition approval, step 1. Under these new regulations, once an immigrant petition has been filed, the foreign spouse may apply for a K-3 spousal visa and enter the U.S. pending the resolution of his/her immigrant petition and apply for adjustment of status, as explained above, after arriving in the United States

Marriage to a Permanent Resident

Unlike in the case of spouses of U.S. Citizens, immigrant visas for spouses of permanent residents are limited in number. That is, even after the immigrant petition has been approved by the BCIS, the foreign spouse must often wait years before he or she can apply for an immigrant visa or adjustment of status. What is worse, during this wait, the foreign spouses of permanent residents are not entitled to legally stay or work in the U.S. without resorting to and maintaining another immigrant status such as F-1, H-1B, etc. Also, if these spouses ever failed to maintain status in the U.S. or engaged in unauthorized employment, they would be barred from adjustment of status when their visa finally does become available.

For this reason, in many cases, it is much faster and wiser for the permanent resident spouse to become naturalized i.e. obtain U.S. citizenship as soon as possible so that the foreign spouse can immediately receive an immigrant visa or begin to adjust his/her status as an ‘immediate relative’, a category that has no line whatsoever

If naturalization is not going to happen soon enough and the immigrant petition was filed before December 21, 2000, these spouses should now consider the new V visa option, which becomes available to them three years after the filing of the original immigrant petition. With a V visa, which can be processed either abroad or in the U.S., the spouses will be authorized to work and will not have to maintain a separate immigrant status to stay legal. One must remember that the V visa is only available to those who have waited apart (or illegally in the U.S.) for three years!

Again, it is unfortunate that many families have to wait many years for an immigrant visa either in anxiety or sometimes even in physical separation. Creating the special V visa was a valid effort to reduce such problems. However, it is still one step too short of fully recognizing the hardship these families have to go through because of such a delay. Marriage to a Nonimmigrant in the U.S

Lastly, foreigners marry foreigners too. When certain foreigners qualify for immigration benefits through employment and begin the immigration process, it is important that they marry their loved ones before they complete their immigration process (generally this is only on the employment-side since marriage to those awaiting an immigrant visa on the family side often do so as an ‘unmarried’ son or daughter). The reason is that the foreign spouse can be added to the immigration process while it is pending and therefore the married couple will obtain immigrant status at the same time. However, if the applicant who qualifies for immigration has already obtained his/her green card, he or she will have to maintain permanent resident status for five years before becoming eligible for naturalization. In the meantime, if he or she marries a foreigner, the new spouse will not receive any immigrant benefits until years later.

As I hope this article will demonstrate, there are many conceptual and procedural issues that are involved in obtaining immigration benefits based on marriage. Thus, it is extremely important that such plans are discussed with experienced and qualified immigration attorneys and the strategic issues are fully mapped out before rushing into decisions. Immigration matters can be a very heavy burden on any relationship. I encourage smart planning and execution, which will hopefully increase the happiness and security in marriage.