Applying for a Green Card After Arrival in the United States

An alien spouse who was admitted to the United States in a non-immigrant category, and who is not out of status, may apply for a Green Card if he or she is eligible to receive an immigrant visa and one is immediately available.

If you are a B2 visitor, or a foreign student, or if you enter the US with a WT visa, you can submit a Green Card application after you marry an American citizen.
 
But, you can be sure that CIS will take a very close look at your Green Card application. It’s very possible that CIS will assume that you have entered into the marriage only for immigration purposes. It will be up to you and your spouse to prove that CIS is wrong and that the relationship is genuine.
 
No matter how much you love your spouse, no matter how genuine your feelings are towards each other, the truth of your relationship is only known to you. CIS doesn’t know if it’s true or not. They have to be convinced. That’s the bottom line.
 
CIS may ask how you and your spouse met, fell in love, and decided to marry so quickly. You will need to have convincing answers to questions that CIS might ask about this. Even if the relationship is based on true love, the couple is also aware of the expiration date of the foreign spouse’s non-immigrant visa, so a lengthy courtship is not an option. This is something that the CIS officer should consider.
 
If CIS automatically believes that a relationship is not genuine, would it be better for the foreign spouse to return to Vietnam to have an immigrant visa interview at the US Consulate in Saigon? There is absolutely no evidence to indicate that Consular processing would be any easier than dealing with CIS. If a case is denied at the interview in Vietnam, it could take 6 to 12 months for the Consulate to make a final decision. If the Consulate decides that the relationship is not genuine, the petition would be returned to CIS in the US for another review, taking 6 to 12 months more. So it is never recommended to return to Vietnam instead of applying for adjustment with CIS in the US.
 
We had an inquiry from a foreign student, married to a US citizen. He has to remain in the Bay Area for two more years to complete his studies. His US citizen wife has been offered a good job in Sacramento. They would just be able to meet on weekends. Would that cause CIS to doubt their relationship?
 
In fact, quite a few American couples have some sort of separation due to work, but CIS would almost certainly use such a situation as a reason to suspect a relationship when a foreign spouse is involved. This couple should attempt to find a location where they both can live together full time. If that’s not possible, they should make sure to gather evidence showing on-going, constant contact. That might include emails, phone records, and proof of travel for your weekend meetings.
 
Another inquiry came from a foreign student on J-1 visa who is married a US citizen. His US citizen wife will give birth to their child soon. He asks if their marriage and the fact they have a child would allow him to stay in the US without fulfilling the 2 year foreign residence requirement.
 
In such a case, the couple would have to prove to CIS that the US citizen spouse would suffer extreme hardship if the foreign spouse had to return to Vietnam for two years.
CIS rarely agrees that it is a hardship because the foreign student knew well about the 2 year home stay requirement even before he arrived in America.
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Q.1. I am 19 years old and arrived in the US on a B2 visa. The US Consulate in Vietnam issued the tourist visa to me even though they knew that my parents have Green Cards and that they filed a visa petition for me. My visa petition will not be current for at least a year. Can I remain in the US to wait for that or should I go back to Vietnam?
A.1. If you want to remain in the US beyond the expiration of your B2 visa, you should apply to CIS for an extension of the B2, or a change to F-1 student visa. You should not remain in the US if CIS does not allow an extension or change of visa.
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Q. 2. I am out of status in the US. I’ve heard that my unlawful presence will prevent me from applying for a Green Card in the US, and if I return to Vietnam to apply for an immigrant visa, I will not be able to re-enter the US for 10 years. What can I do?
A.2. There are thousands of people who have the same problem. They cannot adjust status in the US because they have been here unlawfully for more than six months and if they return to their country to apply for an immigrant visa, they face the possibility of a 3 or 10 year bar to re-entry.
 
People like this have only two options. One option is to remain in the US illegally, with no possibility of getting a Green Card. The other option is to apply for a Provisional Unlawful Presence Waiver, with evidence that your US citizen spouse will suffer extreme hardship if you are not granted a visa.

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Q.3. Would CIS want to deport a foreign spouse if he or she has been in the US illegally for a few years?
A.3. At this time, the policy is that immediate relatives of US citizens can remain in the US until some way is found for them to become permanent residents. However, if they are in unlawful status, they are not eligible for any immigration benefits and cannot get work permission or advance parole.
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ROBERT MULLINS INTERNATIONAL www.rmiodp.com www.facebook.com/rmiodp

Immigration Support Services - Tham Van Di Tru 

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