Immigration & Marriage ⋆ Borene Law Firm, P.A.

Frequently Asked Questions About Immigration & Marriage

By Scott M. Borene*

1. What do I need to know about marriage to a U.S. citizen or permanent resident by a person who is not a U.S. citizen?

There are many different situations having to do with marriage by a non-U.S. citizen to a U.S. citizen or permanent resident. The answer depends on many factors such as whether the non-U.S. citizen is already in the United States or is in another country, whether the couple is going to get married in the U.S. or somewhere else, whether the U.S. spouse is a citizen or a Permanent Resident (i.e., one who has a “green card”), and several other factors. This section gives some basic answers to some of those considerations. However, if you are part of a couple made up of a U.S. citizen or permanent resident who is married to or marrying a non-U.S. citizen, you should consult with a competent immigration lawyer to make sure you know what you need to know.

2. I am not a U.S. citizen and have a U.S. citizen fiancé(e); what are our options?

2a. The K-1, Fiancé Visa

If you are outside the U.S., you and your fiancé(e) have a few options. First, your U.S. citizen fiancé(e) can file a petition with the USCIS on your behalf for a fiancé (K-1) visa, using the USCIS’s Form I-129F. After the USCIS approves the petition, you would go to a U.S. consulate in your country and apply for the K-1 visa. This visa allows you to come to the United States for up to 90 days, during which time you must get married to the fiancé(e) who sponsored you, or depart the U.S. If you decide not to get married during that time, you generally are not allowed to stay in the United States beyond the 90 days. If you do get married, then you are allowed to stay in the United States with your spouse and should apply for Adjustment of Status (see below) so that you can become a Permanent Resident. You will be able to apply for employment authorization so that you can work in the U.S. while you are waiting for your Adjustment of Status application to be approved.

2b. Obtaining an Immigrant Visa Abroad

You can also get married outside the U.S. and then apply at a U.S. consulate for an Immigrant Visa. If the consulate approves your visa, you will be able to enter the U.S. as a Conditional Permanent Resident and will not have to apply for Adjustment of Status once you arrive. You will, however, need to apply to remove the conditions later (see question 5 below).

3. What if I am not a U.S. citizen, I am outside of the U.S., and I am already married to a U.S. citizen?

If you are not in the U.S., then your U.S. citizen spouse should file a petition with the USCIS on the USCIS’s Form I-130 (called a “Petition for Alien Relative”). You then usually have two options.

3a. The Nonimmigrant K-3 Visa for the Spouse of a U.S. Citizen

One option is that when the USCIS notifies your spouse that the I-130 has been received (but not processed yet), your spouse can file another petition on your behalf for a K-3 visa (using the same I-129F Form discussed in question 2 above). When then I-129F is approved, you would go to a U.S. consulate in your country and apply for the K-3 visa. This is similar to the K-1 visa option described in question 2, but in this case the K-3 visa allows you to come to the U.S. as the spouse (as opposed to the fiancé(e)) of the U.S. citizen. Because the K-3 visa is a nonimmigrant visa, you will need to apply for Adjustment of Status after arrival in the U.S. (see below).

3b. Obtaining an Immigrant Visa Abroad

The other option is to wait until the USCIS approves the I-130 petition, and then apply at a U.S. consulate for an Immigrant Visa. If the consulate approves your visa, you will be able to enter the U.S. as a Conditional Permanent Resident and will not have to apply for Adjustment of Status once you arrive. You will, however, need to apply to remove the conditions later if you have been married for less than 2 years at the time the immigrant visa is approved (see question 5 below). This is the same process as that described in section 2b above.

Besides avoiding having to apply for Adjustment of Status, this option may take longer from the time of the I-130 petition being filed until you are able to come to the U.S. to join your spouse. That is because the I-129F petition is supposed to be processed more quickly than the I-130. Therefore, which option you choose partly depends on how important it is for you to arrive in the U.S. quickly.

4. What if I am a non-U.S. citizen already married to a U.S. citizen and I am already legally in the U.S. in a non-immigrant category such as F-1, H-1B, etc…?

