Frequently asked questions

I am a U.S. Citizen and my spouse is illegal. We live in the U.S., can we file for a Green card?

Marriage Based Petitions: If your spouse last entered the U.S. legally, or is 245(i) protected, and you are a U.S. Citizen, you may petition for your spouse and apply for a green card.

The process for petitioning for your spouse is as follows:

  • File an I 130 (family petition) and I 485 (adjustment of status) with the appropriate Immigration Service Center. The adjudication of marriage adjustment cases can take several months to over a year depending on various factors.
  • Both you and your spouse will be required to attend an interview with Immigration. At the time of interview, you will need to show proof that the marriage is bona-fide (legitimate). Immigration will review documents, such as address displayed on driver’s licenses, joint bank accounts, tax returns and utility bills.
  • If you have been married less than two years at the time of interview and the application is approved, the Immigrant will be issued a temporary/conditional two year green card. After two years, the Immigrant is required to file an I-751 petition to lift the conditional status on the green card and must continue to prove the bona fides of the marriage.
  • If you are married more than two years at time of interview, the applicant or beneficiary will receive a permanent green card.

What if my spouse did not enter legally or is not 245(i) eligible?

If your spouse did not enter legally and is not 245(i) eligible, you would still file Form I-130, however, your spouse would not be able to file for their Green Card in the United States but would have to return to their country for consular processing. Your spouse would also have to file a 601-A unlawful presence waiver so that they would be able to return to the United States after they have been approved for their immigrant visa through the consular processing in their country.

What is the purpose of a conditional 2-year  Green Card?

In 1986, Congress passed the Immigration Marriage Fraud Amendments (IMFA) and added these to existing immigration laws. The purpose of IMFA was to deter people from entering fraudulent marriages solely for the purpose of obtaining lawful permanent resident status, by creating a “conditional residence” period for immigrant spouses who entered into a marriage with U.S. citizen/lawful permanent resident spouses within less than two years of applying for residence. To apply for removal of these conditions, immigrant spouses must normally file joint petitions with their U.S. citizen/lawful permanent resident spouse and prove the ongoing existence and good faith nature of the marriage. The law included waivers of this joint filing requirement under certain circumstances, where the marriage was entered into good faith but legitimately terminated before the end of the conditional period, or where the applicant would suffer extreme hardship if s/he was forced to return her/his home country.

In 1990, Congress created additional Amendments to the law creating a special waiver specifically addressing the dangers experienced by battered immigrants. A battered immigrant may apply for a waiver of the joint petition requirement and file her own I-751 petition. This may enable the battered immigrant to leave the abusive relationship without having to rely on the abusive U.S. citizen/lawful permanent resident spouse.

Eligibility Requirements for I-751 Waiver Petitions:

Within 90 days prior to expiration of the conditional green card, both the immigrant spouse and the United States citizen spouse must jointly file an application with USCIS to remove the conditions on the immigrant spouse’s residence. This application is called a Form I-751, Application to Remove the Conditions on Residence.

What if we are no longer married after 2 years?

If the petitioner and immigrant spouse are no longer married after two years,  the I-751 may be filed alone by the immigrant spouse, only if the immigrant spouse can prove the following:

That they entered into the marriage in good faith, but that the marriage was terminated in divorce; and/or

That they entered into the marriage in good faith, but the marriage was terminated due to the death of the United State Citizen spouse; and/or

That they entered into the marriage in good faith, and that she was subjected to physical battering and/or extreme mental cruelty; and/or

That he/she would suffer extreme hardship if returned to their country of origin.

Fiancé/Fiancé(e) Petitions (K1 Visas)

I am a U.S. Citizen and am engaged to non-citizen. How can I bring my fiancé to the U.S?

If you are a U.S. Citizen and engaged or considering becoming engaged to a non-U.S. Citizen, filing a K-1 visa is probably the best option to legally bring your fiancée or fiancé to the U.S.

The K-1 Visa allows you to invite your fiancé(e) to the United States for a period of 90 days, during which time your fiancé(e) must either marry you or return to his or her home country. No extensions of time will be granted after the 90 days and no change of status is permitted.

If the relationship does not work out, you decide not to marry, and your fiancé(e) returns home, you are both independently eligible to file a subsequent fiancé(e) visa application if you so desire. You will have to file an IMBRA (International Marriage Broker Regulation) waiver if you file within two years of the first petition’s approval.

Lawful Permanent Residents (LPRs) of the United States are not eligible to file for a K-1 visa.

You are eligible to apply for a K-1 Visa if you meet the following requirements:

You are a U.S. citizen

You have personally met your fiancé(e) within the previous two years, if culturally acceptable and does not violate long-established customs, or would create extreme hardship for you or your fiancé(e)

You and your fiancé(e) are both legally free to marry under the laws of your fiancé(e)’s country as well as the laws of the U.S.

Proof of permission to marry if you or your fiancé(e) are subject to any age restrictions

You marry each other within 90 days of your fiancé(e)’s arrival in the U.S.

Once the Immigration Service Center approves the K1 petition, the appropriate U.S. Consulate will receive the paperwork in order to schedule your fiancé’s interview.

Immigration Lawyer, Connie Hill, Hackensack, NJ