Love Is In The Air
Or at least it seems that way. There’s been an upswing in the number of couples coming to me to ask about getting immigration benefits by marrying either a Lawful Permanent Resident or a United States citizen. This warms my heart, since I’m a married man myself and I like to see couples starting a new life together. However, there are some pitfalls in this type of case and I thought I’d spend some time to discuss some of the more common ones.
First and foremost, in order to get your “green card” based on a marriage, you either need to 1) have entered the United States legally, or 2) be eligible for grandfathering under section 245(i). If you don’t meet at least one of these criteria, you aren’t eligible to get your green card through marriage.
“Grandfathering under section 245(i)” is actually a rather complicated topic that is more properly the subject of a separate column. However, very briefly, if you have had either a Labor Certification or a Visa Petition filed on your behalf any time on or before April 30, 2001, you might be grandfathered under 245(i). You will need documentary evidence of this – which means either a Receipt Notice or an Approval Notice – so you should look for this document and bring it with you when you consult with your attorney about your case.
“Entered the United States Legally” can also be complicated, but in brief summary it means coming to the United States using a passport and a visa, in your name, that was lawfully obtained at a U.S. Embassy or Consulate abroad. If the passport and visa were not in your name, or do not contain your correct birthdate, or were obtained through a “travel agency” or some other method that did not involve a trip to the U.S. Embassy, then you may not have entered legally. The attorney handling your case will want to see your passport and visa to ensure that there are no problems or issues regarding your entry.
Once you have determined that you are eligible to apply for a green card based on your marriage, you still need to determine whether your marriage is bona fide for immigration purposes. This requires first that the marriage is legal – i.e., that any prior marriages were lawfully terminated prior to the current marriage (you’d be surprised at how many people “jump the gun” and remarry before their divorce is final) and that the current marriage is lawful under the laws of the State where it occurred. This also requires that the marriage was not entered into for the purpose of obtaining an immigration benefit – this is where many people run into trouble.
I’m sorry to say it, but the Philippines is a “high-fraud” country with a long history of Filipino’s trying to get their green cards by marrying US citizens. Because of this, marriages involving Filipinos are closely scrutinized by US immigration officials. If you have entered into a “marriage of convenience” US immigration will find out – trust me on this. I started my career in immigration handling marriage fraud cases and US immigration is very, very good at sniffing out fraudulent cases – so good, in fact, that it sometimes thinks that perfectly legitimate marriages are fraudulent – and this is why it is usually advisable to hire an immigration lawyer to help you with a case like this.
Immigration Officers adjudicating these types of cases expect to see a typical “storybook” marriage, with the couple being close in age, marrying after some period of courtship, then marrying and living together, sharing household duties, commingling assets and finances, etc. This does not mean that every marriage based case must have all of these things. I have successfully handled “May-December” marriages where one spouse is significantly older than the other, cases where the spouses live in separate houses – and sometimes even in separate states, and cases where the couple did not commingle their assets or finances and/or did not file joint tax returns. However, if you have a marriage with one or more of these issues, you will need to explain to the officer why you are doing what you are doing, and the explanation will have to make sense.
I guess the “moral” to this story is “Marry, O people, that from you may appear he who will remember Me” (no, not me – Him). However, be careful before you apply for a green card. There are pitfalls on that path, and US immigration is digging more of them every day.
