Permanent Residence Through Your Spouse

Non-citizen spouses are able to acquire permanent residence through their spouse under the following four conditions. First, your spouse must be a United States Citizen or permanent resident. Second, you must have entered the United States in legal status i.e. with a visa or under the visa waiver program. Three, you must be admissible to the United States. Finally, your spouse must be willing to submit his/her immigration petition to Immigration on your behalf. This article will highlight the process of preparing, submitting and ultimately attaining permanent residence though marriage.

The first thing to remember is that it is illegal to marry an individual for the sole purpose of obtaining immigration status. Marriages of this sort are called sham marriages and Immigration will prosecute these individuals in a very aggressive manner. Most of my clients are usually appalled that Immigration is not only interested in their paperwork but also in the inner intimate details of their marriages. Unfortunately, both spouses must remember that the petition to acquire permanent residence is based in large part on the validity of the marriage. In the past whenever a United States citizen or a permanent resident married a non-citizen, Immigration would send an officer to visit the couple at home to observe them and to assess the validity of the marriage. If the officer believed the couple was a genuine couple then the non-citizen would become a permanent resident. Those days are over. Now the officer will make an assessment of your marriage and immigration petition without visiting the couple at home. In addition, in today’s system the officer is not given the opportunity to get acquainted with the couple. The officer is forced to make his assessment of the marriage and petition solely on the documents in the couple’s petition and the short interview with the couple. In addition, government statistics show that thousands of sham marriages take place every year. Hence, the officer is operating under the assumption that every petition is a sham marriage unless the couple can provide documentation to show that their marriage is genuine. The important thing to remember is that the couple should not be offended by the officer’s questions or assumptions. The best course of actions is to provide as much documentation as possible and to remember that you must provide documentation to persuade immigration that your marriage is valid. Immigration is under no obligation to grant you any immigration benefits unless you can prove that you are eligible to receive such benefits. 

The first step in acquiring permanent residence is preparation. Before you apply for permanent residence you must prepare your documents and you must prepare yourselves mentally. In preparing your documents you must complete all the necessary forms in total. Do not leave sections unanswered because you do not know the appropriate response. If you have questions or concerns you should seek legal assistance from a licensed legal professional i.e. an attorney to assist you. Do not seek legal assistance from a paralegal, notary public, notario or your friends and family. They are not legal professionals and if they provide you with the wrong advice you will have no legal recourse against them. Please know that you could be charged with fraud if you include information that is false on your application. In some cases Immigration could decide that you have committed fraud simply based on the fact that you or your spouse signed a fraudulent application. A finding of fraud could lead to the non-citizen being permanently barred from applying for any future immigration benefits, imprisonment, fines and deportation. Finally, it is important to document your marriage for the immigration officer. You must create and present a scrapbook of your marriage to the immigration officer. Therefore you should include pictures of yourselves prior to and after your marriages, joint utility bills, joint back statements, apartment lease agreement or deed to property, evidence of any joint purchases such as a car, home, furniture, household appliances, joint insurance policies, birth certificates of your children, love cards, joint tax returns etc.

The second step is to prepare yourselves mentally for the immigration process and your interview. A lot of couples get married and they do not discuss the immigration status of the non-citizen until after the marriage. This is a huge mistake. The non-citizen’s immigration status is extremely important as it could affect the ability of the couple to live together. I am not saying that a United States citizen or a permanent residence should not marry a non-citizen. I am simply stating that it is important to discuss the immigration matters prior to marriage so that both spouses understand the process so that they can plan accordingly. I have met many couples only addressed the issue of immigration status after their marriage and then they discover that the U.S citizen spouse is not willing to petition for the non-citizen spouse or that the non-citizen must return to his or her country. Both scenarios are unpleasant and usually create marital problems in the marriage. The best course of action is to avoid these unpleasant surprises by addressing these issues prior to marriage. The next component of preparing yourselves entails mental preparation. Couples should intimately acquaint themselves with the legal process so that they can plan accordingly to achieve a positive result. Mental preparation means seeking legal advice to learn about the process. The couple must also be proactive in preparing and maintaining documents to present to Immigration. Finally the couple should pay close attention and comply with all instructions from Immigration regarding fingerprint interviews, requested documents and interview times and dates.

The final step is the interview with an immigration officer. It is important to be on time. If the officer calls your name and you are not present your application could be considered abandoned and it will be terminated. Termination of your interview means that you will lose all the filing fees, you will have to start the process all over again and the non-citizen could be placed in removal proceedings. It is also important to have all original documents present for inspection. It is most important to remain professional and polite. It is never appropriate for you to be rude to an officer. If you are rude the officer could interpret this behavior as un-cooperative and he/she could deny your petition. Remember to remain calm, answer all the officer’s questions and present your documentation. If all your documents are in order and the non-citizen is eligible to apply for permanent residence in the United States then the application will be approved. In order to determine eligibility for adjustment of status it is best to consult an attorney.

About the Writer:
Safiya Byars is a senior immigration attorney in Norcross, Georgia. She is a native of Jamaica and has personal experience with the difficulties of maneuvering the Immigration system. Safiya Byars has served as the senior immigration attorney with boutique immigration firms in both Alabama and Georgia. To discuss your case, please contact Attorney Byars at 404-992-6506 or via email.