Myths and Realities About Love, Marriage and U.S. Immigration
October 20, 2009
When you are in love and on the verge of marriage, everything seems possible, the world is yours—or so you think. As the song says, "Love and Marriage" go together. Add cross border love and U.S. immigration to the mix and love and marriage may get mixed up with headache, heartache, anxiety, separation, and confusion. The reality is that U.S. immigration is not very accommodating to the practicalities of global love, and not helpful to those eager to begin their lives together. Below is a brief listing of some of the myths and realities that apply in U.S. marriage based immigration.
Myth: I am a citizen of the great United States of America. I found my true love in Australia. We'll marry on the beach in Australia and then return to the United States together and live happily ever after as citizens of the United States.
Reality: If you and your spouse marry abroad and then intend to return to the United States to live, you will first have to file at least two immigration petitions with supporting documents to prove that you are really in love and really marrying, not just marrying for the greencard. One petition will first be filed with the USCIS in the United States, and then later, another at a U.S. consulate in Australia before your spouse will be allowed to enter the United States either as a lawful permanent resident or as someone who is married to a United States citizen who is coming to the U.S. to process for permanent residence. There are two distinct processes which you must evaluate for all their pros and cons, costs and timing. The complete process can take 6-12 months. Figuring out which one will go faster is like rolling the dice in Vegas.
Myth: My African boyfriend and I are young, we are in love, living in Africa where I am in the Peace Corps and we plan to marry. We are excited about our upcoming trips to the U.S. where we plan to attend the weddings of our dearest friends in the United States over the next few months. Our parents also want to throw us a celebration party at a resort after we are back in the United States. We'll file our U.S. immigration paperwork and then while we are waiting, come to the United States for a few trips and then go back to complete our processing in Africa.
Reality: After you have married, your husband may not be able to secure the required visitor visa to enter the United States for a short time while the permanent residence application is wending its way through the system. Both the consular officer making the visa determination and the U.S. Customs & Border Patrol officer who inspects your husband when you enter the United States may not believe that he will really leave after the visit. After all, you and your husband are married and have let the U.S. government know by filing the petition that you intend to reside in the United States. At either point, your husband could be turned around and forced to remain in Africa until your petition makes its way through the entire process.
Myth: My Thai girlfriend and I are planning to marry—we're so totally in love. But we don't want her stuck in Thailand while I start my new job in San Francisco next month. We'll just come to the United States together—she'll get a visitor's visa and then, we'll file the paperwork in San Francisco. That way, we won't be apart.
Reality: If your Thai girlfriend applies for, is issued and enters the United States on a visitor visa and then you file a marriage petition for permanent residence shortly after she arrives, she could face severe immigration consequences and possible denial of her greencard application. An immigration officer reviewing the application could determine that she had a preconceived intent to enter for the purpose of marrying and filing for permanent residence which is not permitted on a visitor visa. As a visitor, she is only permitted to enter for a brief visit and must intend to return to her permanent residence in Thailand. Even worse, the officer could determined that based on the visitor visa application and/or what your girlfriend told the officer was the purpose of her trip to the United States, she made a material misrepresentation in order to gain entry to the United States. In that case, you would have to file a waiver application and demonstrate through voluminous documentation that you would suffer extreme hardship if she were not allowed to immigrate. You could be facing a big mess of your own making. The proper way for someone with imminent plans to marry a United States citizen is with a K fiancé visa. However, as with the permanent residence application for those who are married, it is a lengthy, two petition process that could leave you separated for several (6-8) months or more. The government has no provision allowing for expedited petitions based on love and the need to be together. They are callous to your pleas for expedited processing based on longing and loneliness. You must wait in line and come in as the law requires or face the consequences.
Myth: My British fiancé is a bit of a bad boy—which makes him charming and cute to me. In his bad boy band days, he had a few minor runs ins with the law—for drunk driving, for a little fight, for possessing a joint. I am not sure when they happened or even exactly what happened, but they were definitely minor so we think they won't be a problem for him. After all, he's been to the U.S. a few times as a tourist and never had a problem.
Reality: Even minor run ins with the law, if they resulted in a judgment by an official, can make your fiancé inadmissible to the United States and ineligible for permanent residence. You will need to obtain court certified copies of all the documents for a lawyer to evaluate whether they constitute one or more convictions for a "Crime of Moral Turpitude". Almost all but the most very minor drug convictions also will make him inadmissible. If the convictions do rise to the level of making your fiancé inadmissible, the drug conviction may not be waivable, which means that your fiancé will be ineligible for U.S. permanent residence. If the convictions are able to be waived, you will have to file a waiver application with voluminous documentation to prove that you would suffer extreme hardship. This application could be denied and then you and your fiancé would not be able to reside permanently together in the United States. You will also need to review whether he traveled to the U.S. on the visa waiver before or after these incidents. The visa waiver form asks about arrests and convictions and if he did not disclose them, he may have made a misrepresentation of a material fact to gain entry to the United States, which would again require an extreme hardship waiver application.
