US Immigration Lawyer Consultation

The Department of Homeland Security approves and issues all green cards.  

The Department of State through its consular posts outside the US issues all marriage visas.  It is possible to process the marriage visa and also pre-process the green card so that the green card issues shortly upon the foreign applicant’s arrival in the US.

The Petitioner

US citizens and lawful permanent resident “green card holders” may marry foreigners and help the foreign spouse obtain a green card.  Child dependents of the marriage can obtain green cards as well.  

The spouse of a US citizen processes as an “immediate relative”.  By comparison, the spouse of an LPR green card holder is not an “immediate relative of a US citizen”, and so must be processed through a Priority Date system.  

The Priority Date system slows down what is typically referred to as chain migration, where one foreigner applies for others who apply for others and so on.  A green card holder who is a petitioner is not yet a US citizen and remains a foreigner.

Of course, petitioners will have requirements they must meet in order to help a foreign spouse complete immigration processing.

The Foreign Spouse Applicant

A best case scenario is where the foreign spouse has:

• No immigration violations;
• No misrepresentations before an immigration officer on paper or in an interview; and
• No criminal arrests or convictions.

An immigration violation can be an overstay in the U.S., among many other problems.

Foreigners who are out of status in the US normally cannot adjust status when married to an LPR green card holder.  Only immediate relatives who have fallen out of status can be put back into the US through the adjustment of status process.

Entry to the US

How the foreigner entered the US matters. 

Misrepresentation

What was reported to a CBP border agent at the point of inspection makes a difference.  For example, it often happens that a foreigner will enter the U.S. as a “visitor” and promptly marry a US citizen, then try to adjust status in the US to obtain a green card.  At the green card interview, the USCIS officer reviews the entry records and calls up documentation.  Internal records are checked as is social media.  Very often, an immigration officer calls up relatives and asks about the foreigner’s plans in coming to the US.  The officer detects an ulterior motive in pretending to be “just a visitor” and charges the foreigner with misrepresentation at the port inspection.

Even years later an immigration officer will conduct a systems check as part of an application for US citizenship and uncover misbehavior at the original point of entry.  The check supports a claim of misrepresentation.  The immigration officer not only denies US citizenship, but puts the spouse into immigration removal proceedings to challenge the green card.  As such, it is important to have a clean record and intentions when speaking with an immigration officer.  What officers do not like more than nearly anything else is when you don’t let the officer do his or her job by being honest about intentions whenever speaking with an immigration officer.

Types of Visas and Entries

Certain circumstances prohibit a foreign applicant from adjusting status in the U.S. and becoming a green card holder based on marriage.  They include:

• Foreigners who entered the US without inspection at a US port of entry;
• Those who entered the US on visas such as a C1-D crew member or K1 fiance where the US citizen spouse is not the same as the person who petitioned the foreigner on the K1;
• J1 visa holders often have a 2 year home restriction attached; or
• Foreigners with deportation orders.

This is not to say that the foreigner is unable to eventually receive a marriage visa or green card based on marriage.  However, there are serious complications that need to be addressed.

Discretion to Deny

The Trump Administration recently reminded immigration officers that they have the power to deny any case as a matter of discretion even if you meet all requirements.  Consequently, it is important to take all proper steps right from the beginning through to green card issuance.  You must present a compelling case before the immigration body.

Constitutional Protections

On the whole, it is better to process a green card stateside if possible because the US constitution applies more firmly when the foreigner is inside the US.  That said, stateside processing is not always feasible or desirable depending on the circumstances of your case.

It helps to have our office review and assist throughout case processing.  The money should be well spent since our legal fees are reasonable.  You are welcome to call to discuss if you have a serious interest in working with me on case processing.  I hope to hear from you.

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