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Falling in Love Across Borders - March 2015

March 23, 2015

by Anne C. Lahren

They say you can’t help who you fall in love with, and love is complicated even under the best of circumstances. Things become even more complex when love crosses international borders. The United States immigration and nationality laws govern the legal processes for foreign nationals who desire to live and work in the United States, including specific rules and requirements for fiancé(e)s and spouses of U.S. citizens.

Whether you are a U.S. citizen who met the love of your life while living or traveling abroad, or became involved with a foreign citizen visiting or temporarily living and/or working in the United States, you need to proceed carefully in order to maximize your chances of successfully applying for and obtaining lawful permanent resident (“green card”) status for your partner. Different processes are involved depending on whether your fiancé(e) or spouse is abroad or already in the United States when you decide to file a petition on his or her behalf.

Scenario #1: Your fiancé(e) or spouse is abroad

When your significant other is abroad, you have two choices: 1) file for a K-1 fiancé(e) visa and get married within 90 days of your significant other’s entry into the United States, or 2) get married abroad and file an immediate relative immigrant petition for consular processing. While option 1 is generally more expensive, the fiancée petition is typically processed faster which means less time for the couple to be apart. It also has the advantage of giving the couple more time to be together before marriage to make sure this is really what they want to do.

Under the first option, the U.S. citizen petitioner files a fiancé(e) petition at the appropriate USCIS location in the United States, which establishes the relationship between the parties. The parties must be engaged to be married at the time of filing, must state their intention to marry within 90 days of the fiancé(e)’s entry to the United States, and must show that the parties have seen each other in person within the previous two (2) years (with some very limited exceptions).This first option also provides more time for the couple to decide if marriage is really the right option for them. For anyone who has watched TLC’s show “90 Day Fiancé”, the benefits of this extended courtship are clear. And, if the relationship does not play out as planned, it is far easier to break things off before getting married and the former fiancé(e) will simply have to depart the United States before the expiration of the 90 days.

Under the second option, the parties get married and the U.S. citizen spouse files an immediate relative petition for consular processing, which establishes that the parties are lawfully married and in a bona fide relationship. Once the petition is approved, the case is referred through the National Visa Center for further processing and then on to the designated Embassy or Consulate for interview and issuance of the immigrant visa. The spouse then enters the United States as a lawful permanent resident. In recent years, immediate relative processing has been painfully slow and followed by sometimes even longer processing times at the National Visa Center. However, once processing is complete, the spouse then enters the United States as a lawful permanent resident (or as a conditional permanent resident if the marriage is less than two years old at the time of entry into the United States).

Scenario #2: Your fiancé(e) or spouse is in the United States and entered legally (with inspection)

For a U.S. citizen whose fiancé(e) or spouse is already in the United States pursuant to a lawful entry (entry with inspection), the process is generally straightforward. Since there is no category for a fiancée who is already in the United States, the couple will need to be lawfully married before filing an immediate relative petition. Once the couple is married, the U.S. citizen spouse concurrently files an immediate relative petition along with an application to adjust status and the spouse may remain in the United States while the case processes through USCIS. It is critical to have proof of an ongoing and bona fide relationship to satisfy USCIS that the marriage is not for the sole purpose of obtaining immigration benefits.

Scenario #3: Your fiancé(e) or spouse is in the United States and entered illegally (entered without inspection or “EWI”)

If your spouse entered without inspection, he or she may be eligible for a provisional waiver of unlawful presence grounds of inadmissibility only. The provisional waiver, if approved, allows the spouse to remain in the United States while the waiver is processed and wait until the waiver is approved before leaving the United States for the consular interview. The waiver process is very complex and beyond the scope of this article.

Under all scenarios, a bona fide marriage between the parties is required in order for the alien fiancé(e) or spouse to obtain lawful permanent resident (“green card”) status. The #1 most important thing under all scenarios is to avoid any misrepresentations or false statements on any application or to any government official.

Author's Note: Every case is fact-specific and results can never be guaranteed. This piece involves a U.S. citizen petitioner and is only intended as a general overview of the processes involved. Different criteria may apply if you are a U.S. lawful permanent resident and seek to petition for permanent residence for your foreign spouse.