Are you thinking of applying for a green card and adjusting your immigration status through marriage to a U.S. citizen?  Here are some important issues that you do not want to overlook:

1.    How Did You Enter The United States?

Entered Without Inspection:  If you entered the United States without inspection (i.e. by crossing the Mexican or Canadian border or otherwise entering the United States without being inspected by an immigration officer), you cannot immediately adjust status in the United States, even if you are married to a United States citizen.  Rather, you and your spouse will likely need to file for a provisional waiver and prove that there will be extreme hardship to your United States citizen spouse.  These provisional waiver applications can be difficult to prepare and involve a complicated process, but with guidance from an immigration attorney, they can be successful. 

Unlike a regular waiver application, the provisional waiver can be filed while you are still in the United States, even if you would otherwise be subject to a 3-year bar or 10-year bar for unauthorized presence in the United States.  If the provisional waiver is approved, you will need to travel back to your home country briefly for a visit to the U.S. consulate there, after which you can return to the United States and re-join your spouse.

Entered On A Non-Immigrant Visa and Overstayed: If you entered the United States on a non-immigrant visa and overstayed, you can adjust status in the United States as the spouse of a United States citizen.  However, the immigration officer during your adjustment of status interview will likely ask you about your “immigrant intent” at the time you entered the United States.  See section 2 below for a detailed discussion of the immigrant intent issue. 

Entered With A Non-Immigrant Visa and Are In Status:  If you entered the United States with a non-immigrant visa and are currently in status, you can adjust your status to that of a permanent resident, but you still may be asked about “immigrant intent,” especially if you entered the United States within 60 days of getting married or filing for adjustment of status (see section 2 below). 

If you want more information about your entry into the United States might affect your green card application, please call us at (212) 203-0557 (NY) or (215) 558-7600 or email us for a free phone consultation. 

2. Have You Ever Misrepresented Your Immigrant Intent or Made Another Misrepresentation to USCIS?

One issue that some applicants for a green card through marriage have to overcome is that the United States Citizenship and Immigration Service (“USCIS”) will suspect them of misrepresenting their intentions to obtain a non-immigrant visa. 

For instance, this could happen if someone came to the United States on a tourist (B2) visa, and then immediately married his or her citizen spouse.  At the interview, the immigration officer will ask about the immigrant spouse’s intentions when he or she came to the United States, as it is may appear to the officer that the immigrant’s true intentions were to get married and remain in the United States.  This is sometimes referred to as the “preconceived intent” rule.   

One way of overcoming the preconceived intent rule is to wait a certain amount of time after entering the United States to get married and file your adjustment of status application.  The USCIS generally presumes that if an immigrant gets married and/or applies to adjust his or her status within 30 days of entering the United States, he or she misrepresented his or her true intentions. 

If the marriage or the adjustment application occurs between the 30th and 60th day of admission, the immigrant still must prove that he or she did not misrepresent his or her intentions to stay in the United States, but the USCIS does not presume misrepresentation. 

But if the marriage or adjustment application occurs more than 60 days after admission to the United States, USCIS does not consider it to be a basis for ineligibility.  Of course, USCIS can always investigate what they suspect to be a misrepresentation, but one sure way to raise an immigration officer’s suspicions is to get married or adjust status immediately after entering the United States. 

If you want more information about how the preconceived intent rule might affect your green card application, please call us at (212) 203-0557 (NY) or (215) 558-7600 or email us for a free phone consultation. 

3.  Do You Have Evidence That Your Marriage Is Legitimate (or, in USCIS Terminology, “Bona Fide”)?

One of USCIS’s primary goals in the marriage-based green card process is determining whether the immigrant and his or her spouse have a real or “bona fide” marriage, as opposed to a marriage solely entered into for the purpose of obtaining a green card. 

Obviously, marriage fraud is a terrible idea, and if the USCIS determines that you committed marriage fraud, that opens you up not only to criminal liability, but also creates a permanent inadmissibility bar for immigration purposes.  So if you are thinking of committing marriage fraud, think again -- it’s not worth the risk and USCIS is very experienced in figuring out which marriages are real and which are not. 

