US citizenship

January 8, 2007 1:16 PM

Query regarding US immigration for spouse

A friend has married an America woman and is in the process of applying for citizenship and work permit - a labyrinth...

One confusion he can't get traction on - surely if he gains citizenship as a spouse, he does not need to apply for a Green Card? Or doesn't this get subsumed?

posted by A189Nut to law & government (23 comments total)

First he gets the Permanent Resident card. When he's had that long enough, he can get citizenship.

He needs a lawyer, stat.
posted by Faint of Butt at 1:19 PM on January 8, 2007

You still need to apply for the green card (permanent residency card). It is not automatic.
posted by wile e at 1:26 PM on January 8, 2007

Direct him to www.visajourney.com. They are extremely helpful. Someone sent me there when I posted my immigration AskMe. :)

The friend is in the United States now? What type of visa is he on? If he's on a J visa, he may be required to spend two years in his home country before returning or file for a waiver of this requirement.

Otherwise, to get permanent residency, he'll need to apply for Adjustment of Status due to marriage to a citizen. Have a look at the visajourney guide. This link, if it works, is the USCIS page on Adjustment of Status procedures. If Adjustment of Status is approved, he will get his green card and be eligible to work. If he wants to work while his AOS is still bring processed, he needs to also apply for temporary employment authorization, form I-765, also on that USCIS page. For his Adjustment of Status, his wife will have to prove that she is financially able to support him. She needs to have annual income that meets or exceeds 125% of the poverty level for her household size (two if it's just her and him).

If they're been married less than two years when he is granted residency, he'll be given conditional permanent residency and will have to file two years after that to have conditions removed. He is eligible for naturalization three years after he is granted (conditional, if applicable) permanent residency.
posted by thirteenkiller at 1:43 PM on January 8, 2007

Also, if he is in the US through the visa waiver program, I think he has to get a proper visa. I don't think he can adjust status directly.
posted by thirteenkiller at 1:45 PM on January 8, 2007

[sorry for the long post, but I've been dealing with this subject for a LONG time now]

One avenue is the K-3 Visa which is specifically designed to get your foreign spouse into the USA. Check out Visa Journey's website which has a TON of information and anecdotal advice, as well as timelines etc. I just went through this mess with the Fiancee version (the K-1) (remember to check the cryptic Official USCIS immigration site for current info)

Everything is really dependant upon where he is at the moment, and what he's done so far. That is, assuming he hasn't already broken any immigration laws and he married the American woman outside of the USA, and is currently waiting in his home country, then his wife can petition for him to get the K-3 Visa. Once it's approved (which can take months), he should receive a conditional permanent residancy for a certain length of time (note, this is NOT citizenship NOR a green card, but he CAN work in the US for this time period). (for the K-1, this is a 2 year conditional period, and I think it's the same for the K-3)

After the conditional period, he will petition for an adjustment of status, which gives him the green card. As far as I know, the citizenship aspect has to be done seperately AFTER this initial mess is taken care of, and I don't believe this is a requirement... (someone please correct me on this, or back me up)

If he already got married in the USA or is currently living in the US under the impression he's automatically a US citizen, then as Faint of Butt said (and others will likely add) GET HIM TO A LAWYER!! He's probably broken some immigration laws and will need someone to figure out the best way to proceed.

As for actually filling out the K-3 (or K-1 for others out there in similar positions) you don't really need a lawyer if your case is pretty straightforward. My Fiancee is canadian and our histories are clean. No prior marriages or kids and no trouble with the law. Thus it's just filling out a few forms, dotting your i's and crossing your t's and waiting.

oh, and just to be clear, I'm NOT a lawyer and our K-1 hasn't been approved, but I've been researching this for over a year now, and finally feel like I've got a handle on the situation.

