Marriage-based immigration is an arduous process. It involves several steps to acquire a legal immigration status that will eventually lead to US citizenship. The steps involved will directly depend on the situation of the parties involved, as well as several other factors. The following provides a basic overview of the various visa types and processes for marriage-based immigrants:
The Marriage Based Immigration Process and how it Works
K-1 Visa Process
Fiancés of US citizens generally enter the United States on a K-1 Visa. Fiances are required to marry within 90 days of entering the US via the K-1 Visa or they are required to depart. The process for applying for a K-1 Visa is as follows:
1. File form I-48.5 (Application to Register Permanent Resident or Adjust Status)
2. Wait for form I-485 Approval.
3. Once approval is received, your immigration status is changed to a conditional permanent resident for a minimum time period of two years.
Caution: Anyone entering the United States on a K-1 Visa, who is found guilty of violating the terms of the Visa, is subject to removal proceedings and/or other penalties. The following acts would be considered to be violations:
· Remaining in the US without marrying your fiancé
· Marrying another individual
K-3 Visa Process
Spouses of US citizens who have married prior to entry to the US may enter the US using the K-3 Visa process. The steps for doing so are as follows:
1. File form I-130.
2. Wait for approval.
3. Once form I-130 is approved, the status of lawful permanent residence is gained.
4. Next, file form I-485. (Application to Register Permanent Residence or Adjust Status)
For issues not covered by the K-1 and K-3 process, foreign nationals should refer to any information provided by the US consulate. Also, additional information can be located at: http:///www.uscis.gov
There are Harsh Penalties for Marriage Fraud
Foreign nationals who attempt to receive immigration benefits by knowingly entering into a false marriage can be subject to imprisonment for 5 years and fines up to $250,000.00. Foreign nationals who commit marriage fraud may also be subject to removal and permanently barred from any future attempts at immigrating to the US.
Immigration Benefits for Common Law Spouses
A common-law marriage is a marriage that takes effect, without obtaining a license or performing a ceremony, when a couple live together as husband and wife, and hold themselves to the community as husband and wife.
The Board of Immigration Appeals determined that immigration benefits may be extended depending on the laws governing whether a common law marriage was legal in the U.S state or foreign country in which the couple primarily resided.
US States Support Common Law Marriages
The following 14 US states, and the District of Columbia recognize common-law marriage:
· Rhode Island
· South Carolina
Immigration Benefits for Couples Involved Same Sex Marriages
In order for a marriage to be valid for immigration purposes it must not violate federal law, even if state law supports the marriage in question. For same sex couples this is problematic because the federal Defense of Marriage Act still defines marriage as existing only between a man and a woman. Unfortunately this means that no immigration benefits can be conferred.
Immigration Benefits for Domestic Partners
Individuals involved as domestic partners have historically been allowed entry under the following conditions:
1. Their primary purpose in immigrating is to accompany their partner who possesses authorized non-immigrant status; and
2. They have no intention of working while remaining in the US under B-2 status
These rules apply to domestic partners who are in heterosexual or same-sex relationships.
While non-spouses may not accompany aliens to the U.S. in dependent non-immigrant status, the Department of State, USCIS, and Customs and Border Protection (and their predecessor organization) have a long standing policy of permitting domestic partners to accompany long-term non-immigrants to the United States, provided that the cohabiting partner can prove that:
1. His/ her primary purpose in coming to the U.S. is to accompany his/her partner, who is in an authorized non-immigrant status; and
2. He/she does not intend to work while in B-2 status
This applies both to opposite-sex and same-sex partners, but this type of visa has several limitations that aren’t provided for under other types of visas.
· Both partners must stay for the same period of time and apply for extensions concurrently.
· They must establish they have a residence abroad that they intend to maintain.
· Permanent residence cannot be obtained through this visa for the domestic partner.
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