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Who Can Stay and Who Must Go: Keeping Families Together Under Current Immigration Law

by Emily Haverkamp

I. Introduction

In movies or on TV, it always looks so simple when a U.S. citizen marries someone from a different country. The new husband or wife immediately gets U.S. citizenship or a green card, right?

In real life, it is not quite so simple. The foreign national spouse can apply for a green card, but the process through which this occurs can differ greatly depending on the circumstances involved.

Whether the foreign national spouse can apply for a green card in the United States depends in large part on how that person entered. If there was legal entry, the foreign national spouse may adjust his or her status in the United States. If there was no legal entry into the United States, then a part of the processing must occur at the U.S. consulate abroad. However, there are exceptions to this rule under 245(i) of the Immigration and Nationality Act (INA) and through the Violence Against Women Act (VAWA).

II. Adjustment Process with Legal Entry

When the foreign national enters the country legally, meaning either on some type of visa or from a visa waiver country, the foreign national in many cases may apply for his or her green card in the United States. This is commonly referred to as "adjustment of status," as the person currently has some sort of immigration status to adjust from.

A. Nuts and Bolts of Applying for a Green Card Based on Marriage

The first step to applying for a green card based on marriage is to file an I-130 Petition for Alien Relative. This petition needs to show two main things: 1) that the petitioner spouse is a U.S. citizen and 2) that the marriage was entered into in good faith.

1. Proving U.S. Citizenship

The U.S. citizen spouse shows his or her citizenship through a copy of either a U.S. birth certificate or passport. This serves as proof of citizenship, and satisfies this part of the requirement.

2. Proving Good Faith Marriage

When the United States Citizenship and Immigration Services (USCIS) receives an I-130 petition, the burden of proof is on the petitioner to show that the marriage is not fraudulent. It is up to the petitioner to prove that the marriage was entered into in good faith, and not solely for the purpose of procuring a green card.

The petitioner must provide as much evidence as possible that the marriage was entered into in good faith. One of the most important things to show is that the couple lives together. A joint lease, mortgage, or utility bills can serve as evidence of joint residence. Other examples of evidence of good faith marriage include cards, letter, e-mails, joint auto insurance, joint health insurance, pictures of the couple and receipts from gifts or meals out. These and other similar evidence show that the couple have a real relationship.

B. Concurrent Applications

Along with the I-130, the couple has the option of concurrently filing other applications. These applications are:

1. I-485 Application to Adjust Status

The I-485 is the applicant for permanent residence, commonly known as a green card. Within this application, the applicant must show that he or she is eligible to adjust status. There are several factors involved.

The applicant must show legal entry into the United States. Usually this in the form of an I-94, which is the stamped document of legal entry that should be stapled within the foreign national's passport.

The applicant must be admissible. There is a series of questions within the form I-485 concerning different criteria for inadmissibility. Some examples of inadmissibility include fraud or misrepresentation, certain crimes or the potential of becoming a public charge. The applicant must also undergo a medical examination with a certified civil surgeon to be sure that the applicant does not suffer from certain medical conditions that would make him or her inadmissible.

2. I-864 Affidavit of Support

As mentioned above, one reason an applicant may be deemed inadmissible is if the applicant is likely to become a public charge. To show that the applicant will not become a public charge, the petitioner must submit an Affidavit of Support, which demonstrates that the petitioning U.S. citizen spouse has the resources to support his or her family. If the petitioner cannot show through salary or assets that he or she can support the petitioner's family, then a second sponsor may be brought in. It is important to note that the I-864 is a contract between the sponsor, the beneficiary and the government. Some courts have enforced the affidavit of support in divorce proceedings.

3. I-765 Application for Employment Authorization

The applicant may apply for an Employment Authorization Document (EAD) at the time of filing. This must be renewed annually, and can be renewed so long as the I-485 application is pending. Once an applicant becomes a permanent resident, he or she is authorized to work through the permanent residence card, which is also known as a green card. It is called a green card because it used to be green, but now they are pink.

4. I-131 Application for Advance Parole

Advance parole is permission to travel outside the United States and re-enter without abandoning the application for permanent residence. It is not advisable to apply for advance parole if the applicant has overstayed his or her visa, because the applicant could trigger the three or ten-year bars for unlawful presence upon re-entering the United States.

C. I-485 Interview

The couple will receive a notice to interview at the nearest USCIS office. The USCIS adjudicator asks a series of questions to gauge whether the marriage was entered in good faith or if the applicant is inadmissible. It is a good idea to bring more evidence of good faith marriage to cover the months between the filing of the I-130 and the interview date. Before filing an I-130, there should be a plan of action for responding to any issues concerning inadmissibility, such as a criminal record or unlawful presence.

D. If Approved, There May Still Be Conditions

If the application is approved, the foreign national spouse will receive a green card. If the couple has been married less than two years, then the green card is only valid for two years and is conditional. If the couple has been married longer than two years, there are no conditions and the green card itself is valid for ten years, and the permanent residence does not expire.

1. Removing Conditions

Conditional permanent residence means that the foreign national is a permanent resident based on the condition that the couple again makes a demonstration in two years that the marriage was entered into in good faith. This application is called an I-751 Application to Remove Conditions, and involves similar evidence to the I-130 to show good faith marriage.

These are generally jointly filed, but there is an exception to the joint filing requirement for marriages that are terminated but entered into in good faith, victims of domestic violence, and extreme hardship.

III. When There Is No (Legal) Entry

A. The Same Beginning: File an I-130

When there is no legal entry, meaning that the foreign national has either not entered the United States or has done so without inspection, then the foreign national cannot complete the green card process in the United States. However, the process begins the same as it does with legal entry, with the U.S. citizen spouse filing an I-130 Petition for Alien Relative, where the petitioner must show good faith marriage.

