June 5, 2013
There are distinct differences in the immigration laws when an individual is seeking a visa based on marriage. Individuals are rather familiar with the laws and procedures when marrying a United States citizen; however, there are widespread misconceptions when marrying a lawful permanent resident. The following are common issues that individuals should be aware of when they are considering marrying a green card holder.
When should we get married? There are many couples that unfortunately mistakenly believe that they need to wait to get married until after the green card holder spouse becomes a US citizen. This is absolutely not true. In fact, when a couple reaches that stage in their relationship that they know they want to share their life together, getting married sooner than later is helpful to the spouse requiring a visa. Getting married sooner than later allows the couple to more fully establish that their relationship is a legitimate and bona fide relationship, rather than one entered into for the purpose of obtaining a visa. Moreover, if the couple has already been married more than two years when the green card is issued, the individual is able to skip the conditional green card and obtain the unrestricted green card. As well, the longer a couple has been married strengthens a claim of hardship should some type of waiver be required. An individual’s lack of immigration status does not prevent an individual from getting married, so couples wishing to get married should do so when they find it best for their relationship regardless of their immigration situation.
Will my permanent resident spouse have any problems when applying for naturalization? The fact that an applicant for naturalization is married to an out of status individual will not, in and of itself, cause problems for the permanent resident spouse. The DHS does not consider that to be a negative factor to the naturalization applicant. As well, the DHS does not use the information that will be furnished in the naturalization application about the out of status spouse to take any negative actions against the out of status spouse. In fact, the DHS is more than aware that many individuals are applying for naturalization specifically so that they can petition their out of status spouse.
When should we proceed with my visa petition? The answer to this question is more complex as there are many factors that must be considered when determining whether to proceed with a visa petition as a green card holder or to wait until the permanent resident spouse naturalizes. In some situations, such as those who are grandfathered under former INA §245(i), it may be wise to proceed with the visa petition right away. For those with a prior deportation or removal order, it may or may not be wiser to wait until an individual becomes a US citizen. The length of time that an individual has in order to qualify for US citizenship is another factor that must considered. As well, the proposed legislation for comprehensive immigration reform must also be considered in light of each individual’s particular circumstances. In sum, individuals should consult with an attorney to determine the best course of action, as each case is uniquely different.
Will I be able to get a work permit and/or advance parole travel document? Unfortunately, not right away. An individual may obtain a work permit and/or advance parole travel document only when they are eligible to submit the adjustment of status application. The timing on when an adjustment of status application, as well as work permit and/or advance parole, can be filed is again on a case-by-case basis that necessitates careful individualized analysis. The answer could be in a few months to not at all unless there is a change in the law.
Getting married and the joys that it brings are moments that every couple should treasure. For that purpose, couples need to ensure that they wisely handle the serious immigration issues so that they can venture forward in attaining their vision of their future together.