Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

11 Broadway, Suite 615
New York, NY 10004

(212) 430-6582 phone
(212) 430-6583 facsimile

Permanent Residence Based on Marriage to a U.S. Citizen

Q: Is this the easiest way to get permanent residence, as I've heard?

A: Only if the relationship, and subsequent marriage, is genuine. If the relationship is genuine, such cases can be relatively straightforward, inexpensive, and quick compared to other methods of obtaining permanent residence. However, we strongly advise against entering into a marriage solely to obtain immigration benefits - for both legal and ethical reasons.

The consequences of getting caught are severe - USCIS will likely pursue removal proceedings against the foreign national, and that person mayfind it virtually impossible to ever attain a legal status in the U.S. Moreover, U.S. Citizenship and Immigration Services is extremely skilled at detecting fake marriages, so the chances of success are actually very low - no matter what you may have heard. Further, being married to someone you don't actually wish to be married to is a recipe for disaster.

Q: What is the process for a filing based upon marriage to a U.S. citizen?

A: This depends on where the foreign national is when the decision is made to get married, and on whether the marriage is to occur here in the U.S. or overseas.

Q: What is the procedure when the marriage will take place in the U.S., and the foreign national has been present in the U.S. for a while already?

A:For situations where the marriage occurs here in the U.S., the process is relatively straightforward - assuming that the foreign national entered legally and has been in the U.S. for some time. The application, consisting of various completed forms and documents, is prepared and then filed to a central location in Chicago operated by U.S. Citizenship and Immigration Services, where data about the case is input into the USCIS computer system. The file is then sent on to a large Service Center in Missouri (the "National Benefits Center") for most of the initial processing.

Here, Receipt Notices are issued within a week or two after filing along with instructions for the foreign national spouse to appear and have fingerprints and a digital photo taken ("Biometrics"). Applications for Employment Authorization and Travel Authorization, if submitted, are adjudicated here as well. The file is then transferred to the local District Office with jurisdiction over the location where the couple lives for interview and adjudication. The length of time it takes before the interview depends on the size of the current backlog at this local District Office.

Q: What is the process where the foreign national spouse is abroad when the decision to get married is made, but the couple plans to marry in the U.S.?

A: If the non-US citizen individual is abroad when the decision to become engaged is made but the couple will get married in the U.S., there is a non-immigrant visa option available: the K-1 fiance visa.

A K-1 fiance visa can take six months to a year to obtain, allowing the foreign national to come to the U.S. with the intention of marrying the U.S. citizen fiance. This marriage must take place within three months of entry into the U.S. following which the foreign national spouse may apply for Adjustment of Status in the U.S. to obtain permanent residence.

Q: What is the process where the foreign national spouse is abroad when the decision to get married is made, and the couple wants to get married abroad?

A: The process is slightly more complex where the marriage occurs overseas. The U.S. citizen spouse will need to file an Immigrant Petition for Alien Relative (the first part of the two-part process described above) with USCIS. Once this is approved, the U.S. State Department will be notified and as separate process will begin for the spouse residing abroad to process through a U.S. embassy or consulate in their home country.

Once interviewed at the embassy or consulate, a foreign national spouse approved by the post for an immigrant visa is given a set of documents which can be used to enter the U.S. as a permanent resident. This process can be very time consuming, taking in most cases anywhere from ten to eighteen months. During this time, it will be extremely difficult for the foreign national spouse to enter the U.S. to visit - it isn't easy to convince interviewing officers of their intent to visit briefly when the computer shows a permanent residence application pending (See our B-1/B-2 Visitor Visa FAQs for more on the required non-immigrant intent).

Q: Is there any way to bring the foreign national spouse to the U.S. any earlier, while this process is going on?

A: There is also such a thing as a K-3 visa, which allows a foreign national spouse waiting outside the U.S. for approval of the I-130 petition to enter the U.S. while waiting. However, the need to demonstrate that the I-130 has already been filed, along with the relatively small difference in remaining processing time between the I-130 and the K-3 petition at that point and other inconveniences once the foreign national spouse reaches the U.S., often lead to a decision that any benefit of this visa simply isn't worth the added expense.

Contact us here to arrange a consultation, to inquire about retaining us to handle your immigration matter, or simply to suggest topics you would like to see covered on our site.

The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.