This is the only petition filed at this time.

B. National Visa Center

If the I-130 is approved by USCIS, it is forwarded to the National Visa Center. The National Visa Center will send fee bills, which is the bill in advance to pay for the applications at the consulate designated by the petitioner in the I-130 form.

Once the fee bills are received, the National Visa Center will send instructions for completing the documents needed for the consulate appointment.

1. DS-230 Application for Immigrant Visa

The DS 230 is an application to receive an immigrant visa. This is the Consulate's version of the I-485 Application for Permanent Residency, and has many of the same requirements. Like the I-485, the applicant is trying to demonstrate that he or she is admissible to the United States.

2. I-864 Affidavit of Support

Just like in the process above, the U.S. citizen spouse must be able to show that he or she can properly support their family in the United States.

C. Consular Appointment

The applicant will be scheduled for an interview at the U.S. Consulate in the foreign national's country of origin. The consular officer will be looking again at the issue of good faith marriage, as well as whether the applicant is inadmissible for any reason.

The applicant must undergo a medical exam before the interview. It is important that the applicant is aware that any admission made during the interview may be used against the applicant during the application process. For instance, an admission of past drug use can be a cause of inadmissibility. Like with the I-485 process, it is important that a plan of action for combating inadmissibility issues is in place before filing the I-130.

D. With No Prior Illegal Entry

When the applicant has never illegally entered the United States nor overstayed a visa, then if the application is approved the applicant will receive a nonimmigrant visa. This visa allows the applicant to enter the United States legally.

When the now immigrant enters the U.S. with the immigrant visa, this will signify the beginning of the immigrant's permanent residence. USCIS will be alerted to begin processing the green card.

E. With Prior Illegal Entry or Visa Overstay

1. Bars to Entry

When a foreign national enters the country illegally or stays past the expiration of the visa, the foreign national begins to accrue what is called "unlawful presence."

Once a foreign national has accumulated more than 180 days of unlawful presence, that person is barred from entering the United States for three years.

When a foreign national accumulates more than one year of unlawful presence, that person is barred from entering the United States for ten years.

If a foreign national is subject to the ten-year bar and re-enters the United States illegally before spending ten years abroad, then there is a permanent bar to re-entry.

2. Waivers of the Three and Ten Year Bars

a) Process

The three and ten year bars can be waived by showing extreme hardship to a United States citizen or legal permanent resident spouse or parent.

If the applicant is subject to the three or ten year bar, the applicant will be denied the immigrant visa during the appointment at the consulate. The applicant must then file an I-601 waiver with the country's USCIS office.

An I-601 waiver must show that there would be extreme hardship to the U.S. citizen spouse if the family were to be separated for three or ten years. There must be proof of hardship for both potential scenarios: there must be extreme hardship for the U.S. citizen spouse if the couple were separated AND that there would be extreme hardship on the U.S. citizen spouse if he or she were to move to the foreign national's country of origin.

Extreme hardship can be proven in various ways. Some examples include medical reasons, family members the U.S. citizen is a caretaker for, custody issues with children of the U.S. citizen, economic hardship, educational or career hardships.

The hardship must be detailed at length. It is also best to include expert opinions, such as a doctor, psychologist and CPA.

b) Wait times

The I-601 process can separate families for a long period of time. The foreign national must stay within his or her country of origin following the visa interview until the I-601 appointment with USCIS. While in some countries it may only take weeks, in other countries this wait time can be longer than a year.

c) I-601 Approval or Denial

If the I-601 is approved, the applicant can then receive their immigrant visa. If the I-601 is denied, the applicant must remain outside of the United States for the duration of the three or ten-year bar. There is also an appeals process.

3. Permission to Return After the Permanent Bar

A foreign national is subject to the permanent bar when he or she accrues an aggregate of one year of unlawful presence, leaves the United States and re-enters illegally. While it is termed "permanent,"the applicant may apply to the Department of Homeland Security for permission to re-enter the United States after having physically been outside the United States for ten years.

IV. Some Exceptions to Processing without Legal Entry

There are some exceptions to the rule that foreign nationals without legal entry must process at the U.S. Consulate. Two of the most common exceptions are:

A. VAWA Based Self-Petitions

When a foreign national spouse of a U.S. citizen or permanent resident is the victim of domestic violence, he or she may self-petition for permanent residency under VAWA. The three and ten year bars to admission do not apply to VAWA based self-petitions.

To be eligible for permanent residency under a VAWA based self-petition, the self-petitioner must demonstrate a) good faith marriage to U.S citizen or legal permanent resident, b) physical abuse or extreme mental cruelty, and c) good moral character.

B. 245(i) of the INA

245(i) of the INA allows for adjustment of status without having to leave the U.S. to process. To be able to adjust under 245(i), the person must a) have been physically present in the U.S. on December 21, 2000, b) be the beneficiary of an approvable immigration petition or labor certification filed before April 30, 2001, and c) pay a special fee of $1,000, in addition to other immigration filing fees. 245(i) only applies under these circumstances.

V. Conclusions

The family-based immigration process is complex, and shouldn't be entered into without consulting an immigration specialist. For instance, this outline of the process is only dealing with marriage between a U.S. citizen and a foreign national. A marriage between a U.S. legal permanent resident and foreign national has a different process involved. Because there are so many factors that affect a case, it can be difficult to navigate without experience in immigration law. There are many factors that can kill a petition, and they very likely won't be detectable just by looking at the forms.

About The Author

Emily Haverkamp is a member of the American Immigration Lawyers Association and practices immigration law with the Mdivani Law Firm in Overland Park, KS. She specializes in business and family immigration, and does pro bono work for immigrant survivors of domestic violence.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.