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Sweethearts vs. Immigration Law: Timing Issues Related to Spousal/Fiancé(e) Petitions

Of the various immigration questions and situations clients bring to us, a common one is a variation on: “my foreign fiancé(e) (or spouse) is overseas and I live in the U.S., how can we settle in the U.S. together, with minimal delay?”

While modern travel and technology allow us to meet and woo mates from all corners of the globe, a true long-term love story will only play out if immigration regulations are complied with.  Below, we discuss eight (8) common scenarios, and some general guidance for each.  Naturally, each relationship and applicant will have their own specificities, and an experienced attorney should be hired to ensure the case is properly handled.  In the scenarios below, a U.S. citizen is the “petitioner” on behalf of the foreign national “beneficiary.” The analysis changes slightly if the petitioner is a resident rather than a citizen.

1) Choosing Between a Fiancé(e) or Spousal Visa (U.S. Citizen resides in the U.S., spouse abroad)

For individuals contemplating whether to marry before or after starting the immigration process, there are several considerations to take into account. The two processes require approximately the same amount of time – approximately 7-12 months for the beneficiary to be issued a visa to the U.S.  If the petitioner is in the U.S., and wants to get the process started as quickly as possible, filing the fiancé(e) petition saves time in that no marriage is required.  The parties must have met in person within the previous two years and must be free to marry, among other requirements.

With the Fiancé(e) Visa process, the applicant enters the U.S., and then must undergo another paper filing and fee in order to receive their Work Authorization Document and, eventually, Green Card.  Thus, another 4-8 months after the marriage and Green Card filing must pass before receiving the card.  By contrast, the Spousal Immigrant Visa does not require this additional step.  For those entering the country on a Spousal Visa, a Green Card will arrive in the mail within about a month of entry.

2) Choosing Between a Fiancé(e) or Spousal Visa (U.S. Citizen and spouse reside abroad together)

In situations where the U.S. citizen petitioner resides abroad, has married, and can meet local U.S. Embassy filing requirements, it is often preferable to file the Spousal Petition at the local Embassy or Consulate.  The petition there is often adjudicated much faster than in the U.S., often shaving many months from the 7-12 month total wait time.  In order the meet Affidavit of Support regulations, the petitioner must meet domicile requirements by having a principal residence in the U.S. and an intent to maintain it indefinitely.

Unlike a married U.S. citizen residing abroad, an expedited procedure for the Fiancé(e) Petition does not exist.  The petition would need to be filed in the U.S. and follow the timeline discussed in Example 1, above.

3) Can the Foreign Spouse Travel to the U.S. on a Temporary Visa, Immediately Marry and Stay?

Someone entering the U.S. on a Visitor’s Visa must genuinely be intending only to visit for a temporary purpose.  Whether the visit is for a business conference, to visit the Grand Canyon, or to visit family, the purpose of the visit is important.  That’s why the Consular Officer deciding a visa application asks about the purpose of an applicant’s visit, and why the CBP Officer at the airport usually asks again.

If the spouse enters the U.S. under a “temporary” pretense, and then files for a Green Card within 30 days, there is often an assumption of preconceived intent (fraud), which can make the Green Card application problematic. Filing within 31-60 days after entry raises a strong suspicion of fraud.  The nonimmigrant visa categories that cannot intend to acquire permanent status include B-1/B-2 Visitors, F-1 Students, J-1 Exchange Visitors, TN Workers or Visa Waiver (VWP) Visitors.

However, it is critical to note that spouses that are already in the U.S. in a nonimmigrant status and married (or are contemplating doing so) should review any potential Green Card aspirations in a confidential consultation with an attorney.  USCIS can deny an adjustment of status case as a matter of discretion and a finding of fraud may be a lifetime bar to adjustment of status.  At the same time, several important decisions handed down by the Board of Immigration Appeals (BIA) in the 1980s found that with regard to spouses of citizens, preconceived intent is not supposed to be presumed and should not be the basis for an AOS denial if it is the only adverse factor. (Another article, further exploring Preconceived Intent, is available here).

4) Can a “Long-Term Overstay” Foreign Spouse Adjust Status?

Whereas preconceived intent is primarily an issue when the Green Card is applied for soon after entry to the U.S., many foreigners are in the U.S. for months or years beyond their entry into the U.S. on a visa, and only then decide to get married and adjust status.

The rule is, whether the foreign spouse has been in the U.S. for 90 days or 9 years, he or she may still file for adjustment of status on the basis of a bona fide marital petition, assuming they are not otherwise barred.  An attorney would need to carefully review the beneficiary’s entire immigration and personal history, going back to before the original entry visa was applied for.  Assuming no inadmissibilities exist and no waivers are required, the spouse should be able to get her Green Card in the U.S.

If the spouse entered the U.S. without authorization or lost their I-94 (proof of lawful entry into the U.S.), the case becomes more complicated but may still be possible.

