Marriage to a US citizen is one of the surest and most popular ways of obtaining permanent residence in the United States. Marriage to a US permanent resident is also a popular and effective way to immigrate, although significant delays are likely. For most people, the greatest difficulty in immigration through marriage is not qualifying in the first place, as might be the case for an EB visa, but organizing the application and assembling the paperwork.

Fiancée Visa versus Marriage “Green Card”: Which is Better?

Fiancée/Fiancé Visa vs Marriage “Green Card”

Fiancée Visa vs Marriage “Green Card”

The fiancée (K3) visa is one way to immigrate through marriage from outside the US. It is available to fiancees of US citizens. A fiancee visa allows you to enter the United States for a 90-day period of stay. Once you entered, you have 90 days to either marry your partner or leave the US. Of course, if you are already in the US and you seek merely to adjust your status to permanent resident, you don’t need a fiancee visa.

The advantages of a fiancee visa include:

  • You might be able to enter the US faster with a fiancee visa (typically in six or seven months) than by waiting for the USCIS to approve an I-130 petition filed by your partner on your behalf.
  • You can get married in the US if that is what you prefer.
  • If you are a same-sex couple and you live in a jurisdiction where same-sex marriage is illegal, a fiancee visa might be your only way of immigrating to the US through marriage.

The disadvantages of a fiancee visa include:

  • Fiancée visas are issued only to fiancees of US citizens, not to fiancees of permanent residents
  • You may need concrete wedding plans, along with evidence of these plans, to convince a US embassy or consulate abroad to issue you a fiancee visa.
  • Total filing fees are several hundred dollars higher when you immigrate through a fiancee visa rather than a marriage-based immigration visa, mainly because there is a $1,140 fee needed to adjust your status to permanent residence after you enter the US.

Adjustment of Status vs. Consular Processing

U.S. Embassy Sign

U.S. Embassy Sign

The process for obtaining marriage-based permanent residence in the US differs according to whether you are located inside or outside the US:

  • If you are located in the US, your spouse should file Form I-130 (Petition for Alien Relative) on your behalf, and you should file Form I-485 (Application to Register Permanent Residence or Adjust Status) with the USCIS. In most cases, both of these applications can be filed at the same time.
  • If you are located outside the US, your application will be handled by the National Visa Center, and you will have to appear at a US embassy or consulate at your place of residence.  It generally takes a few months longer to receive approval by consular processing than by adjustment of status inside the US. If your spouse is a permanent resident holder, consular processing might even add a year or two to your wait time. 

Proving a “Bona Fide” Marriage

Marriage Certificate Signature

Marriage Certificate Signature

To be issued a green card based on marriage, you must establish that your marriage is “bona fide.”

You can prove the bona fide nature of your relationship in more than one way:

  • A valid marriage certificate, of course, is a required component of your application.
  • You will have the opportunity to demonstrate the bona fide nature of your marriage in the I-130 petition by, for example, submitting wedding photos, photos of you and your spouse together, photos of you and your spouse together with in-laws, correspondence between you and your spouse, joint bank account statements, etc.
  • You and your spouse may be interviewed either together or separately in an attempt to determine whether your marriage is bona fide. That’s when you might be asked personal questions such as “What color is your wife’s toothbrush?”  If you are asked this question while being interviewed separately, you can be confident that your wife will also be asked the color of her toothbrush, and that your answers will be compared to see if they match.

Request for Evidence, Notice of Intent to Deny

In many cases, marriage-based immigration applicants will receive a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID)  after submitting the immigration petition. These two documents are quite different:

Request For Evidence

Request For Evidence

  • It is not at all unusual to receive an RFE (the National Visa Center calls it a “checklist letter”) a few months after the immigration petition is submitted. The matter is often routine — you forgot you include a required element of your application, or you included a photocopy of your birth certificate instead of a certified copy, for example. You must respond promptly, and you only get one chance to respond.
  • It is a serious matter to receive a NOID, because it means that the problems with your application are so serious that it will be denied unless you submit enough evidence to change the examiner’s mind. It might mean, for example, that the USCIS doubts that your marriage is bona fide. If you fail to respond within 30 days, your application will be rejected. NOIDs are typically issued after both spouses are interviewed.

US Citizen Petitioners Who Reside Abroad

U.S. Citizenship and Immigration Services

U.S. Citizenship and Immigration ServicesIf you live abroad with your spouse, if you intend to file an I-130 petition so that your spouse can return to the US with you as a permanent resident, and if you do not wish to return to the US simply to file the petition, you have the following alternatives available to you:

  • File the petition with a USCIS office located abroad;
  • If you live in a country that does not have a USCIS office, you can mail your petition to the USCIS Chicago Lockbox.
  • Under special circumstances, you might be able to convince a US embassy or consulate to accept your petition. It is unusual for such a request to be granted, however — generally, US embassies and consulates do not accept I-130 petitions.

