Andy Semotiuk – Pace Immigration: An American and a foreigner meet.  They date, fall in love and marry. Now they want to live together. Or while still dating, they plan to get married and settle in the United States.  This goal, to live together in the United States, requires a strong familiarity with U.S. immigration laws.  The immigration process can be a daunting one. The best approach is to study the options and procedures that are available.  To help in that process, this article will provide an introduction to sponsoring a spouse for an American green card.

SETTLING IN THE USA

An individual seeking to reside permanently in the United States will be looking to obtain a green card.  Before considering spousal sponsorships, there are several other ways through which people can apply for a green card that should be considered.  In some instances, these ways may be preferable to a spousal sponsorship, particularly if the couple does not want to add the stress of dealing with immigration questions to their married life. For instance, you may qualify through the employment category, or as an investor. So consider that question first and then turn back to the spousal options if the others do not work.

If spousal sponsorship is the way to go, first and foremost, the question to face is whether the marriage is truly real, since marriage solely for the purpose of obtaining permanent residence is not allowed.  To learn more about this aspect, the film The Proposal starring Sandra Bullock is a good primer.

Assuming that your relationship is not merely a marriage of convenience for immigration purposes, spousal petitioning does have certain benefits.  For instance, there is no wait time for applying and there is no quota for the number of spouses that can receive green cards in any given year. If you qualify through your spouse, but your marriage is less than two years old, you will obtain a two-year conditional status, which can subsequently be adjusted to permanent status.

There are actually three different spousal sponsorship scenarios in U.S. immigration: 1) applying to join your spouse in the U.S. i.e. consular processing, 2) applying to remain with your spouse in the U.S., i.e. adjustment of status, and 3) applying to enter the US for the purpose of marrying a fiancée i.e. fiancée visa.

Joining your spouse in the U.S., i.e. Consular Processing

The application to join your spouse in the U.S. may take about 12 months.  Whereas previously an application would require you to wait outside of the U.S. for the entire sponsorship period, rules put in place in 2001 allow you and your children to obtain K-3 temporary non-immigrant visas to the U.S. and process the paperwork within the country.  However, once you’ve applied for a green card, it is not always guaranteed that you will get a non-immigrant visa should you desire a temporary stay in the U.S. during the processing period.  Still, it is worth the try by applying for a K-3 visa.

It is also worth mentioning that entering the U.S. on another temporary visa after the marriage, as for example as a B-1/B-2 visitor if it can be done at all, (which does not involve the long wait that a K-3 visa may entail of say 8 – 12 months), is not always a good remedy. Applying for a green card from inside the country in such circumstances is not looked upon favorably, although an application will not be automatically denied solely on that basis. More about this below.

Remaining with your spouse in the U.S. i.e. Adjustment of Status

There are certain benefits to applying for a green card from within the USA.  The challenge here is how you get into the U.S. to start the process. If you are in the U.S. on a work visa, such as a TN visa under NAFTA for example, then adjustment of status makes sense. If, however you enter as a visitor, say for example from a visa exempt country like Canada or from the EU, there is the chance your application to stay may be denied due to preconceived intent. That is to say, you told the customs official at the port of entry you were coming to visit, but you really intended to stay permanently.

Entering the US under the pretext of being a visitor, and then marrying a fiancée and applying for a green card, risks fraud.  The amount of time that passes between entry into the country and a marriage affects the onus placed on the couple to disprove fraud. An immigration officer may presume misrepresentation for inconsistent conduct within 90 days of entry and can even make such a determination at any time thereafter, if the facts of the case support such a determination. This can carry severe immigration consequences. Great caution is recommended in doing this.

The biggest advantage of adjustment of status is that, although the process can take over a year, you are already in the country with your spouse.  If problems arise in your case, you will be able to wait for a decision in the United States.  You may apply for employment authorization while filing your spousal sponsorship application as well.  Unfortunately, you won’t be able to leave the US during processing without getting special permission – unless it’s for an emergency. However, you can get permission to travel as part of the process, if you file papers in that regard. The same is true for work. These matters can be approved after a few months. Then you need only to wait for the approval of the spousal sponsorship itself – about a year.

Entering the country to marry your fiancée i.e. Fiancée Visa

American immigration allows you to enter the United States to marry your fiancée, provided you marry within 90 days of entry.  Following the marriage, you can then immediately apply for a green card.  Although Canadians typically don’t require a visa to visit their neighbor to the south, this is an exception to the rule. Other applicants need to apply through U.S. Consulates overseas to get the fiancée visa. It can take 8 to 12 months for processing. You can also work and live in the US after your wedding and after filing for your permanent residence inside the USA.

Are children included in the process?

A child will qualify under the petition if the parents wed before the child turns 21.

The rules governing spousal sponsorships are complex. While an astute student may be able to traverse the terrain, it is not easy. Couples spend a great deal of time planning their weddings. In the case of cross-border couples, it would be wise to add immigration to the list of items to be dealt with. Good planning can avoid unpleasant disappointments. This is a matter that should not be left to the last minute.