Through Marriage to a US Citizen or LPR

Every day, U.S. Citizens (USC’s) and Lawful Permanent Residents (LPR’s) marry persons from other countries. To live and work in the U.S., the foreign spouse needs a Marriage-Based Green Card (MBGC).

Citizen Versus Resident: Differences

Foreign spouses married to USC’s can secure MBGC’s much more quickly than if married to LPR’s. Reason: Immigration law prioritizes family unification for immediate relatives of USC’s. “Immediate relatives” include spouses, minor children and parents of USC’s. These relatives fall outside the family immigrant preference system. So there are no visa delays or backlogs. An immigrant visa is “immediately available” to spouses of USC’s.

In contrast, spouses of LPR’s must immigrate to the U.S. within the Family 2A immigrant preference category. This involves both backlogs and delays. Even so, it is sometimes possible for the couple to unite in the U.S. with careful nonimmigrant visa planning. When the LPR spouse later becomes a naturalized USC, the foreign spouse will qualify as an “immediate relative” with a corresponding immediate immigrant visa and MBGC.

MBGC Fact Patterns

Every MBGC case is different! Here are 18 typical situations we have seen in our more than two decades of MBGC practice – most with happy endings. (The rare exceptions are prospects who contacted us too late!) Chances are, one of the following fact patterns is similar to your own:

1. A foreigner enters the U.S. lawfully as a nonimmigrant student, tourist, exchange visitor, temporary worker, or visa waiver admittee – then meets and marries a U.S. Citizen (USC) or Lawful Permanent Resident (LPR) inside the U.S. They plan to live in the U.S. What immigration paperwork should they file, when should they file it, and how long before the green card will be approved? What about work cards, travel documents, Social Security cards, and state driver’s license? (Note: This is easily the most common and routine MBGC situation!)

2. USC is in the U.S. The foreign fiancé(e) is abroad. The couple wants to plan a wedding in the U.S. Will the fiancé(e) be allowed to enter the U.S. to marry, will the foreign relatives be allowed to attend the wedding, and how long will it take to process the paperwork of the fiancé(e) and any family members attending the wedding? What steps are needed to finalize the foreign spouse's MBGC after the wedding?

3. USC is in the U.S. The foreign fiancé(e) is abroad. If they plan a wedding in the fiancé(s) country, how will the foreign spouse immigrate to the U.S. after the wedding; can the couple avoid a temporary separation; and how long will the immigration process take?

4. A Central American national enters the U.S. illegally -- or enters lawfully on a nonimmigrant visa then overstays. The national then marries a USC. How will this affect their immigration planning? In an "illegal entry" situation, does it matter how long the foreign spouse has been “unlawfully present" in the country, and how does this affect immigration planning? If the foreign spouse has taken trips back to the home country before or after the marriage, how will this affect the couple’s immigration planning?

5. A foreigner enters the U.S. on a K-1 fiance(e) visa but marries the sponsoring USC spouse more than 90 days later. How does this delay affect their immigration planning?

6. A foreign chef enters the U.S. on a K-1 fiancé visa, then marries his sponsoring USC wife. But they never file MBGC paperwork. They later divorce. Husband then re-marries his current USC wife. They have U.S.-born children. Is he legally eligible to secure a green card inside the U.S.? How? What are the consequences if he leaves the U.S. before resolving his immigration situation?

7. USC husband marries his foreign wife inside the U.S. He is still in school and not yet working. She has a job but earns very little. Will lack of money hurt the wife’s MBGC chances, and what can the couple do to solve this problem?

8. A female foreign student, studying in the U.S., cannot divorce her foreign husband under the laws or culture of her native country. She meets Mr. Right, a USC. They want to marry. Can she divorce her foreign husband in the U.S., then marry her USC sweetheart to secure an MBGC through him?

9. USC husband marries foreign wife inside the U.S. -- but the couple never files MBGC paperwork. They then separate and divorce. What immigration benefits, if any, is the foreign wife entitled to? Does it matter whether the husband abused his wife?

