Immigration Attorneys Advice Column

EACH YEAR, more than 160,000 citizens of the United States marry foreign-born persons and petition for them to obtain permanent residence in the United States. Many of my clients usually ask for the basic requirements. Here's my stock reply:

Spouses of U.S. citizens are considered "immediate relatives" under the immigration laws, and are exempt from all numerical quota limitations. In other words, marriage to a U.S. citizen is the fast lane to a green card.

Marriage to a permanent resident is very problematical and often results in the recently married spouses living apart for many years. A legislative solution to this problem is required.

It is also possible for a U.S. citizen to obtain a temporary visa for a fianceé and get married once he or she arrives in the U.S.

IF THE MARRIAGE OCCURS IN THE U.S.

Procedurally, the process works like this: The U.S. citizen must submit a visa petition (form 1-130) to appropriate USCIS Service Center to prove that the marriage is bona fide, that is, entered into for love rather than simply for the foreign-born spouse to obtain a green card. Attached to the visa petition are the following items:

Biographical forms (forms G-325A) for both the husband and the wife with photos attached;
Proof of the citizenship status of the petitioner. This can take the form of a U.S. Passport, a Certificate of Naturalization or Citizenship or a certified copy of the citizen's birth certificate;
A certified copy of the marriage certificate;
Certified copies of the documents that terminated any previous marriages of the husband or wife, including final divorce decrees, and certificates of annulment or death.

Simultaneously, the foreign-born spouse should submit an application for adjustment of status (form I-485) which is an application for a green card. Items which may accompany the green card application include green card photographs, an application for employment authorization, an application for a travel permit (known in immigration jargon as "advanced parole") and numerous other USCIS forms.

And don't forget the filing fees. Include a single check which includes the filing fee for the visa petition, the application for adjustment of status, the application for work authorization, the application for a travel permit and fee for fingerprints.

The USCIS will accept the applications, cash your check, and schedule an interview somewhere between a few months (if you live in Cleveland ) and 19 months (if you live in Los Angeles ). If the wait for the interview exceeds 90 days, chances are that the work card and the travel permit will be issued in a matter of weeks or months.

IF THE MARRIAGE OCCURS OUTSIDE THE U.S.

The process is roughly the same except that the foreign-born spouse usually must remain in his or her country until he or she obtains a green card. The U.S. State Department offers advice on its web page to citizens who marry foreign-born persons abroad. The process begins when the citizen spouse submits a visa petition to either the USCIS office which has jurisdiction over his residence or directly to the U.S. Embassy or Consulate in the country where the foreign-born spouse resides. The citizen spouse must attach the same items with the visa petition which are listed above including the filing fee.

Once the visa petition is approved, the foreign-born spouse will receive a packet from the National Visa Center (NVC) located in Portsmouth, New Hampshire. The packet informs the foreign-born spouse of the various documents which must be presented at the immigrant visa interview abroad (e.g., passport, police clearances, results of medical examinations, etc.). The packet includes certain documents requesting biographic data which must be completed, signed and forwarded to the U.S. Embassy or Consulate abroad.

Usually, the foreign-born spouse is interviewed and granted an immigrant visa within three to six months. The State Department charges a fee for an immigrant visa.

Sometimes, in order to avoid a lengthy separation, the spouses return to the U.S. after the marriage and proceed to file the necessary applications once they are both in the U.S. Usually, USCIS takes a dim view of this practice. It is not uncommon for the USCIS to stop the foreign-born spouse at the border and exclude him or her from the U.S. as an intending immigrant. However, if the foreign-born spouse is able to enter the U.S., USCIS will not deny his or her application for a green card simply because he or she entered the U.S. on a temporary visa when their real intent was to remain permanently in the U.S.

CONDITIONAL RESIDENCE

If the marriage is less than two years old when the foreign-born spouse becomes a permanent resident, the green card will expire after a two-year period. Both spouses must submit a joint petition (form 1-751) to remove the two-year condition within the 90-day period immediately preceding the end of the two-year period.

If the marriage has terminated by reason of divorce, death of the citizen spouse or spousal abuse, the foreign-born spouse may apply for a waiver of the joint petition requirement.

Readers may contact columnist Carl Shusterman through mail; 600 Wilshire Blvd., Suite 1550, Los Angeles, CA 90017; or through tel.: (213) 623-4592 <