Can Someone on a Visitor Visa Obtain a Green Card Through Marriage? - Frear Law
Charlotte Immigration Lawyer--Visitor Visa to Green Card
If you are in the United States legally on a valid visitor visa, you may marry a US citizen and obtain a green card without having to leave the United States. The procedure for this is fairly straightforward but there are some things to keep in mind when considering this option. This post will first outline the basic requirements and process for obtaining a green card after arriving on a valid visitor visa, then discuss some potential problems with this option. Finally, some alternative options such as the K-1 fiancé visa will be discussed.

 

Marriage Based Green Card Requirements

The Green Card Applicant and the US Citizen are Free to Marry

The first and perhaps most obvious requirement for a marriage based green card is that the couple is free to marry. For example, if there are pending divorce proceeding that have not been finalized, then it will be very difficult to adjust status and obtain a green card based on marriage because the new marriage will be considered invalid. So, when considering a marriage based green card both parties should be absolutely positive that all previous marriages have been legally terminated.

 

The Parties Seeking the Green Card Must Have Married in Good Faith

In addition to being free to marry, the parties also must have entered a good faith marriage. With this requirement in mind, the couple should be prepared to show that their marriage is genuine through supporting documentation such as evidence of previous meetings, photos, correspondence, joint bank accounts, rental leases etc. in the event that the legitimacy of the marriage is questioned.

 

The Post Wedding Process for Obtaining a Green Card

Once a marriage occurs within the United States, the paperwork can be filed to adjust the foreign national fiancé’s status to that of a Lawful Permanent Resident Green Card Holder. The package used to achieve this status consists of the I-130 marriage petition, I-485 adjustment of status, I-765 work authorization, I-131 travel permit and I-864 affidavit of support. These are the main documents, but in addition, supporting documentation should be submitted such as birth certificates, medical exams and biographical information. All of these documents will be sent to USCIS for processing. While the petition is pending, it is important that the foreign national spouse refrain from leaving the United States until they receive a travel document, which is typically obtained within 3-6 months of submitting the application. After approximately one month after filing, a fingerprint appointment will be set up. After 3 to 6 months, the work authorization and travel permit will be issued. Interviews are usually scheduled within 4 months of filing. If all goes well, then an approved I-130 will be sent within 5-9 months from the time of filing. The adjustment of status I-485 is usually adjudicated within 10-19 months.

 

What Problems Could Occur During the Green Card Process?

A major problem could occur if USCIS accuses the green card applicant of lying on the application for the tourist visa. This accusation is likely to arise if the marriage takes place shortly after the foreign national’s entry into the United States. To prevent this scenario from arising, prospective green card applicants should be prepared to follow the 90 day rule.

 

The 90 Day Rule

Under the 90 day rule, there’s a presumption of fraud if a person violates his or her non immigrant status or engages in conduct inconsistent with that status within 90 days of entry. This new rule is a change from the previous 30/60 day rule, which allowed for the presumption only if the status violation or conduct occurred within 30 days of entry. Now, under the more strict 90 day rule a non immigrant who attempts to adjust status during their first 90 days on a visitor visa should expect increased scrutiny of the application.

After the initial 90 day period, there is no presumption of misrepresentation. Unfortunately, that doesn’t mean that the applicant is in the clear. If there is reasonable belief that the nonimmigrant misrepresented the purpose of his or her travel at the time of the visa application or application for admission, the adjustment application could be denied. For the allegation of fraud to arise, there must be a circumstance and/or evidence known to the inspecting officer that makes fraud more likely than not.

 

Alternative Options for Obtaining a Green Card Based on Marriage

 

If a prospective marriage based green card applicant does not want to risk being accused of fraud or misrepresentation, there are other options that are worth discussing with an immigration lawyer. These options include returning to the home country and applying for the K-1 Visa or an immigrant visa based on marriage.

 

The K-1 Visa

A K-1 visa allows a fiancé to enter the US on a non immigrant visa for the purpose of marrying a US citizen. Once the foreign national fiancé marries the US citizen, they can adjust status to obtain a green card.
In order to qualify for the K-1 Visa, both parties must be free to marry. In addition, the petitioner fiancé must be a US citizen who intends to marry the foreign national fiancé within 90 days of entry on the K-1 Visa. Also, the couple must have met in person within two years of filing.
In order to initiate the K-1 Visa process, the US citizen petitioner will file the form I-129F, Form 325A for both the petitioner and beneficiary, a passport style photo for each party, the filing fee, proof of the petitioner’s US citizenship, statements from the petitioner and beneficiary regarding the intention to marry within 90 days of entry, proof of the bona fides of the relationship and proof that the couple has met in person within the past two years.
After the I-129 is approved, then the second stage of the process begins. This stage involves obtaining the visa at the consular post. At this stage, the applicant will submit the DS-156, DS-156K, DS-230, police certificates, birth certificate, passport, medical report, evidence that the applicant will not become a public charge, divorce certificates from previous marriages, proof of the relationship and a copy of the K-1 Visa petition.
If the visa is issued, the applicant will be able to enter the United States during a six month period for the purpose of marriage. After the applicant’s arrival in the United States, he or she is required to marry within 90 days. After the marriage, the foreign national fiancé can then file for adjustment of status to become a lawful permanent resident green card holder.

Applying for a Marriage Based Immigrant Visa at a Foreign Consulate

If a person is applying for a marriage based immigrant visa outside of the United States, then the process would be slightly different. Instead of filing an I-130 along with an I-485 adjustment of status application with USCIS, the applicant would file the I-130 at the nearest consulate or USCIS overseas office. After the I-130 is approved, notice is sent to the petitioner and the approved petition is forwarded to the National Visa Center(NVC). The applicant is then informed of the necessary next steps and required fees. After all of the forms have been sent and fees have been paid, the NVC will schedule the visa interview and inform the applicant of the additional requirements. If the interview goes well, the immigrant visa will be issued and the applicant will be able to enter the United States on the immigrant visa which usually has a validity period of six months. To obtain permanent residence status, the immigrant visa holder must travel to the United States with the visa packet and be admitted while the visa is valid.

 

Conclusion

In many cases an individual in the United States on a valid visitor visa who marries a US citizen may adjust status to obtain a green card without being required to leave the United States. However, the prospective green card applicant should discuss the potential pitfalls of this course of action as well as the alternatives with a knowledgeable immigration lawyer. Without a thorough discussion with an immigration lawyer, the individual seeking a green card may encounter complications that could result in additional filing fees and time spent away from his or her spouse.

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