10. The foreign spouse enters the U.S. lawfully and marries a USC. But they never file MBGC paperwork for the foreign spouse. The USC spouse then dies. Can the foreign widow(er) now obtain a green card inside the U.S.? Does it matter how long they were married before the USC spouse died?

11. USC husband marries foreign wife inside the U.S. They secure an MBGC for the wife -- then divorce within two years of their marriage. Can the foreign wife keep her green card? Are the procedures any different if they divorce two years after their marriage?

12. A USC and his foreign fiancée plan to marry in the U.S., live in the U.S. for a time, then work and live abroad for several years. How will this affect the couple's immigration planning?

13. A USC male, 55, was previously married to and divorced from an American wife. He meets a much younger foreign woman online through a "marriage broker" website. He travels to her home country, where they marry. Now he wants to bring her to the U.S. What additional immigration laws must the husband comply with? What practical problems is this couple likely to face? If the husband has previously attempted to sponsor another foreign woman to the U.S., what additional step must he follow to bring his new wife to the U.S.?

14. A USC husband and foreign wife live in Europe for several years. Husband suddenly loses his job. Foreign wife has no green card. Husband wants to return to the U.S. right away to accept a new job offer. Can the foreign wife enter the U.S. under the visa waiver program, then file her MBGC paperwork inside the U.S.? Does it matter how long she waits to file that paperwork?

15. A USC husband and his foreign wife live in South America for several years. The USC husband plans to retire and bring his foreign wife to the U.S. six months later or twelve months later. When and where should this couple file the immigration paperwork for the foreign wife under each of these time frames?

16. A couple secures an MBGC for the foreign wife, but then moves to Asia for several years, with few ties to the U.S. They then relocate back to the U.S. The wife effects a successful re-entry to the U.S. by presenting her old green card. The wife now wants to apply for U.S. Citizenship. What problems is she likely to face in naturalizing, and how can they be cured?

17. A foreign couple is in the U.S. in lawful nonimmigrant status. The wife is being sponsored for a green card by her U.S. employer. The husband is convicted of a simple battery involving a domestic dispute with the couple's son. How will this affect the husband's green-card eligibility? What steps can he take to cure this problem? How will this affect the other family members' green-card eligibility?

18. A Korean national enters the U.S. as an F-1 foreign student. He marries an American wife. They separate but never divorce. The Korean then meets another American woman. They move in together and plan eventually to marry. Meanwhile, though, the wife calls ICE (Immigration and Customs Enforcement) to "get her no-good husband deported." The ICE official contacts the Korean. What should he do and NOT do?

Getting Immigration Help

Precisely because each of these situations is different, each also requires a different immigration strategy. MBGC cases always involve more than just “filling out the right forms.” Every alien who wants to immigrate to the U.S. based on sponsorship by a USC or LPR spouse should consult an experienced immigration lawyer to learn:

1. What immigration strategies will work?

2. What strategies may look promising but will not work?

3. If there are two workable strategies -- there often are -- which will prove the most speedy and cost effective? For example, it is not always best for a USC husband to bring his foreign wife to the U.S. on a K-3 nonimmigrant spousal visa. In our recent experience, and depending on consular processing efficiency in the home country, an immigrant visa can prove speedier, less costly, and easier than the K-3 option.

4. What immigration agencies are involved, where should the agency forms be filed, and how much are the government filing fees?

5. How much are the lawyer fees for the chosen strategy? What payment plans does the attorney offer? Is the scope of the attorney’s services clearly disclosed in a written attorney-client contract that the client is permitted to examine and compare before any retainer is paid?

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Please note: The information at this page is general in nature. It does not create an attorney- client relationship. You rely on it at your own risk. We urge you to consult with qualified immigration counsel for help with your own immigration situation.

Copyright 2005-2008 Everett P. Anderson. All rights reserved.