In 1986, Congress revised the rules for immigration through marriages because of the problems with fraudulent marriages. This rule places a two-year “conditional status” on those who marry a U.S. citizen or permanent resident. However, this status only applies to individuals whose marriages were created less than two years prior to his/her grant of permanent residence.
At the expiration of the two-year period, both spouses may file a petition to remove the condition. Failure to file for removal of condition will result in termination of permanent resident status for the alien spouse. It is the spouses who have the burden of proof to show the U.S. Citizenship and Immigration Services (USCIS) that the marriage was entered in good faith (i.e. not for immigration purposes). If the USCIS determines that the marriage is fraudulent, the alien spouse will be placed in deportation proceeding. Marriages for the purpose of evading immigration law are criminal. Conviction of marriage fraud may result for both spouses in fines up to $250,000 or imprisonment up to five years. In addition, the alien spouse may be forever excluded from the U.S.
In cases where the marriage was entered into in good faith, but the spouses separated within the two-year period, the USCIS may still allow the parties to file for removal of conditional status. If, however, the parties are divorced, the USCIS may exercise its discretion in granting the alien spouse a waiver to file for removal alone.
Grounds for waiver are as follows:
- Deportation would cause extreme hardship to the alien spouse;
- The marriage was created in good faith;
- The alien spouse was a victim of domestic abuse.
American citizen: Foreign national marriages
VISA PROCEDURES (Updated 05/2008)
The Immigration and Nationality Act, as amended, provides U.S. citizens with two options for facilitating the immigration of future spouses to the United States: the K-1 fianc?© visa and the alien-spouse immigrant visa. In many cases, the processing time for a fianc?© visa is shorter than that for an alien spouse. Fianc?© visa processing can take several months from the filing of the petition to the final adjudication of the visa. Total processing time for the alien-spouse visa can take 6-12 months depending on individual circumstances. If your alien fianc?© is already in the United States and plans to adjust status in the U.S., contact the U.S. Citizenship and Immigration Services (USCIS).
Marriage in the United States: Fianc?© Visa
U.S. citizens may file an I-129F petition with USCIS for the issuance of a K-1 fianc?© visa to an alien fianc?©. A citizen exercising this option must remain unmarried until the arrival of the fianc?© in the U.S., and the wedding must take place within three months of the fianc?©’s arrival if he/she is to remain in status. Also, the alien and U.S. citizen must have met personally at least once in the two years before the petition was filed.
Marriage abroad: Alien-Spouse Visa
If a U.S. citizen marries an alien abroad, an I-130 petition must be filed after the marriage to begin the immigration process for the alien spouse. This can be filed either with the USCIS in the United States, or, under certain circumstances, at U.S. Embassies or Consulates abroad. U.S. Embassies and Consulates have differing policies on approving I-130s and should be individually contacted about the availability of this service. Many posts have their own web pages which include this information and which can be accessed through the U.S. Embassy and Consulate links page. Prior to departure from this country, the U.S. citizen should contact the USCIS or appropriate foreign service post to ascertain exactly what documents will be necessary to file the immigrant petition for a new spouse.
For more information see: