Marriage to a Foreign Spouse–The Procedure and Potential Ramifications

A U.S. citizen who wants to marry a non-U.S. citizen (LPR) can help their fiancé obtain legal permanent resident status in several different ways:

 OPTION 1 - Fiancé Visa (Form I-129F-Petition for Alien Fiancé)—Used when the fiancé is abroad, and the U.S. citizen wants to marry inside the U.S.: This Visa allows the foreign national fiancé to enter the United States for 90 days in order for the marriage ceremony to take place inside the United States. After being married, the foreign national spouse is able to apply for LPR status and remain in the U.S. while United States Citizenship and Immigration Services processes the application. There are five steps involved with this option:

Step 1: The U.S. citizen (the petitioner) files Form I-129F, Petition for Alien Fiancé(e), with USCIS. The petitioner must show that both parties are free to marry and intend to marry within 90 days of the foreign national’s admission to the United States as a K-1 nonimmigrant. A K-1 Visa allows a U.S. citizen to bring a fiancé to the United States for the purpose of marriage and becoming a lawful permanent resident. If USCIS approves the Form I-129F, the approval means that USCIS recognizes there is an intended marriage. An approval does not give the foreign national permission to travel to the U.S. and does not guarantee that the Department of State will issue the K-1 Visa.

Step 2: The Department of State National Visa Center issues the foreign fiancé a case number and sends the petition to the Embassy or Consulates where the foreign fiancé will apply for the K-1 Visa. The DOS conducts background checks, including fingerprint checks, on the K-1 Visa applicant (the foreign fiancé). The Visa applicant must bring documents to the Visa interview including proof of the relationship and proof of medical examination. If a DOS consular officer finds that the applicant is a bona fide fiancé eligible for the Visa, the DOS will issue a Visa and the fiancé has no more than six months to travel to the United States and seek admission. Please note that the K-1 nonimmigrant Visa simply allows an individual to travel to the United States to seek admission at a port of entry. Having a K-1 Visa does not guarantee admission.

Step 3: The K-1 Non-Immigrant Visa Holder travels to the United States and seeks admission by Customs and Border Protection at a Port of Entry. If CBP admits the K-1 Visa holder, the period of admission is 90 days. Admission on a K-1 Visa is conditioned on marrying the same U.S. citizen petitioner within those 90 days. Generally, this period cannot be extended.

Step 4: The Foreign Fiancé Applies to USCIS for Adjustment of Status to Lawful Permanent Residence. Once married, the foreign national spouse should file Form I-485, Application to Register Permanent Residence or Adjust Status, as soon as possible. If lawful permanent residence is granted before the second anniversary of the marriage, the foreign spouse will be given a two-year conditional permanent resident status and a Green Card valid for two years. However, if permanent residence is not granted until after the second anniversary of the marriage, the applicant will be given lawful permanent resident status without conditions and a Green Card valid for 10 years.

 Step 5: The Conditional Permanent Resident petitions USCIS for removal of conditions on his or her residency by filing Form I-751, Petition to Remove Conditions on Residence, jointly with the U.S. citizen spouse. A conditional permanent resident must petition to remove conditions on his or her status within 90 days prior to the end of his or her conditional resident status. The conditions must be removed, or the conditional permanent resident will lose lawful permanent resident status and be subject to removal from the United States.

OPTION 2: Marriage Taking Place Abroad (Form I-130, Petition for Alien Relative): If a U.S. citizen marries overseas, they can then file a Form I-130 for their new foreign national spouse. When the Form I-130 is approved and a Visa is available, it will be sent for consular processing and the Consulate or Embassy will provide notification and processing information. In certain circumstances, the foreign national spouse may come to the U.S. while the Visa Petition is pending. The foreign national spouse of a U.S. citizen who has filed Form I-130 is eligible to apply for a nonimmigrant K-3 Visa. This will entitle the foreign national spouse to come to the U.S. to live and work while the Visa petition is pending. To petition for this benefit, the U.S. citizen's spouse must file Form I-129F, Petition for Alien Fiancé. Please note that the U.S. citizen’s spouse is not required to file Form I-129F. The foreign national spouse may wait abroad for immigrant Visa processing. However, seeking a K-3 Visa can be an additional method for the foreign national spouse to come to the United States.

 ​​​​​​​OPTION 3: Marriage in the U.S. and Fiancé already in U.S. in another Legal Immigration Status: If the foreign national fiancé (subsequent spouse) is already legally in the United States, he or she may be able to file a Form I-130 application with a concurrent Form I-485 (Application to Register Permanent Residence or Adjust Status) application to adjust status based on the U.S. citizen’s spouse’s approved Visa petition. However, a foreign national should not enter the U.S. on a Tourist Visa with the purpose of marriage to a U.S. citizen. There could be serious problems for the foreign national fiancé if he or she enters the United States on another Visa with the intention of marrying and residing here. Attempting to obtain a Visa or entering the United States by saying one thing when you intend another may be considered immigration fraud, for which there are serious penalties. Those penalties include restricting a person’s ability to obtain immigration benefits, including permanent residence, as well as possible fines and imprisonment. Also, if the foreign national fiancé is in the United States and entered unlawfully, in most cases he or she will not be able to adjust status to that of a permanent resident while in the United States. In this situation, once the U.S. citizen marries the foreign national, the U.S. citizen may file an I-130 relative petition for the foreign national as their spouse. If approved, the foreign national spouse will have to pursue an immigrant Visa at a U.S. Embassy or consulate overseas. However, an undocumented fiancé/spouse may be eligible for parole in place in one year increments if he or she is the spouse of an active-duty member of the U.S. Armed Forces. With a parole in place, an undocumented spouse may be able to adjust status while remaining in the United States. Parole in place may be granted only to individuals who are present without admission and are therefore applicants for admission. If the spouse was admitted to the U.S. lawfully but is present in the U.S. beyond the period of stay authorized, he or she is not eligible for parole in place because he or she is not an applicant for admission. Please keep in mind that marriage to an undocumented spouse may have ramifications for a Soldier’s security clearance. In cases where the U.S. citizen/security clearance holder commits crimes or facilitates crimes (i.e., by smuggling the family member across the border, or by providing financial support for an illegal alien, or by harboring the undocumented), the security clearance holder may be risking their clearance. However, as previously mentioned, an undocumented Fiancé/spouse may be eligible for parole in place in one year increments if he or she is the spouse of an active-duty member of the U.S. Armed Forces. With a parole in place, an undocumented spouse may be able to adjust status while remaining in the United States.

If you have more questions about this topic, please schedule an appointment to speak with an attorney at the Fort Bliss Legal Assistance Office by either calling (915) 568-7141 during office hours or emailing anytime.