Can you elaborate any details? and to anyone else with more info, please feel free to correct my post.
posted by johnstein at 1:55 PM on January 8, 2007

Or listen to thirteenkiller since it sounds like his advice might be more relevant. (since my experience is primarily with the Fiancee end of it)
posted by johnstein at 1:58 PM on January 8, 2007

I went through this with my husband twice - first as a K1 fiancee, then with consular processing (bypassing the K3).*

The best resource for me was the U.S. Based Marriage Visas Forum at BritishExpats.com (domain name is misleading, folks from every country imaginable post on their situation)

*Had to do it twice since he returned to his home country after the K1 (family/business concerns), so we had to start all over.
posted by Liosliath at 2:02 PM on January 8, 2007

One thing: Conditional permanent residency IS a green card. It just gets reviewed after two years to make sure the family situation claimed by the immigrant hasn't proven fraudulent.

johnstein: I'm getting a K1 for my fiance too (I'm the girl!). We're just waiting for his interview date. :D
posted by thirteenkiller at 2:04 PM on January 8, 2007

Also, about your citizenship question - after the 2 year conditional resident green card granted to spouses of U.S. citizens, people have been known to have their I-751 (green card renewal, 10 year term) and I-400 (naturalization) processing concurrently, since the I-751 sometimes takes a while.
posted by Liosliath at 2:09 PM on January 8, 2007

I assume you and your friend are in Britain, and that the friend is already legally hitched?

He's not applying for citizenship. He can't apply for citizenship until he's been a permanent resident for 2 years 9 months.

There are two ways he and his hunny bunny can go about this, assuming again that they're in Britain.

(1) I-130 and DCF. That is, apply directly to the US embassy or a consulate in the UK for a green card. To do this, his wife might have to have leave to remain in the UK.

(2) I-130, K3, and AOS. There are several steps here, and this description includes some simplifications.
(2a) File the I-130 (IIRC, with a national center in the US).
(2b) When a Notice Of Action arrives, file an I-129F (fiancee visa form) for him. This form is also used an a quicker way to import a spouse under a K-3 visa.
(2c) Move to US
(2d) File I-485 to adjust status to permanent resident, I-765 to work in the meantime, and I-130 to be able to leave the US without losing status.

Normally, I'd say that so long as the Foreign Person does not have any criminal convictions or weird health problems that might pose a problem, a couple should not need a lawyer. The process, while complicated and time consuming, is actually relatively easy to get through in a step-by-step process. Also, there are many wonderful resources available online, especially the newsgroup alt.visa.us.marriage-based .

On the other hand, your friend seems pretty confused. If he and his hunnybunny are already confused, they might want to think about hiring someone to be careful for them. The important thing is that they should not under any circumstances hire just some random general-purpose lawyer, and should only consider an AILA immigration lawyer.

On the gripping hand, most all of the forms so far would have been filed by his bride, not by him, so it's possible that she's not nearly as confused as he is. In which case they should be able to muddle along without a lawyer.
posted by ROU_Xenophobe at 2:22 PM on January 8, 2007

Looking back, if he's already done something sketchy like just move to the US under the VWP, he should talk to an immigration lawyer ASAP.

The immigration paths for foreign spouses and fiancees aren't difficult, really, but it's possible to get in real trouble if you fuck up in the right ways.
posted by ROU_Xenophobe at 2:25 PM on January 8, 2007

My God it is complicated. I will forward the thread to him!
posted by A189Nut at 2:50 PM on January 8, 2007

It's insanely complicated, that's for sure.

If they've been married for over two years, his resident status won't be conditional and the Green Card will be good for ten years. If they're recently married, the Green Card is conditional for the first two years - which means that if they divorce, he has to leave the country immediately. After two years, the conditions can be removed by the non-immigrant spouse and the Green Card is good for staying in the country no matter what, even if they do divorce.

I think that's the only thing that hasn't been covered already.

My husband is Icelandic and I'm American, so we had to go through all of this when we moved back here from Iceland. If you go through the process abroad through the Embassy, it's pretty straightforward and depending on the country, also very quick. (It only took us six weeks!) However, if you wait until you're in the US, the process takes a much longer time and there's a lot of added hassle (such as not being able to LEAVE the country until you have your Green Card, which can take up to two years). My advice to your friend would be to take care of ALL of it through the nearest American Embassy before entering the US.

Done this way, you shouldn't need an immigration lawyer unless there's something odd about the situation. It is very expensive even without adding a lawyer - I think that it cost us around $600.