Assuming that you are in a real marriage, that doesn’t mean that USCIS knows that it is a real marriage, so it is very important to submit evidence with your application that shows you are in a real marriage.  General categories of evidence include:

- Evidence that you and your spouse live together (e.g. deed or lease)

- Evidence that you and your spouse share financial resources (e.g. statement for active bank account, joint credit card, beneficiary of retirement plan, insurance, wills/estate planning documents, etc.)

- Evidence of trips you and your spouse have taken together (e.g. itineraries, photos)

- Evidence of correspondence between each other, especially if you lived separately (e.g. call or e-mail logs, text messages, greeting cards)

- Photos with captions spanning the duration of your relationship 

- Notarized affidavits of support from family or friends who are familiar with you and your spouse’s marriage

It is important to gather this evidence to submit with your petition.  If the immigration officer never has a reason to suspect marriage fraud, the process and the interview will be much easier for you and your spouse.  

We work with our clients to put together thorough green card applications with a goal of making the process as smooth and stress-free as possible.  For a free consultation by phone about your marriage-based green card petition, please call us at (212) 203-0557 (NY) or (215) 558-7600 or email us. 

4.  Was the Immigrant Spouse Ever Married Before?

If the immigrant spouse was previously married to a U.S. citizen, and this marriage did not result in the immigrant becoming a permanent resident, USCIS will look very closely at the prior marriage, and you should be prepared to prove that your prior marriage was “bona fide” as well in case the officer has doubts about that marriage.  It would be advisable to save as much evidence regarding the prior marriage as possible to bring to the interview with you, as well as to get affidavits from friends or family who knew you when you were still together with your ex-husband or ex-wife and can attest to the fact that the marriage was real (even though it ultimately ended in divorce). 

If you are applying for a green card through marriage but had a prior marriage to a U.S. citizen, it is very important to consult an immigration attorney prior to filing your new application.  Please call us at (212) 203-0557 (NY) or (215) 558-7600 or email us for a free phone consultation. .   

5.  Have You Ever Falsely Claimed to be a United States Citizen?

One item that USCIS may ask the immigrant about is if he or she has ever falsely claimed to be a United States citizen.  The most frequent way this occurs is when an immigrant fills out an I-9 form for an employer.  One of the boxes asks about immigration status, and occasionally immigrants will check the “citizen” box (or on the old form, the “citizen or national” box), either inadvertently or purposefully. 

If you falsely claimed U.S. citizenship on an I-9 form after September 1996, that would technically be a bar to adjustment of status, and there would not be a waiver available.  The USCIS will sometimes ask specifically about false claims to citizenship on I-9's or even request the I-9's from employers.  There are arguments that can be made, especially regarding the older version of the I-9 form, but it is an issue that you should think about before filing for a marriage-based green card. 

If the immigrant spouse has ever voted or served on jury duty in the United States, that could also have involved a false claim to United States citizenship, and will be examined closely. 

6.  Have You Ever Been Convicted of a Crime?

If you have ever been convicted of a crime, the type of crime or crimes you have been convicted of is of great importance to USCIS, and can lead to your application being denied.  If you have a criminal record, it is extremely important for you to consult an immigration attorney prior to filing for adjustment of status.

* * *

Finally, please note that couples in same-sex marriages are now eligible to apply for immigration benefits based on their marriage, following the recent Supreme Court decision striking down the Defense of Marriage Act.  Please visit our sister website, www.lgbtimmigrationhelp.com, for more information about same-sex marriage and green card petitions.

* * *

Kate Lenahan and Alex Brophy have successfully filed marriage-based green card petitions on behalf of numerous couples, including many LGBT couples who have been able to file for immigration benefits following the recent Supreme Court decision striking down the Defense of Marriage Act.   Kate began to focus on immigration issues when she was a Legal Fellow at Immigration Equality, a non-profit organization that is dedicated to providing legal services to LGBT immigrants.  Alex’s immigration experience began when he was a judicial law clerk for the Second Circuit Court of Appeals in New York, a federal appeals court which adjudicates petitions for review from immigration court decisions from New York and other nearby states. 

E-mail or call Kate and Alex at (212) 203-0557 (NY) or (215) 558-7600 (PA) to set up a free phone consultation about your immigration issue.     

* * *

   The article above is intended to provide general information.  It is not legal advice and should not be used as legal advice.  For legal advice on your particular issues, you should consult with an immigration attorney who can familiarize himself or herself with your specific issues.