5) Can the Foreign Spouse Travel to the U.S. under the Visa Waiver Program, then Marry and File for a Green Card During Their 90 Day Visit?

Anyone entering the U.S. under the VWP is permitted entry for up to 90 days as visitors for business or pleasure without needing to obtain a visa.  In exchange, the visitor gives up any right to contest removal proceedings the government might bring against them.  By entering on VWP, a beneficiary spouse certifies to Customs and Border Patrol that she does not intend to stay in the U.S.

However, plans can change and U.S. immigration law recognizes this.  If the foreign spouse is in the U.S. based on the VWP, then the spouse can file for a Green Card based on marriage to a U.S. citizen.  Such an application is best made within the 90-day validity period of the VWP stay.  The adjustment of status filing, however, must be very carefully assembled.  The couple will need to be prepared to document and address that they did not have preconceived intent.

6) Can the Foreign Spouse Travel to the U.S. under the Visa Waiver Program, then Marry and File for a Green Card After Overstaying the 90 Days?

Whereas the process is more clear-cut for couples that file within the 90-day VWP validity period, USCIS adjudication of applications filed when the beneficiary overstays the 90-day period have historically varied.  Up until recent years, the attorneys around the country were experiencing different results depending on where their clients were residing.  Some USCIS offices were denying applications if the applicant had filed outside the 90-day period and then immediately removing the applicants from the U.S.; others were approving them; and others were holding them in suspense.

USCIS attempted to rectify this recently in a correspondence with the American Immigration Lawyers Association (AILA).  Essentially, the agency has declared that unless the VWP entrant has already received a final order of removal or is currently in proceedings, he or she is entitled to apply for adjustment of status as an immediate relative (including spouse), despite filing for their Green Card outside of the 90-day period.

7) After Petition Filing, can the Foreign Spouse or Fiancé(e) Travel to the U.S. on a Tourist Visa or VWP, then Marry and go Home?

Under this scenario, the U.S. citizen would file the paperwork on behalf of his spouse or fiancé(e) and then during the pendency of the petition, the spouse would seek temporarily admission to visit the U.S.

It is important to remember that while a Consular Officer at the Embassy or CBP Officer at the airport can deny anyone a visa or entry to the U.S. if they suspect that person will stay in the U.S. permanently, there are ways to rebut the presumption.  In fact, consular guidance relating to the Visitor’s Visa specifically provides that a fiancé(e) can be issued a B-2 visa if the Consular Officer is convinced that the fiancé(e) “intends to return to a residence abroad soon after the marriage”.  The Foreign Affairs Manual also provides for a visitor’s visa when the fiancé(e) wants to enter the U.S.: to meet their fiancé(e)’s family; to become engaged; to make arrangements for the wedding; or to renew a relationship with the prospective spouse.

For most visitors, a 6-month visit is authorized (90 days if entering under the Visa Waiver Program).  Following the conclusion of the visit, the spouse or fiancé(e) departs the U.S. and awaits their visa interview and issuance in their home country.

Couples often favor this scenario, as it allows them to minimize their time apart, while also fully complying with immigration law.  However, it is critical to receive legal advice throughout this process, as a denial of entry into the U.S. could severely complicate the pending Spousal Immigrant Visa plans.

8) Same-Sex Spouse and Fiancé(e) Visa Options

Following the Supreme Court’s June 26, 2013 decision to overturn a section of the Defense of Marriage Act (DOMA), defining marriage as between a man and a woman, federal agencies—including immigration authorities—have been swift to implement changes to immigration procedure to ensure that same-sex couples receive similar benefits under the law as heterosexual ones. A same-sex U.S. citizen can petition a fiancé(e) or spouse in the same manner that a heterosexual one can. See items 1 and 2 above, for timelines and general information.

Same-sex spouses need to keep in mind that, as in heterosexual marriages, the marriage will only be acceptable under U.S. immigration law if it was legal in the place it was entered into.  Therefore if a couple married in a country where same-sex marriages are not accepted under law, the marriage could not form the basis for a spousal petition.  However, in such cases, the U.S. citizen typically is eligible to file a fiancé(e) petition on behalf of his or her partner.

If the U.S. citizen petitioner lives in a U.S. state where same-sex marriage is not recognized, but the foreign-based spouse lives in a country where it is; marriage in the foreign country is sometimes a preferable option.

One of the bedrock foundations of U.S. Immigration Law is family unity, which is why spouses are given “immediate relative” treatment and typically have their visas processed much faster than other relatives. Couples that properly understand U.S. immigration law have the best chance of realizing their goal to settle in the U.S. with their sweetheart, with minimal delay or complications. The 8 scenarios described above are general in nature, and many variations can and do occur.  Schedule a consultation to speak with Khurgel Immigration Law Firm, for a detailed evaluation of your situation and assistance in preparing the case.


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