Permanent Residence through Marriage "No-Nos"

When it comes to permanent residence through marriage to a US citizen, there are only a few things a couple can do to lessen their chances of success. Most of the time, the petitions are approved with ease. However, when a couple commits one of the "cardinal sins" of immigration, you want to cry like a baby because they usually make the mistake innocently, with no bad intentions; yet these mistakes can lead to a lot of problems in the permanent residence process.

Here's one of those mistakes: it's perfectly fine to come into the U.S. as a tourist or other non-immigrant and marry an American, as long as enough time has passed after entry to reasonably imply that the decision to marry happened after the decision to enter the US as a non-immigrant. In other words, if a person applies for a non-immigrant visa (such as a tourist visa, student visa, etc.), or asks for such a status at the port-of-entry based on a visa that was issued previously, but has the primary intention of actually getting married and immigrating to the US, that's called "visa fraud" and it could cause an immigration official to deny an immigrant petition.

Here is an example: I was recently called by a young American man in Los Angeles who married a Korean student in a religious ceremony in Korea. He then returned to the US with her to do a civil marriage here. She entered using an F-1 student visa, although she not only had plans to marry and immigrate but she was actually already married from a religious perspective. I don't know how USCIS discovered these facts (unless the couple innocently offered this information in their petition packet) but the couple recently received a notice of denial for the woman's immigrant petition. This may also be because the USCIS knows a person's last date of arrival to the US and the F-1 student's marriage took place within a few weeks of that last date of arrival to the US. So it was reasonable for the USCIS to assume she had planned to marry when she used the F-1 visa. The husband's I-130 (petition to sponsor a non-immigrant spouse) was approved because he is eligible to sponsor a spouse. But his wife's petition to immigrate to the US based on that sponsorship was denied because she entered the US with a student visa and, without realizing it, she committed visa fraud.

The good news is, I believe this couple will succeed in the end because the rights of a US citizen are given the highest priority, and a person has a right to be with the person they married. However, I advised them to get an immigration attorney and the bad news is, this will cost money, take time, and cause stress. However, only an attorney can either file an appeal (claiming the denial was not right) or a motion to reopen and reconsider (submitting new evidence). I like to help everyone but when a couple gets into this situation, they are going to need a lawyer to get out of it.

How could they have avoided this situation? There were really three simple choices. The first would be if the Korean woman felt she had to leave the US, her fiance could have filed a petition for her to return as a K-1 visa holder, by submitting a petition for a fiance visa for her. They would have to wait until the petition is approved and then she could enter with a fiancee visa, fully admitting that she intends to marry and immigrate. The great disadvantage of this situation is that such a petition can take 9 months to a year and that's a long time to be separated.


The second option would have been to do things in reverse. Marry in a civil marriage while the Korean student has been continuously on the F-1 visa and the couple is still in the US. Apply for her to immigrate and wait to get a travel permit or green card (whichever comes first) while she remains in the US. When she has legal travel documents or a green card, and is no longer considered a non-immigrant student, the couple would be safe to return to Korea and do the religious ceremony there as the second marriage act.

The third option would have been to go to Korea but not marry during that trip. Return to the US and wait a while. When a reasonable amount of time has passed (most attorneys will recommend waiting 2-3 months to get married after entering the US as a non-immigrant), get married in the US while the person is still using an F-1 student status and apply for permanent residence. The issue for immigration is not to prevent American men and women from marrying whomever they want. However, there are laws that prevent people from claiming to enter the US temporarily while intending to enter and stay permanently. So the couple that marries in the US has to give immigration a reasonable excuse to believe that the marriage was not planned when the non-immigrant last entered the US. Therefore, if a couple has known each other for a while and they are both in the US and plan to marry, it's always better to marry and apply for permanent residence prior to the next trip outside the US. That's the safest way to do things. Dozens of couples with whom I have worked have married quickly and quietly at the City Hall, received the license and filed a petition for permanent residence. They then return to their home country the following year for a big family religious ceremony that "counts." It may not be ideal, but it's the best way to succeed.