There are several sticky situations in the immigration process, plus a few details that KEPT confusing me during the early stages of the process. Here are a few:
1) The spouse of a US citizen can apply for permanent residency in the US based on marriage to a US (The USCIS phrases this as applying for permanent residency through a “family member.”) Once your spouse applies for residency, his/her status becomes “in between statuses”–meaning not legal or illegal. In most situations, the alien spouse will be given permanent residency. If your spouse committed a crime in the US or entered the US illegally, there may be difficulties getting permanent residency–consult an immigration attorney. (If he/she entered legally but overstayed a visa, that is not a problem–but see #3 about travel.)
2) In the permanent residency application process, some relatives (such as brothers and sisters) are placed on a waiting list and may wait a long time before their application is considered. This is not true for spouses. However, spouses will wait between the time they submit paperwork and the approval of the paperwork (as everyone does).
3) After getting married and submitting paperwork, YOUR SPOUSE MUST BE VERY CAREFUL IF HE/SHE WANTS TO TRAVEL OUTSIDE OF THE UNITED STATES–until receiving the greencard. After you sumbit the I-485 and I-130 paperwork, your spouse has NO STATUS. To go outside the US and re-enter, he or she must get Advanced Parole, or a piece of paper that gives official permission to travel from USCIS. Read about it here, but note the section called Caution. For a person who overstayed his or her visa, and applied for permanent residency, it is best not to travel even WITH Advanced Parole. People who overstay visas and leave the US are barred from re-entering the country for 3-5 years. If a person has Advanced Parole and has submitted I-485 and I-130, the border guard at the point of re-entry makes the final decision. If your spouse overstayed a visa, has Advanced Parole, and must travel, talk to an immigration attorney and USCIS first to be sure it’s okay.
4) You will hear repeatedly that a fiance “can NOT come to the US on any
visa except a fiance visa to get married.” Technically, a fiance cannot travel on a student visa, travel visa, and so on IN ORDER to get married. It is FINE if he/she comes on a B1 or B2 visa and DECIDES to get married while here. (This was our situation, and it was fine.)
5) Important documents to SAVE:
- The I-94 Arrival/Departure record–a little paper that is attached to the passport when a person enters the US. (My husband has needed this thing many times over the last 10 years.) This also has the Alien #–the foreign spouse will use it many times.
- The receipt INS gives you that they received your documentation–ours was yellow, I’m not sure how you can recognize it. But KEEP it. It will give you a sense of peace while you are waiting for the interview.
- Copies of everything you submit to the INS, plus copies of anything they give you just in case they are lost (receipt for I-485/I-130 paperwork, EAD card, passport stamp after your interview, and so on.
6) The immigration process is almost always faster and easier if you marry in the US, rather than a different country. This is especially true if he/she has overstayed a visa (see #3). I have read that there is a waiver for this in the case of marriage to a US citizen, but better to avoid hassles with USCIS. They can go on for YEARS–so, play it safe if at all possible! Of course, if there are deportation proceedings against your fiance or spouse, consult an immigration attorney before taking any steps.
7) Many people often give completely INCORRECT immigration advice–so seek information from several people, not just one. The worst advice we got was that my husband and I should leave the US and go to his country to get married–this was completely INCORRECT. My husband’s visa had expired. Had we taken this advice, it would have taken months or years to straighten out the problems it caused. Plus we would have been separated (me in the US, he in his country) while USCIS sorted it all out.
8 ) If your spouse entered the US legally but overstayed his or her visa, you can get married legally unless there are other circumstances–he/she committed a crime or something like this.
9) If your spouse entered the US illegally (without a visa), he or she might have a hard time getting permanent residency, despite getting married to a US citizen. Last year an experienced immigration attorney who works for USCIS told me that in this situation the spouse can get a waiver and stay. ***This is not immigration advice! However, it would not hurt to ask an immigration attorney if such a waiver might apply to your situation.***
Filed under: Immigration
