The Top 4 Mistakes in Immigration through Marriage

About 21% of all immigrants enter the US through family-based green cards every year. Many people believe that getting a green card through marriage is one of the fastest and easiest ways to become a US citizen, but this is not necessarily the case. Things can go very wrong with this type of green card application, especially if it’s not a valid relationship.

Below are the top things you need to know about marriage based immigration.

1) Assuming getting married automatically makes you a US citizen

An immigrant cannot become a citizen simply through marriage to a US citizen. Not everyone can apply to be a US citizen even if they married one, and there are qualifications that need to be met.

  • You must show a lawful entry, valid marriage with evidence of living together, and a clean record with law enforcement. Ever seen The Proposal? You will be expected to “prove” that you have a valid relationship with the person you have married.
  • Also it is important to know that if you entered the US illegally, you cannot apply through marriage for a green card in the US.  This law went into effect after April 30, 2001, when former Section 245(i) of the Immigration Act expired.  There are exceptions to this which should be reviewed with an experienced, highly skilled immigration attorney, which I outline briefly below.
  • All US citizens who file for their immigrant spouses must show a minimum level income of their tax returns to satisfy an “affidavit of support.”  The rule exists to ensure that green card holders will not be likely to become “public charges,” i.e., end up on welfare.
  • A medical form must be completed by a doctor approved by the Immigration Service as part of the marriage based immigration application process. You can read my post on what to expect in a Green Card Medical Exam here.

2) Assuming that marriage is a quick way to get a green card

It can take a matter of months to get your green card after you have married a US citizen. If you do satisfy the Immigration Service and your marriage is less then two years old, you will be approved for a two year (conditional) green card.  This card must be renewed through “removal of conditions” with more paperwork. Within three or five years, you may then qualify to apply for US citizenship. Typically an immigrant must be able to read, write and understand spoken English to naturalize, but as with many things, there are exceptions to that rule that you can read about here.

3) Failing to take criminal activity or boarder crossing into account

  • In March 2013, a new waiver called an “I-601A” went into effect.  This waiver allows border crossers (and certain other immigrants unable to apply for green cards through marriage to US citizens) to complete much of the process here. Immigrants with approved I-601As make a brief trip to an Embassy to receive an immigrant visa (green card).  You should not be outside the US for more than a few weeks before lawful re-entry.
  • An immigrant who has committed a crime, fraud or other potential violation of law MAY be eligible to file an I-601 waiver.
  • The area of waivers is complex. Legal assistance by an experienced and skilled immigration attorney is strongly advised.

4) Not applying for marriage-based immigration if you are gay even if you are from a country where it is illegal

The same rules and exceptions apply (isn’t that what makes our country so great?). After the 2013 US Supreme Court ruling in the Windsor case, the rules on marriage based immigration apply equally to same sex and opposite sex couples.  It is irrelevant if a gay immigrant lives in a country where same sex marriage is not legal. The key is that he or she marries a US citizen lawfully in a jurisdiction that recognizes same sex marriage.

Remember…

It is always advisable to get help from the best immigration lawyer. Even if you think your case is easy, complications can happen that a professional could help you avoid. If you have any further questions about marriage based immigration or any other immigration-related issues, please do not hesitate to contact me at Harlan York & Associates.

 

Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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