Also: the part of the process that they're the most critical of is the Affadavit of Support, which is completed by the American spouse. You MUST have three years of back tax info and show that you can support your spouse 150% above the poverty line. Since I had been in college for the three years prior to getting married, my parents are the official sponsors of my husband's visa, which required a LOT of paperwork (my taxes, my parents taxes, notarized forms saying that yes, they really are MY parents, etc). This is definitely something to get in order as soon as possible.
posted by grapefruitmoon at 4:59 PM on January 8, 2007

I just want to correct one thing. Namely that if this is being done in the US you can leave the country before getting your Green Card by applying for an I-131, which is known as Advanced Parole. This is meant to take up to 90 days. I know this because I'm waiting for mine.
posted by ob at 5:09 PM on January 8, 2007

if they divorce, he has to leave the country immediately

This is incorrect. He will retain conditional permanent residency until it expires at two years. It's also possible to get a 10-year green card after divorce -- you just have to show that you entered into the marriage in good faith and not as an immigration scam.

If you go through the process abroad through the Embassy, it's pretty straightforward and depending on the country, also very quick.

This depends on the embassy and/or consulates in the foreign person's country, and on the residency of the US citizen. The US embassies and consulates in many countries do not allow direct consular filing, which is the quick way. If you try to do this in, say, Canada, you'll probably have a multi-year wait on your hands.

However, if you wait until you're in the US

You need to have *something* before you come to the US to live. If you just show up at a US airport expecting to move in with your American hubby or wife, you will be sorely disappointed. You can fake it by lying to the immigration people so they think you're just visiting someone, but that is very fucking far from a smart thing to do.

The main option in this case is the I-130 and K3 combination. But you can't just show up and work it out afterwards; even this approach takes a while.

such as not being able to LEAVE the country until you have your Green Card, which can take up to two years

This is incorrect. You can leave by filing an I-131 for what's called "advance parole." Then you can come and go.
posted by ROU_Xenophobe at 5:15 PM on January 8, 2007

We managed to do the process without a lawyer, but could not have done it without one of the NoLo books: Fiance & Marriage Visas (Bray). It walks you through the process and explains even the simple things to you. Also, our situation was fairly straightfoward. If there are any complications, it's worth consulting a lawyer (but the book advises that, too).
posted by AwkwardPause at 5:53 PM on January 8, 2007

The details are pretty much all here. The precis: if he's already in the US , he should see a lawyer right now, and probably start looking for flights back. If not, he shouldn't think about travelling to the US until he has a visa in his passport.

One last thing: it takes a long time to process all of these forms. 'Long' as in 'longer than you expected "long" to be' plus 'some more'.
posted by holgate at 6:52 PM on January 8, 2007

ROU Xenophobe: if they divorce, he has to leave the country immediately

This is incorrect. He will retain conditional permanent residency until it expires at two years. It's also possible to get a 10-year green card after divorce -- you just have to show that you entered into the marriage in good faith and not as an immigration scam.

Really? I was told otherwise during our immigration interview.
posted by grapefruitmoon at 7:04 PM on January 8, 2007

I could remember incorrectly, but ISTR several of the immigration lawyers on a.v.us.m-b telling people who'd been divorced that the world hadn't ended and that they just needed to file the I-751 as normal, with lots of evidence and hopefully their ex's cooperation, and hope for the best.

On the other hand, INS/USCIS people say lots of wrong, profoundly incorrect things about their own procedures on a regular basis. This is one of the reasons why their help line is worse than useless. Then there was the time crossing back into the US at Sarnia/Port Huron where the customs/immigration officer asked us several questions about my bride's I-551 stamp, and when she could apply for citizenship, and other things that made it plain that he did not know his ass from a hole in the ground. Whee!
posted by ROU_Xenophobe at 9:56 PM on January 8, 2007

GrapeFruitMoon, the amount of misinformation the USCIS doles out is staggering. If you get divorced during the conditional green card period, all is not lost. You have to prove that the marriage was entered "in good faith," which could mean kids, joint property ownership, that sort of thing.
posted by Liosliath at 11:04 PM on January 8, 2007

Liosliath: I'm sure my husband will be glad to hear it, though his conditional period ends in June and I certainly have no intention of divorce before then. (Or after.) ;)
posted by grapefruitmoon at 11:11 PM on January 8, 2007

Glad to hear it - I'm just getting ready to send my husband's I-751 out tomorrow, actually!
posted by Liosliath at 11:13 PM on January 8, 2007

On review, I wasn't mocking you by using "glad to hear it" again - I should really go to bed.
posted by Liosliath at 11:15 PM on January 8, 2007