MANY of us have seen the 1990 film “Green Card” where an American woman (Andie MacDowell) and a French man (Gerard Depardieu) enter into a fake marriage to get permanent residence for the Depardieu character. The film portrays an intense immigration interview taking place at the couple’s apartment — something that never occurs in real life.
More recently, the popular reality TV series “90 Day Fiancee” follows the journey of couples who obtain the U.S. visa for fiancées and have three months to get to know one another before deciding on marriage.
These shows dramatize a part of a complex and bureaucratic process that many couples go through to live together in the U.S. This article explains what the process really looks like these days and how immigrants can follow the right path to finish the green card journey successfully.
Three ways to obtain a green card for an immigrant married to a U.S. citizen
As one might expect, marriage to a U.S. citizen is one of the most common means of getting permanent residence in the U.S. The rules are quite different for those entered the U.S. illegally; they would typically need a waiver to pardon their unlawful presence here. I have written about that procedure earlier. You can find that article at: https://www.sonomacountygazette.com/sonoma-county-news/easing-anxiety-during-green-card-interviews/.
The following describes the three options for those foreign nationals here legally, or who are outside the country.
Option 1: A family petition followed by consular interview.
For those already married, or who will be married abroad, the standard manner for immigrating would be through the filing of a family petition through the U.S. Citizenship and Immigration Service (USCIS) and then an interview at the consulate in their home country. The couple should provide proof that their relationship is legitimate. In addition to a medical exam and background check, the immigrant spouse has a consular interview, which is usually short and results in a permanent residence stamp in their passport.
The process currently takes 12-18 months, depending on the consulate. The disadvantage of this would be government delays which can cause the couple to be separated for large periods of time, especially if the U.S. citizen needs to live in the U.S. while the petition is moving forward.
Option 2: Adjustment of status to permanent residence.
The second option would be filing for “adjustment of status” with the USCIS for the foreign national after they enter the U.S. on another visa. This is a one-step process which takes an average of 9-15 months at the moment. In the past, there was always an interview of the couple taking place in the local immigration office; but recently the Biden Administration has been approving many cases without an interview where the documentation submitted by the couple strongly suggests they have a bona fide marriage.
This procedure has the advantage of the immigrant spouse being able to remain in the U.S. with a work permit until the adjustment of status application is adjudicated.
It can be a good choice for those foreign nationals who are here on a tourist or other visa, or can obtain one. However, the immigration authorities may consider this visa fraud if the foreign spouse enters the U.S. on a non-immigrant visa (other than a fiancée visa) with a “secret” intent to marry and apply here. This option is usually appropriate only when the foreign national enters the U.S. without a definitive plan to marry.
Option 3: K-1 fianceé.
The third option would apply only to those not yet married. That would be the K-1 fiancee visa.
The K-1 visa process is very similar to option 1: the process starts with a petition to the USCIS, then more processing through the National Visa Center of the U.S. Department of State, followed by a consular interview at the U.S. consulate abroad.
The primary differences are: 1) the foreign national does not marry until after coming to the U.S. on the K-1 visa; and 2) he or she must marry within 90 days of coming to the U.S.; and 3) they then go through the Adjustment of Status process described as Option 2 above.
This option has the advantage of postponing the need to marry until after the foreign national comes and the couple presumably spends up to 90 days living together in the U.S. It therefore allows the couple additional time to test out their living together in the U.S. before committing to marriage and immigration to the U.S. It may also be necessary for those who cannot marry abroad and when the foreign national cannot get a non-immigrant visa — which is often the case for persons from poorer backgrounds and/or from developing countries.
Conclusion
With careful planning and preparation of the application package, almost all eligible foreign nationals applying based on marriage to a U.S. citizen should be able to obtain permanent residence in the U.S. The process is usually not as dramatic as in the movies, but it almost always results in a happy ending.
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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.
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Christopher A. Kerosky, Esq. graduated from the University of California Berkeley (Boalt Hall) Law School and has practiced Immigration Law for over 25 years. For 15 years, “SuperLawyers” named him one of the top lawyers in Northern California (2006-2020; https://profiles.superlawyers.com/california-northern/san-francisco/lawyer/christopher-a-kerosky/358dc9f1-b1c2-46b5-80cc-6e9610b1cd43.html). Atty. Kerosky has had an office in San Francisco since 1989. His law firm also has offices in Santa Rosa, Napa, San Rafael, Ukiah, Bishop and Los Angeles. He speaks Spanish and Polish fluently and conversational Russian and French. Since 2013, Atty. Kerosky has served as a Member of the Human Rights Commission for Sonoma County, appointed by the County Board of Supervisors to represent the 5th District. As part of his work with the Commission, Christopher helped found My American Dreams, a local nonprofit devoted to community education and advocacy for immigrants. Atty. Kerosky served as Honorary Consul for the Republic of Poland in San Francisco from 2004 to 2019 and as such, his office acted as the Polish Consulate in San Francisco. He was one of the longest serving members of the San Francisco Consular Corps. Atty. Kerosky resides with his family just outside Santa Rosa but also owns a house in the Bishop area.
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