I Just Got Married. How Long Do I Need to Wait Before Starting a Marriage-Based Immigration Case?

Oftentimes, people assume that they must wait a set amount of time after getting married before starting a marriage-based immigration process. For most couples, this is not the case. If a person is eligible for a residency application through marriage to a U.S. citizen or lawful permanent resident spouse, the spouse with status (“the petitioner”) can start the process for the nonresident (“the beneficiary”) right away.

However, there are some notable pointers to keep in mind:

A petitioner has the burden to prove a bona-fide (“good faith”) marriage. In all cases, the petitioner must be able to show that their marriage was entered into lawfully in good faith, and not solely for immigration purposes. Helpful evidence might include:

• Documents showing that a couple owns property together
• Documents showing a couple lives together at the same address (bills, copies of I.D.s listing the same address, copy of a rent contract or mortgage statement, etc.)
• Birth certificates of children born to or adopted by the couple together
• Wedding photos and photos of the couples together at family celebrations
• Plane tickets from trips the couple has taken together
• If the couple has been living apart, evidence of messages, phone calls, letters, and other communications that they have shared to be in contact.

There is a heightened standard in certain cases. Some married couples might have to submit additional or stronger evidence to be able to petition for the noncitizen spouse. In these situations, it is even more crucial to consult with qualified legal counsel. Some examples:

• If the marriage took place while the beneficiary spouse was in removal, deportation, exclusion, or rescission proceedings, the couple will need stronger evidence to demonstrate that their marriage was entered into in good faith.
• If the petitioning spouse is a lawful permanent resident who obtained their residency through a prior marriage that ended in divorce, immigration might scrutinize both marriages depending on the timing of the second marriage and the filing of the petition.
• If the petitioner previously filed an immigration petition that was denied for suspected or alleged fraud, the petitioner will need evidence to overcome the previous fraud finding, or they might never be eligible to petition their spouse.
• If the petitioner has been convicted of certain crimes against minors, they may never be eligible to petition any family member.

Conditional permanent residency is more likely if a couple starts their immigration process immediately after getting married. Regardless of when the couple started the process, if the beneficiary has been married to the petitioner for less than two years on the date the beneficiary is granted residency, then they will become a “conditional” lawful permanent resident. A conditional resident has the same rights and responsibilities as any other lawful permanent resident, but their residency is initially approved for only two years. In the last 90 days before their two-year residency expires, they MUST submit an additional form along with corresponding fees and documents to re-prove that their marriage was entered into in good faith.

The takeaway? If you are a recently married or engaged couple, it is never too early to consult with an immigration attorney to evaluate your options. Our experienced family-based attorneys can discuss your options and help you and your spouse navigate the process. Please contact us at 312-427-6163 if you would like to set up a consultation.