Many persons inquire as to the
method of obtaining permanent residence through marriage to
a US citizen. The process is one of the easiest of all the
many methods of obtaining status here. Of course, all marriages
must be valid, legitimate and genuine in order to qualify
the alien for permanent residence.
A person on a valid tourist visa who has never
been out of status in the US can apply for permanent residency
if they marry a US citizen. If the person came to the US on
a fiancee' visa or other visa or is illegally here, there
may be circumstances where the process cannot take place in
the US, but must occur in their home country. Assuming the
process can take place in the US, an application must be submitted
along with documents to prove the validity of the marriage
and an interview takes place at the INS office. It generally
takes approximately one year to obtain "conditional permanent
residence". Conditional permanent residence is granted for
two years.
After two years from the granting of conditional
permanent residence, an application for final permanent residence
must be submitted, documenting that the marriage still exists.
As stated above, because all marriages must be
genuine in order to qualify the alien for permanent residence,
I would strongly discourage anyone from filing an application
based upon marriage where there was any intent to file for
a divorce in the future, and I could not represent a person
if there was such an intent. In the event a divorce occurs
after the filing of the application but before the application
for conditional permanent residence is granted, the application
will be denied and the alien may be put in deportation proceedings.
If, due to completely unforeseen circumstances, a divorce
occurs after the filing of the application and after the application
is granted, but before the application for final permanent
residence is granted, then the alien must apply for a waiver
of the two year marriage requirement. A divorce coming after
the granting of permanent residence would not effect the alien's
status unless the INS reviewed the matter and concluded the
marriage was fraudulent.
Any permanent resident must wait five years to
apply for citizenship, unless they obtained permanent residency
through marriage, in which case the waiting period is three
years. If a divorce occurs after the granting of permanent
residence but before citizenship, the alien must wait five
years for citizenship.
I recommend that, before one takes any specific
action on any specific case, he or she should retain an immigration
lawyer and discuss all the facts of the case. There may be
relevant facts that would affect the outcome that should be
discussed with a lawyer before any filing. Do not rely solely
on this article to file any application or take any specific
steps without first consulting an immigration lawyer.
WARNING: The following is article
discussing legal issues. It is not intended to be a substitute
for legal advice. We recommend that you get competent legal
advice specific to your case. If you would like such advice
from our office, call (415) 777-4445 or (916) 349-2900 or
(408) 993-9737.
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