The Foreign Marriage: Choosing Whether to Marry Your Immigrant Spouse Inside or Outside of the U.S.

If a U.S. citizen wishes to sponsor his or her spouse for a green card (“lawful permanent residency” under U.S. immigration law; see http://www.uscis.gov), timing can always be an issue. Whether a U.S. citizen marries the immigrant spouse inside or outside of the U.S. can affect how soon the couple can begin living together in the U.S.

When a U.S. citizen marries a foreign national (“immigrant” for purposes of this article) and the marriage takes place outside of the U.S., it could be difficult for the immigrant spouse to enter the U.S. as s/he once did, i.e., on a tourist visa or other temporary visa to visit his or her family, friends, and spouse.

The reason that re-entry into the U.S. is difficult for an immigrant is that when an immigrant marries a U.S. citizen, that shows CIS and airport DHS inspection officers that the immigrant has the permanent intent to stay in the U.S. and not return to their home country. Yet, when the immigrant tries to enter on a tourist visa or other temporary visa, the immigrant is telling CIS that s/he plans to stay only for a short period in the U.S. This conflicting temporary v. permanent intent problem (commonly referred to as “dual intent”) usually results in CIS concluding that the noncitizen committed “visa fraud.” Further, if a DHS (www.dhs.gov) inspecting officer at the airport discovers that the immigrant is married to a U.S. citizen when the immigrant tries to enter on a tourist or other temporary visa, the officer will be likely to conclude that the immigrant will overstay their visa and live permanently in the U.S. because of the existence of a U.S. citizen spouse giving the immigrant “good reason to stay” in the U.S.

Because of this and due to potentially longer processing times with immigrant visas and the K-3 (a temporary visa that allows spouses of U.S. citizens to enter the U.S. to wait until their immigrant visa based on the marriage is processed and approved), many couples decide to marry within the U.S. to take advantage of the usually faster Adjustment of Status process instead of waiting for consular processing.

Many times, couples prefer to legally marry in the U.S. but then have a renewal of vows or another ceremony (often called a religious ceremony) for friends and family abroad, so they can start the immigration process for the immigrant spouse as soon as possible while the immigrant spouse is in the U.S. This option could also prove risky because if the immigrant spouse entered on a temporary visa (such as tourist visa), a CIS officer at the green card interview in the U.S. may conclude that the immigrant committed visa fraud – i.e., never disclosed his/her intent to marry and stay in the U.S. when entered with a tourist visa.

Regardless, where you decide to legally marry (not necessarily a religious ceremony or even a wedding, perhaps just a justice of the peace), could significantly change your options and processing times and what path you choose. It is always best to discuss your wedding plans with a qualified immigration attorney to decide what path is best for your situation and the consequences and benefits of marriage outside and inside the U.S.

The Immigrant Visa Process

Once a U.S. citizen marries an immigrant spouse whether inside or outside of the U.S., the U.S. citizen will have to apply for an immigrant visa and provide all supporting documentation for that application with U.S. Citizenship & Immigration Services in the U.S. Once CIS approves the petition, the case is (www.travel.state.gov) for continued processing.

Once a visa number is assigned to the case and final documentation received, the case is transferred to the consulate nearest the noncitizen spouse’s foreign address, which will arrange for the spouse to be interviewed (much like a green card interview in the U.S.) by a consulate nearest the immigrant spouse’s foreign residence. Assuming all goes well, the spouse will be issued a green card in his or her passport upon entry into the U.S. The processing time for this entire process can take 9 months – 2 years, depending on which state the U.S. citizen spouse resides in.

There are a few exceptions to this process, that allow a couple to save months of processing time so as not to be separated for long periods. If time is a concern and before a couple tries to cut corners in the immigration process, a couple should consult an attorney right away, so as not to make any decisions that could ruin the immigrant spouse’s chances for a green card.

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