May 01, 2013
Minsky, McCormick & Hallagan
Individuals may qualify for U.S. permanent resident status (a green card) based on their marriage to a U.S. citizen or a U.S. lawful permanent resident. This article addresses some general considerations for the foreign national bride or groom or for any foreign national guests attending the wedding or reception. Because of the varied eligibility requirements, this article is not a substitute for obtaining competent legal advice related to your specific situation.
Tips for foreign national brides or grooms:
If you currently live in the U.S. and are marrying in the U.S.:
- You may qualify to file an application for a green card, which is known as an Application to Adjust Status, with U.S. Citizenship and Immigration Services (USCIS).
- To ensure you do not abandon your application, do not leave the country on your honeymoon or for a reception without first obtaining permission to travel from USCIS (known as an “advance parole travel document”). The application for advance parole is normally filed together with the application for Adjustment of Status and is usually within 90 days.
- Certain individuals who have prior immigration violations or criminal issues, however, should not depart the US even if they receive their advance parole document because they may be denied entry to return to the US and/or may be barred from returning to the US for many years.
If you live abroad and are marrying abroad:
- It is possible to get married abroad to a U.S. citizen or lawful permanent resident of the U.S. and file for a green card through the local U.S. consulate. This process is known as consular or immigrant visa processing.
- You cannot travel to the U.S. without lawful authorization; make your plans with sufficient time for your or your spouse’s visa to be decided and approved before any important dates in the U.S., such as a reception or honeymoon. The consular processing of green cards may take several months or even longer for the spouses of permanent residents.
If you live abroad and are marrying in the U.S.:
- If you are currently living abroad, but would like to marry in the U.S., a K visa may be an option. K visas are for fiancé(e)s of U.S. citizens who seek to enter the US solely to enter into a valid marriage with their U.S. citizen fiancé(e) within 90 days of their admission to the US. After entering the U.S. and marrying on the K visa, you may then file an application for Adjustment of Status for a green card.
- Keep in mind that the K fiancé(e) visa normally takes just as long as an application for an immigrant visa abroad through the local US consulate. Therefore, you may want to consider getting legally married abroad and filing for a green card abroad prior to the wedding in the U.S., rather than waiting for the fiancé(e) visa.
Document, document, document:
- To prevent marriage fraud, the U.S. government requires evidence that each marriage, which is the basis for a green card, is a real or bona fide marriage.
- Therefore, as you plan and then celebrate your wedding, make sure to save and record information and memories from your wedding, including receipts, photographs, invitations and cards, etc., as you may wish to eventually present this as evidence of the marriage. Your guests can do the same.
Tips for your guests living abroad:
- If you are planning your ceremony or reception in the U.S., remember that anyone living abroad who is not U.S. citizen will need a way to lawfully enter the US.
- If your guests already have a green card and are living abroad, they may be able to enter the U.S. in that status under most circumstances.
- Guests from Visa Waiver Program (VWP) countries can enter the US without a visa (click here for more information of VWP and to see a list of eligible countries). Please remind these guests that they must have authorization through the Electronic System for Travel Authorization (ESTA) prior to boarding a US bound plane or boat, which requires payment of a fee and waiting several days for confirmation. Therefore, they should complete the ESTA registration well in advance of travel to the US. For more information on ESTA, click here.
- Other guests will likely need to apply for a tourist visa (B2 visa) from a U.S. consulate abroad. In deciding whether to grant your guests a tourist visa, the consulate will consider various factors, including their past travel history and their ties to the U.S and to their home country. If the tourist visa is granted, your guests can travel to the U.S. and present themselves to U.S. Customs and Border Patrol to gain admission for up to 6 months. Please remind your guests that it may take weeks or even months to get a visa interview at a US consulate, and anywhere from a few days to several months to get the visa issued after the interview, so they should apply early. And, remember, it is possible that your guest may not be granted a tourist visa or may be denied admission to the US upon arriving in the US.
- Although the U.S .Supreme Court is currently considering the constitutionality of the Defense Against Marriage Act (DOMA) and heard oral arguments in the case on March 27, 2013, current law does not allow same-sex couples to obtain a green card based on a marriage to a U.S. citizen or lawful permanent resident. The Supreme Court will issue a decision in this case by June 2013.
- If you would like to discuss your options regarding your spouse, or if the Supreme Court’s decision changes DOMA’s restriction, contact Minsky, McCormick & Hallagan, P.C. for a consultation.
Chicago Immigration Lawyers, Minsky, McCormick & Hallagan, P.C. assists clients obtain legal permanent resident status, or “green card,” through marriage. If you are interested in a consultation regarding your eligibility for residency through marriage, contact Minsky, McCormick & Hallagan, P.C. for a consultation.