If you are a non-citizen, are legally in the U.S. and are already married to a U.S. citizen, you are generally eligible to apply for Adjustment of Status. In other words, you can apply for a “green card” inside the U.S. and may not need to go to a U.S. consulate abroad to obtain an immigrant visa. You do this by filing an Adjustment of Status Application (Form I-485) with the USCIS. There are a number of other forms and documents that need to be filed with the I-485 and the process can be complicated. While your application is pending, you can apply for work authorization and will usually be allowed to work in the U.S. while you are waiting for your “green card”. Processing time generally takes one year or more.

The USCIS will probably ask you and your spouse to come in for an interview as part of the application process. If the USCIS approves the application, you will become a Conditional Permanent Resident and will have to apply to Remove the Conditions (see question 5 below).

5. What do I need to do if I am a Conditional Permanent Resident?

A Conditional Permanent Resident (CPR) is as much a Permanent Resident as anyone who has a “green card”, but has been married to the U.S. citizen spouse for less than two years when they become a Permanent Resident. In this case, he or she must apply to “Remove the Conditions” of his or her permanent residency. This is done to make sure that the marriage is not a “sham” marriage. In other words, you must demonstrate to the USCIS that you did not get married solely for immigration benefits. Therefore, during the period between 21 and 24 months after the date you became a CPR, you must file a “Petition to Remove the Conditions on Residence” (Form I-751) with the USCIS. You and your U.S. citizen spouse must both sign the petition, except in limited situations where you cannot get your spouse to sign the petition.

You may be asked to come in for an interview at the USCIS, along with your spouse, as part of the petition process. When the USCIS approves the petition, you will have the conditions removed and will be a Permanent Resident (i.e., without condition). You should also receive a new “green card” that does not show the date your CPR status expires.

6. How do I become a U.S. Citizen if I am married to a U.S. Citizen?

In most cases, a Permanent Resident (PR) has to wait 5 years before being eligible to apply for naturalization as a U.S. citizen. However, Permanent Residents who are married to a U.S. citizen may apply for naturalization after only 3 years of marriage to a U.S. citizen. This is true even if you originally became a Permanent Resident based on a different reason than marriage to the U.S. citizen. For example, it is possible that a non-U.S. citizen becomes a PR based on an employer’s sponsorship and the person subsequently marries a U.S. citizen. In such a case, the person still must have been married to a U.S. citizen for at least 3 years before being eligible to apply for naturalization. The Application for Naturalization (Form N-400) may actually be filed up to 90 days before the date the applicant is eligible for citizenship. Therefore, one could file approximately 2 years and 9 months after becoming a Permanent Resident if married to a U.S. citizen. Note that time as a Conditional Permanent Resident counts toward the time needed before applying for citizenship.

*Scott M. Borene is the Founder and Managing Attorney of Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Scott Borene was selected by other lawyers as 2018 Lawyer of the Year in Immigration Law as noted by The Best Lawyers in America and Minnesota Monthly magazine. He has been repeatedly recognized as one of the Top 20 Lawyers in the World “most highly regarded by other lawyers” in corporate immigration law. He is listed in the Best Lawyers in America and acknowledged as an Immigration Law Super Lawyer. He is often called upon to act as an “expert’s expert” to advise other experienced immigration lawyers on complex immigration matters. Scott Borene is a past Director and a past Member of the Board of Governors of the American Immigration Lawyers Association (AILA), the world’s largest professional organization of immigration lawyers. In 2002, he was the founder and Conference Chair of AILA’s Global Immigration Summit in New York City, the world’s largest conference of global immigration lawyers. He has written many articles on immigration law and is a frequently invited expert speaker on immigration topics at AILA National Conferences and other major national and international legal conferences. He is the Editor-in-Chief of many leading professional reference books for immigration lawyers including The Global Immigration Guide: A Country-by-Country Survey and The Global Immigration Guide: Crossing Borders for Business, AILA’s most comprehensive books on Global Immigration. He served as Editor-in-Chief of Immigration Options for Academics and Researchers (2005), AILA’s leading Expert Occupational Handbook on immigration issues in higher education. He is the author of Dr. Yes – Some Practical Strategies for the Diagnosis and Treatment of Immigrant Visa Cases of Health Care Professionals. Scott Borene attended Harvard University in Cambridge, Massachusetts as a National Merit Scholar. After graduation from Harvard, he attended William Mitchell Law School in Minnesota. Scott Borene has more than 30 years of experience helping employers obtain work visas for key international talent. Scott Borene can be reached at sborene@borene.com.