An individual seeking to reside permanently in the United States needs a green card.
There are various ways to get a green card, such as through employment or as an investor. However, spousal sponsorships have certain advantages. For instance, you do not have to wait for the Department of Labour to approve your job before you apply to the Immigration office and there are no quotas for the number of applicants in this category that can receive green cards in any given year. Such an application will also cure certain deficiencies, such as previous unlawful presence or minor legal infractions.
There are basically three different spousal sponsorship scenarios in US immigration: applying to join your spouse in the US, applying to remain with your spouse in the US, and applying to enter the US for the purpose of marrying a fiancé(e).
Joining your spouse in the US
The application to join your spouse in the US, that is to say to get a green card, may take 8 to 12 months. Once you’ve applied for a green card, it can be difficult, if not impossible, to visit the US during the processing period because you will be presumed to have the intent to stay permanently in the US when examined by an immigration officer at a port of entry to the U.S.A. However, new rules put in place in 2001 allow you and your children to apply for temporary visas to live in the US while awaiting the processing of your paperwork within the country. But many couples prefer to wait a few months longer and have all the paperwork completed by the foreign Consulate. This is because expediting the arrival can unfortunately be followed by substantial internal delays for the green card to be processed in the United States since by and large Consular processing has been quicker.
Remaining with your spouse in the US
There are certain benefits in applying for a green card from within the USA. The biggest one is that, although the process can take over a year, you are already in the country with your spouse. If problems arise in your case, you will be able to wait for a decision in the United States and you can appeal a negative decision. You can apply for work authorization along with your application for a green card, and certain paperwork can be conducted more smoothly. Unfortunately, you won’t be able to leave the US during processing without getting special permission – even for an emergency.
Any applicant for an immigration benefit has the burden of proving their eligibility. A key concept regarding visitors who marry while visiting the United States is the added burden of proof arising from the presumption of pre-conceived intent. The presumption applies to anyone who marries inside the U.S. within 30 days of their arrival. The concept is that while the visitor claimed they were only coming for a visit, in fact they are presumed to have had the pre-conceived intent to marry and stay permanently. This means that any such applicant for permanent residence as a spouse of a U.S. citizen will have a heavy burden of proof to offset in order to succeed. In effect, a marriage of convenience for illegal immigration is presumed.
After 30 days and up to 60 days following arrival, the presumption is replaced by a negative inference of pre-conceived intent. The burden of proof is still on the applicant but it is not as hard to show that the marriage was legitimate as during the presumption phase. After 60 days the negative inference disappears and all that remains is an onus on the couple to show that their marriage was legitimate. It is also worth mentioning that entering the as a visitor and then marrying and applying for a green card from inside the country is not encouraged since, as a matter of policy, the U.S. government would have a nightmare if all couples decided to apply this way. In fact, knowingly doing this is fraud and can result in a five year bar to entry if the fraud is uncovered by U.S. Immigration officials. Nonetheless, an application made
inside the U.S. will not be automatically denied solely on that basis. Factors that will be considered are things like when the couple decided they should marry, why they didn’t apply from abroad, when they started making their wedding arrangements, whether they had any of the arrangements set within the 60 days after arrival, etc.
To meet the burden of proof of legitimacy of the marriage the couple should take pictures of the wedding, have a white dress and tuxedo, have lots of witnesses and family present, have a ring, be married by a religious official if possible, have a reception, and go on a honeymoon. In short, the wedding should be real.
If you qualify for a green card through your spouse, but your marriage is less than two years old, you will obtain a two-year conditional status. You can apply to remove the conditional status at the end of two years. Normally both parties apply. However, in certain situations when the marriage falls apart, such as in battered spouse circumstances, one party can still succeed.
Entering the country to marry your fiancé(e)
American immigration allows you to enter the United States to marry your fiancé(e), provided you do so within 90 days. You can then immediately apply for a green card.
While Canadians typically don’t require a visa to visit their neighbor to the south, this is an exception to the rule. Although this can take 6-8 months for processing, it is the legal way of entering the United States with the intention of marrying a US citizen. You can also live and get permission to work in the US from the date of entry. But, in reality, there are two applications involved here: the first just to enter the country for the marriage, the second for permanent resident status. The first takes 6-8 months, but the second adjustment of status is another 12-18 months more.
Are children included in the process?
A child will qualify under the petition if the parents wed before the child turned 18.