A United States citizen or lawful permanent resident can petition to have their spouse immigrate to the United States (this process is sometimes called Immigration Through Marriage). The citizen or lawful permanent resident can petition for the alien spouse by filing the Form I-130 Petition for Alien Relative and establish the relationship.
If the I-130 petition is approved, then the alien spouse will have to go through one of two procedures to obtain lawful permanent residency (U.S. green card). Consular processing requires that the alien spouse attend an interview at an oversees U.S. consulate office to obtain a green card. The adjustment of status process allows the alien spouse to complete the entire green card process inside the United States.
Conditional Status in Immigration Through Marriage Cases
Individuals whose marriages were created less than two years prior to his/her grant of permanent residence are given a two year “conditional status” green card. Within 90 days of the alien spouse’s green card expiration date, both spouses may file Form I-751, Petition to Remove Conditions on Residence. Failure to file for removal of condition will result in termination of permanent resident status for the alien spouse.
It is the spouses who have the burden of proof to show that the marriage was entered in good faith (i.e. not for immigration purposes). If U.S. Citizenship and Immigration Services (USCIS) determines that the marriage is fraudulent, the alien spouse will be placed in removal proceedings. Marriages which are entered into for the purpose of evading immigration law is a crime. In addition, the alien spouse may be forever excluded from the United States.
In cases where the marriage was entered into in good faith, but the spouses separated within the two-year period, USCIS may still allow the parties to file for removal of conditional status. If, however, the parties are divorced, USCIS may exercise its discretion in granting the alien spouse a waiver to file for removal of conditional status without the other spouse. Grounds for waiver are as follows:
- Deportation would cause extreme hardship to the alien spouse
- The marriage was created in good faith
- The alien spouse was a victim of domestic abuse.
Kingston, Martinez & Hogan LLP provides comprehensive immigration assistance to individuals seeking to immigrate based upon relationships with family members, including marriage. Please Contact us to see if we can help with your immigration case.