Although it is one of the fastest ways to obtain permanent residence, marrying a U.S. citizen does not always ensure the granting of legal immigration status.
In general, the process of obtaining a green card based on the marriage to a U.S. citizen poses no complications. Necessary forms, procedures and other details are available on the official website of the United States Citizenship and Immigration Services. Those who marry a U.S. citizen and are already in the United States will submit a one-step application requesting adjustment of status to legal resident. Those outside the U.S. will go through consular processing, a procedure that involves picking up the immigrant visa at the U.S. consulate in their country.
With few exceptions, those who were admitted to the United States because they were in possession of a visa (e.g. tourist, student, etc.), but overstayed by not returning to their countries, may obtain permanent residence based on marriage to a U.S. citizen.
Unfortunately, the same treatment doesn’t apply to those who entered the U.S. illegally. These are considered “inadmissible” because of the accrued unlawful presence and, as a consequence, marriage to a U.S. citizen does generally not allow processing of their documents through the USCIS while they wait in the U.S. In such cases, the application for permanent residence is processed via the U.S. consulate in their country. However, these applicants will have to request a pardon of their unlawful presence which is not simple to obtain. Moreover, the request must be done in person, at the U.S. consulate by completing the Form I-601 “Application for Waiver of Grounds of Inadmissibility” along with other documents presented below.
A decision whether to grant a waiver or not is discretionary and is made by one of the USCIS international offices. In case of refusal, dramatic situations ensue because the couple and their children are forced to live separate for years. Even those who were never in the United States may be denied an immigrant visa despite the fact that there is a real, good faith marriage to a U.S.citizen. This is because of an inadmissibility ground that applies to the applicant, the most common grounds being:[su_row] [su_column size=”1/2″] (1) health reasons: the existence of mental, behavioral or communicable diseases that seriously endanger the safety of others or their property (e.g. tuberculosis, drug addiction);
(2) crimes: drunk driving without a license, or with the license canceled or suspended; kidnapping; theft; fraud; embezzlement; fraud; tax evasion; money laundering; prostitution etc.;
(3) presentation of a false situation with the purpose of obtaining an immigration benefit: e.g. Falsely stating that the person is a U.S. citizen in order to obtain the right to vote or obtain a job.
[/su_column] [su_column size=”1/2″] (4) unlawful presence: overstaying the visa between 180 days to 1 year triggers a bar to enter the U.S. for a period of 3 years. If the overstay exceeds one year, the interdiction is for 10 years. As shown above, this exclusion does not apply to those already in the U.S. who are married to U.S. citizens. These individuals should remain on U.S. soil until the documents are processed by the USCIS and permanent residence is granted.
(5) illegal entry to the U.S. or with false documents;
(6) national security: suspected members of a terrorist group, communist party members or of a totalitarian organization, those involved in genocide or suspected of espionage or sabotage.
Some of the inadmissibility situations stipulated by law may receive favorable decisions depending on the particular circumstances of each case and the evidence presented. Immigration Services (USCIS) or, the immigration judges (for those who are in deportation proceedings) explore these petitions which must include cumulative evidence indicating the existence of one of the following situations:[su_row] [su_column size=”1/2″] (1) The petitioner is the husband/wife, son/daughter or parent of a U.S.citizen or permanent resident, who, as a result of separation, will suffer extreme hardship (emotional, economic, medical, professional, etc.) if the Petitioner is not granted an immigrant visa, OR
[/su_column] [su_column size=”1/2″] (2) at least 15 years have passed since the crime was committed; the person entering the United States would not adversely affect the welfare system, safety and security of the United States; the person has been rehabilitated (has not committed any crimes).
On the other hand, the law provides no exemption for some inadmissibility grounds. In other words, some people are forever inadmissible. This category includes, for instance, drug addicts, persons sentenced to prison as a result of having committed grave acts such as murder or torture, or who after 30 September 1996 claimed to be U.S. citizens in order to gain an advantage.
Even if one of the main objectives pursued by U.S.immigration laws concerns the unity of family, the secondary purpose is to protect the general interests of American society which explains the need for background scrutiny that sometimes leads to the permanent exclusion of some people to immigrate to America.
NOTE: This article is for informational purposes only and does not constitute legal advice. For a detailed analysis of certain situations, those interested are urged to consult a lawyer.