Q: I am a U.S. citizen. If I marry an immigrant, does she automatically become a U.S. resident?
A: No. The spouse of a U.S. citizen or resident does not receive any automatic benefit simply by getting married. Your immigrant spouse would have to go through an application process to receive lawful permanent residence based on that marriage (referred to as a “green card”).
You would be permitted, though not required, to petition for a “green card” for your immigrant spouse. That petition is called an “I-130,” a form used by the Bureau of Citizenship and Immigration Services (BCIS). While the BCIS usually will grant a petition filed by a non-citizen U.S. resident, the immigrant visa for such a spouse may be placed on a waiting list. Spouses of U.S. citizens are not subject to the waiting list, but still must complete processing of the petition, which typically takes several months.
If already in the U.S., your immigrant spouse also must complete an “I-485” application for “adjustment of status.” (An “adjustment of status” refers to the change in legal position that occurs when someone goes from having a temporary visa, or no visa at all, to becoming a U.S. resident). Certain criminal convictions, admitted criminal acts (even if not ending in a conviction) or prior immigration violations may disqualify even the spouse of a U.S. citizen from either “adjustment of status” or being permitted to enter the U.S. from abroad, even if the I-130 is approved.
Q: I am not a U.S. citizen, but I intend to marry one. What requirements must I meet in order to become a U.S. resident?
A: If you are the spouse of a U.S. citizen or non-citizen resident, you must show that: you have the legal capacity to enter into the marriage (for example, any pending divorce must be finalized before you get married); the marriage is bona fide—that is, it was not entered into solely for immigration purposes; and there is no criminal, health or economic reason to prevent your admission to the U.S. In addition, you must provide an affidavit of support (using Form I-864) showing sufficient income or resources so you will not live in poverty. If (as is often the case) the petition is made before the second anniversary of the marriage, the BCIS will issue “conditional residence,” meaning that you can live in the U.S., but such residence may be terminated by the government unless you and your spouse file a joint petition to remove the conditions (INS Form 1-751) during the last 90 days of the two-year conditional period.
Q: I am an immigrant who married a U.S. resident, but he has been abusing me. Might I be considered for residency as an individual?
A: If you have been battered or subjected to other serious abuse by your spouse, you can bring a petition on your own behalf as a “special immigrant” (Form I-360) asking for legal residence. If you already have conditional status, you still can file a Form I-751 on your own to ask that the conditional status be removed. If either application (Form I-360 or Form I-751) is granted, you will become a permanent U.S. resident.
Q: What are some factors that may prevent the immigrant spouse of a U.S. citizen or resident from being able to live in the United States?
A: The Immigration Service has reported problems with fraudulent claims of marriage (e.g., pretending to be married in exchange for pay or as a favor), so people who get married just for the purpose of getting immigration benefits now face greater penalties than in the past. Further, immigrants may not be allowed to become U.S. residents or citizens if they have committed crimes, have been deported in the past ten years or are subject to other penalties because they have lived in the U.S. without proper documentation for more than six months.
Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was originally prepared by Richard Renner of the Dover, Ohio firm of Tate & Renner, and David Leopold of David Wolfe Leopold & Assoc. Co., LPA in Cleveland. It was updated by Jeffrey Moeller of Hermann, Cahn & Schneider LLP in Cleveland.