One of the most common ways people legally immigrate to the United States is through family connections. As with most subjects in immigration law, family-based immigration is complicated. Different rules apply depending on the type of family relationship involved and the age of the person who wishes to immigrate. Additionally, even if a person fits the correct category, visas may be subject to lengthy waits. Later articles in this series will address other types of family relationships and how they can lead to legal immigration and obtaining lawful permanent residence (LPR). This article, however, addresses one of the most common methods – marriage to a United States Citizen (USC).
Most people have some general idea that marriage to a USC can improve their immigration status and lead to LPR. In some cases this belief is true, but other times it is not. Spouses of USC’s are considered “immediate relatives”, and immigrant visas are immediately available without regard for visa caps and waiting periods. The USC must petition for his or her spouse, and both parties must be prepared to prove that the marriage is legitimate and NOT entered into merely for the purpose of obtaining immigration benefits. Both spouses will be interviewed by immigration officials to insure that the marriage is genuine.
If the non-USC in the marriage entered the United States legally and is still in the United States, he or she may be able to “adjust status” and receive LPR without having to return to his or her home country. Adjustment of status is not automatic, and the person must be prepared to prove that he or she meets the necessary legal requirements. However, if a person entered the United States illegally, he or she is generally NOT able to adjust status in the United States. Marriage to a USC will not fix this problem, except in very limited circumstances. The spouse usually has to return to his or her home country and apply for the immigrant visa. However, he or she would probably be subject to a ban on returning to the United States because of the previous illegal entry. The length of the ban would depend in part on how long the person was illegally in the United States. While waiver of the ban is possible, waivers are not automatic.
In short, marriage between a USC and a foreign citizen should be about love and commitment. It should never be for immigration benefits, and it cannot fix many immigration problems. However, persons who enter the United States legally and marry a USC in a legitimate marriage are usually in an excellent position to receive LPR.
Originally published January 2007