Same-Sex Marriages

Two men Holding hands at same sex marriage

Two men Holding hands at same-sex marriage

If you are married to a same-sex partner, you are eligible for immigration benefits on the same terms as opposite-sex spouses, regardless of whether you live inside or outside the US. Nevertheless, certain immigration difficulties are encountered by same-sex couples for more often than opposite-sex couples:

  • Although the US recognizes same-sex marriages as legitimate, many countries do not. One way in which this lack of recognition can affect your immigration application is that if you cannot marry your partner because same-sex marriage is illegal in your jurisdiction, you cannot enter the US on a marriage-based immigration visa. In this case, your best bet would probably be to apply for a fiancee visa that would allow you to enter the US and marry there.
  • In many countries, it is socially disadvantageous and even dangerous to live as an openly gay couple. Consequently, gay couples may lack relationships with their in-laws, they may have avoided establishing joint bank accounts, etc. This could make it difficult to prove to US immigration authorities that your marriage is “bona fide.”

Notice of Intent to Revoke

Revoked Illustration

Revoked Illustration

A Notice of Intent to Revoke (NOIR) is a notification from the USCIS that it intends to revoke an already-approved I-130 immigration petition. The USCIS will do this (even if your petition was originally handled by the National Visa Center) if it discovers information after the approval that indicates you are not eligible to immigrate. This is bad news, even if you fight back and eventually prevail because at the very least it will subject you to substantial delays.

The NOIR will list the reasons for the intended revocation, which might include:

  • It suspects marriage fraud. This may happen in response to a bad visa interview.
  • The US petitioner is ineligible to sponsor you for immigration. This may happen, for example, if your sponsor is suddenly fired and consequently lacks the financial resources to support you.
  • You are ineligible to immigrate based on marriage because, for example, you are still legally married to a previous spouse.
  • The USCIS made a mistake.

You will need to respond with new, persuasive evidence within 30 days to avoid revocation.

Marriage Fraud

Marriage Fraud Elements

Marriage Fraud Elements

To qualify for marriage-based immigration benefits, your marriage must be bona fide. “Bona fide” means that (i) your marriage is legal in the jurisdiction in which it took place, as well as legal under US law (polygamous marriages are not recognized, for example); and (ii)  you married with the intention of building a life together, as opposed to marrying primarily for immigration purposes.

That doesn’t mean that immigration benefits may not have figured into your decision to marry — it’s OK if immigration was a factor, it’s just that your marriage will not be considered bona fide if it was entered into primarily for immigration benefits. A marriage that is not bona fide is considered fraudulent for immigration purposes.

If US immigration authorities determine that you committed marriage fraud, your petition will be denied or revoked, you may lose access to future immigration benefits, and in extreme cases, you may even be criminally prosecuted.

Inadmissibility: General Fraud, Criminal, Public Charge, etc.

Marriage Fraud is a Crime

Immigration Fraud is a Crime

When you seek marriage-based immigration benefits, US immigration authorities are interested in more than just the legitimacy of your marriage. You can be found “inadmissible” to the US for a variety of reasons, including but not limited to:

  • Health reasons such as drug addiction, certain mental illnesses, and failure provide proof that you have been vaccinated;
  • Certain criminal offenses;
  • Membership in the Communist Party (sometimes);
  • Previous immigration law violations;
  • Lack of a valid passport; and
  • Lack of proof of sufficient financial support.

Among the foregoing grounds, the last item is the one that trips up applicants for marriage-based immigration most often. The US petitioner must submit an Affidavit of Support (Form I-864) to the USCIS. Your application can be denied if his or her income fails to meet the minimum standard, and you can be denied entry into the US, even with a valid visa, if new information shows that you lack sufficient income to avoid relying on public funds while in the US.

The appeal of I-130 Denial

Denial Road Sign

Denial Road Sign

If you believe that US immigration authorities are convinced that your marriage is fraudulent, and if you do not believe that you have enough evidence to prove otherwise, appealing a denial might get you into even more trouble, especially if you reside in the US. On the other hand, if your marriage is legitimate and you believe you can prove it, failing to challenge a denial could leave you worse off by restricting your future immigration benefits.

If you think you can overturn the decision, however, appealing it might be a good idea. The steps to filing an appeal are:

  • Complete Form EOIR-29, Notice to the Board of Immigration Appeals from a Decision of an Immigration Officer and gather together any supporting documentation you need. You are permitted to include a brief detailing your arguments.
  • The sponsoring spouse must file Form EOIR-29, together with the $10 filing fee and any accompanying documentation, with the District Director of the USCIS local office that denied your visa petition.USCIS will forward your petition to the Board of Immigration Appeals (BIA), a US government agency that is independent of the USCIS. Your appeal must be filed within 30 days of the original denial.
  • There will be no hearing. Instead, the BIA will consider your appeal and then either accept it, reject it or remand it to the USCIS. “Remanding” your appeal means that the BIA will instruct the USCIS to reopen your case and reconsider it in light of new instructions issued by the BIA (this won’t necessarily stop the USCIS from denying the petition again).

Although thousands of overseas spouses successfully immigrate to the US every year, in any application there are dozens of possible mistakes that could be made, any one of which could delay or even completely derail your application. The assistance of a trained immigration professional can greatly reduce the chances of this happening.