Please Note: I am not an attorney. This is not legal advice. Do not take this post as legal advice, as each case is unique. This post is a story about my experience with my spouse during the process of getting my husband’s marriage-based greencard in the US.
Please note: The information below applies only to my own experience that took place before 9/11/2001, so many things may have changed. Any little detail can completely change a case, so check with an attorney or the USCIS to verify how your case should be handled. You will need to check the new processes, forms, and guidelines as they pertain to your and your spouse’s status and visa–each situation is different. There are several sticky situations in the immigration process, plus a few details that KEPT confusing me during the early stages of the process. Here are a few tips that may be helpful:
1) The spouse of a US citizen can apply for permanent residency in the US based on marriage to a US citizen. (The USCIS phrases this as applying for permanent residency through a “family member.”) When we were married, this was the rule: once the foreign spouse applies for residency, his/her status becomes “between statuses”–meaning not legal or illegal. In most situations, the alien spouse will be given permanent residency. If your spouse committed a crime in the US or entered the US illegally, there may be difficulties getting permanent residency–consult an immigration attorney. (If he/she entered legally but overstayed a visa, that is not generally a problem for changing status but can be an issue if he or she leaves the country before the status change is complete–but all situations differ slightly so ask a lawyer or USCIS if you are worried. Also see #3 about travel.)
2) In the permanent residency application process, some relatives such as brothers and sisters are placed on a waiting list and may wait a long time before their application is considered. This is not true for spouses. However, spouses will wait between the time they submit paperwork and the approval of the paperwork to get an interview–this is just processing time. (Relatives like brothers and sisters have the waiting list time + processing time).
3) After getting married and submitting paperwork, YOUR SPOUSE MUST BE VERY CAREFUL IF HE/SHE WANTS TO TRAVEL OUTSIDE OF THE UNITED STATES–until receiving the greencard. When we processed our documents, after submitting the I-485 and I-130 paperwork, my spouse had NO STATUS until the process was complete–at that time, he was granted permanent resident status. To go outside the US and re-enter, he needed Advanced Parole (a piece of paper that gives official permission to travel from USCIS). Read about it on the USCIS website, but note the section called Caution. For a person who overstayed his or her visa, and applied for permanent residency, many people say it is best not to travel even WITH Advanced Parole. People who overstay visas and leave the US without official permission (given through Advanced Parole) are barred from re-entering the country for 3 or more years. If your spouse overstayed a visa, has Advanced Parole, and must travel, talk to an immigration attorney and USCIS first to be sure it’s okay.
4) You will hear repeatedly that a fiance “can NOT come to the US on any visa except a fiance visa to get married.” A fiance cannot travel on a student visa, travel visa, and so on IN ORDER to get married. However, in our case, my husband came on a B1 or B2 visa and DECIDED to get married while here; this was different from coming IN ORDER to get married. (My husband didn’t come here to get married to me, as we didn’t know each other prior to his arrival here.) It is possible that this rule could change over the years, so double check with USCIS or immigration boards.
5) Important documents to SAVE:
- The I-94 Arrival/Departure record–a record that is received when a person enters the US. (My husband has needed this thing many times over the last 10 years.) This also has the Alien #–the foreign spouse will use it many times.
- The receipt INS gives you that they received your documentation–ours was yellow, I’m not sure how you can recognize it. But KEEP it. It will give you a sense of peace while you are waiting for the interview.
- Copies of everything you submit to the INS, plus copies of anything they give you just in case they are lost (receipt for I-485/I-130 paperwork, EAD card, passport stamp after your interview, and so on.
6) If you and your spouse are already in the US, the immigration process is sometimes faster and easier if you marry in the US, rather than going to a different country. But once you start the process here, as mentioned, leaving can be an issue until the process is complete, so check your options carefully. In the past, this was the only option if your spouse has overstayed a visa (see #3). Of course, if there are deportation proceedings against your fiance or spouse, consult an immigration attorney before taking any steps. Also, if your spouse entered the US illegally, you could have issues–so speak with an attorney before getting married. (Finally note that for some couples, getting married in the US doesn’t make sense–especially for couples who plan to travel or stay in a foreign country soon after marriage. Once you are married in the US, it can be tricky to travel until the greencard is in hand.)
7) Many people often give completely INCORRECT immigration advice–so don’t listen to just anyone. Look for information on legal websites the USCIS site, and verify any critical information about your case with an attorney. The worst advice we got was that my husband and I should leave the US and go to his country to get married–due to his visa situation, this was completely INCORRECT. My husband’s visa had expired. Had he left the US on an expired visa, it would have taken months or years to straighten out the problems it caused! Plus we would have been separated (me in the US, he in his country) while USCIS sorted it all out.