Myth: The love of my life and I are both PhD students in Germany. We are young and poor, but that doesn't matter, we are in love, we plan to marry and then look for University jobs in the United States. We don't have any steady source of substantial income now because we are students. I haven't filed a tax return in many years because I don't earn much money. We'll figure this all out after we're in the U.S. and able to search for jobs there.
Reality: One of the important requirements for being able to immigrate to the United States as the spouse of a United States citizen is proof that the petitioner—you—has enough money that your German husband will not have to resort to U.S. public assistance such as food stamps, or other government assistance. Therefore, as part of the petitioning process, you must complete an Affidavit of Support demonstrating that you have income or assets at a level above the poverty level. This is generally demonstrated through tax returns, W-2s, or other proof of income or assets. Without being able to establish this threshold of income/assets, your spouse may not immigrate. If you know someone, such as your parents or sibling, who can demonstrate the required income, they may provide an Affidavit of Support as a co-sponsor. This is a significant obligation they undertake to provide financial support to your spouse for a ten year period which extends beyond any estrangement or divorce, messy or otherwise. A co-sponsor must carefully consider and understand all of the risks involved. Another issue you face is whether you are domiciled in the United States, as that is also a requirement for the Affidavit of Support. If you have been living overseas for an extended period and have not maintained your home in the United States, then you may need to first re-establish your domicile in the U.S. by moving here ahead of your spouse and then filing the immigration petition on his behalf. Of course, this means a lengthy separation while the petitions make their way through the process. There may be speedier alternatives depending on your particular situation.
Myth: My partner and I have been in an exclusive relationship, living blissfully together in Europe for about ten years. Together we have a five-year old child who is a United States citizen, and we're thinking about getting married under a new law in our country that allows same-sex marriage. Then, our dream is to return to the United States to live together, closer to my aging parents. I have been told that, as a U.S. citizen, I am allowed to immigrate my foreign-born spouse just so long as we are legally married.
Reality: Even though a same-sex couple may be legally married under the laws of another country, United States immigration law does not recognize such marriages. Federal immigration law also does not recognize the legal authority of states to marry same-sex couples. Unfortunately, if you are a same-sex married couple (or an opposite-sex couple married under the practice of common law), options are limited for a permanent move to the United States. Your foreign-born spouse could enter the United States as a nonimmigrant visitor for "visits" between six months and one year at a time, but she must maintain nonimmigrant intent and a foreign address abroad. She might try to get sponsored by an employer for nonimmigrant visa status that would also allow the employer to sponsor her for permanent residence. Her United States citizen child may become eligible to sponsor your wife for permanent residence but only after her child turns twenty-one.
Myth: My husband is the consummate global mover and shaker: his business takes him overseas for months and years at a time to a variety of diverse and interesting places. He is Brazilian and I am a United States citizen. We would like for him to become a permanent resident of the United States, but we are not sure whether – or for how long – we will live in the United States.
Reality: Once your husband is granted permanent resident status, he must take steps to preserve that residency. Typically, this means that he must reside "permanently" in the United States. Brief excursions outside the U.S. are permitted, of course, but he would usually be required to spend most of his time in time in the United States. The government allows exceptions to this general rule if your husband needs to spend significant time outside of the country for work, school or other purposes, however his intent must be to return permanently to the United States upon the completion of the business activity or educational program. Your husband would need to apply for a re-entry permit before leaving the U.S., which would serve as the government's acknowledgement that the trip is temporary. The re-entry permit alone, however, does not guarantee that the government will allow him back into the United States, particularly if he has been absent for more than six months. Ideally, you would apply for permanent residence during a period that he can remain in the U.S. (with occasional trips abroad) for at least three years. After that three-year period, your spouse may be eligible to apply for U.S. citizenship, and could thereafter travel freely without having to worry about maintaining residence. U.S. citizens living and working abroad may be subject to certain, possibly unfavorable, tax restrictions.
If the situation above was reversed, and you were the foreign spouse, you may be eligible for an expedited naturalization process (U.S. citizenship) immediately upon being approved for permanent residence, on the basis of your husband's employment abroad. This expedited process means that you would not have to maintain your residence status, nor would you have to wait for three years before being eligible to apply for U.S. citizenship.
While marriages between U.S. citizens and their foreign spouses can be challenging from an immigration law perspective, many couples are fortunate enough to have several options available to them to gain permanent resident status. Consulting with an experienced immigration attorney before taking the marriage plunge can be helpful – and may be critical – to ensure a smooth sail through international waters on the love boat. But, don't get caught up in the fallacy that, because a United States citizen is involved, the trip will be quick or easy.