Marriage Based Green Card Q & A

Living so close to one of the busiest U.S.-Canadian land borders, our practice sees significant business in the marriage based green card category.  Today’s blog focuses on the marriage green card.  If you are a Canadian, or foreign national of any country,  who marries a U.S. Citizen (“USC”), you are eligible to immediately apply for U.S. Permanent Residency.  Depending on how you file this application, you should carefully consider several issues relating to travel in and out of the U.S. while your petition is pending.

Here are some questions we frequently address for marriage based green card clients.

Do I automatically get a green card just by marrying an American?

No, you must file an immigrant visa application with USCIS (United States Citizenship and Immigration Services).  These applications include evidence of the bona fide relationship through marriage certificates, proof of termination of previous marriages, and documentation of your relationship.  You can file the application while you are either in the U.S. or abroad, and you should consider the pros/cons of both options according to your personal circumstances.

We got married in Canada and filed a green card petition.  I am currently living and working in Ontario, and my USC spouse lives and works in the U.S.  I’ve heard it may be difficult to travel to the U.S. while my application is pending.  Can I still come down to visit her on the weekends?

Once CBP officers are aware that you have married a U.S. citizen or have a marriage-based green card petition pending, they will presume that you intend to reside with your spouse as a married couple in U.S.  You will want to keep your visits to a minimum and have documentation supporting your intent to return to your current residency in Canada until you have a valid green card.  Our office can further advise on strategic crossings.

I met my spouse while I was in the U.S. on a TN visa, and we got married last month.  Can I file for my green card and continue working in the U.S?

Yes.  In addition to filing a marriage-based green card petition, you will also file an additional application to ‘adjust your status’ from that of a nonimmigrant to an immigrant. You can do this while continuing to live and work in the U.S. with your spouse.  Couples like this option because they do not have to spend a long amount of time apart from each other.

I’ve heard that if I file my green card petition from within the U.S., I can’t leave until it’s approved.  Is that true?  What if I want to visit my family in Canada?

When you apply for adjustment of status, it is possible to get permission from USCIS to travel while your application is being processed.  This permission is called “advance parole,” and USCIS is currently taking about 60-90 days to process these applications.  If you leave the U.S. before the advance parole is approved, the government believes that you have “abandoned” your green card application.  Therefore, you should not travel unless there is an absolute emergency- and you should consult an experienced border attorney prior to leaving the U.S. under these circumstances.  Once the advance parole is granted, you will be able to leave and enter the U.S. freely.

My friend was married at the Courthouse in the U.S. and then went back to Canada for  a big ceremony.  How was she able to do that?

The civil marriage is considered the “official” marriage in the U.S., so someone who wishes to have two separate marriage ceremonies (a civil marriage and a religious ceremony, for example) could get married at the courthouse and then file a green card petition.  She would not be able to leave the U.S. until her advance parole was approved, but once issued, she could then travel back to Canada for the religious service.

Can I enter the U.S. as a visitor and then marry my USC partner?

While Canadians are able to cross the border without a visa, they are still technically nonimmigrant visitors for immigration purposes.  If you enter the U.S. as a visitor with the true intention to get married, you might face accusations of visa fraud upon applying to adjust status.   USCIS will likely be suspicious and frown upon this, particularly if you knew your U.S. spouse before arriving in the U.S. as a temporary visitor.

We recommend consulting an immigration attorney before filing your marriage-based green card petitions.  Contact us to schedule an appointment to speak with one of our green card attorneys.

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