Lemuel A. Carlos, Attorney at Law
This article is Part TWO of a multi-part series of articles regarding the benefits and pitfalls of obtaining lawful permanent residence (a green card) through marriage to a US citizen.
Another commonly held belief is that no matter what, once an alien marries a US citizen that a green card will automatically be issued for the alien. This is far from the truth as several prerequisites must be met before the alien can qualify, one of the most basic being that the alien should have entered the country with a lawful inspection, that is that the foreign national entered the country legally.
Some examples of obvious “illegal entry” are when the alien or foreign national entered the United States by crossing the border on foot without a valid passport and visa. Although border security has become much tighter along the southern border, the “coyote” industry, the nickname given for persons engaged in the business of transporting people across the border illegally remains unabated. With heightened border security, the only change has been that the cost that these human traffickers are charging has become astronomical. Someone who has entered the country in this way will be in for a very rude and disappointing awakening once they file for a green card through their marriage to a US citizen only to find that they are inadmissible and therefore ineligible for a green card after all.
Sneaking into the country is not the only method of entering illegally and therefore not having a valid entry with inspection. So-called crewmen or persons who enter the country in transit either by being flight attendants on airlines during stopovers at US airports or more commonly members of crews of cruise ships or commercial vessels enter the country on transit visas – “D visas” or “C visas”. Although these persons had valid legal permission to enter the United States, they are not considered to have been lawfully admitted and inspected for purposes of adjustment of status through their US citizen spouse.
One final category of individuals that are precluded from adjusting status through their marriage to a US citizen are persons who entered the country on a K visa (fiancé visa) but did not marry their fiancé and instead fell in love with someone else who is also a US citizen. This class of individuals is also considered inadmissible and have the same status as those that may have crossed the border illegally without inspection.
The bottom line is if you are thinking of adjusting your status and getting your green card through your US citizen husband or wife, you should ascertain how they initially entered the country. Persons entering the country legally will generally have a valid passport. Inside their passport they will have a US visa, this can be in the form of a visitor visa, temporary worker visa or student visa just to name a few of the more commonly issued visas. People coming from Mexico often will have what is known as a Border Crosser Card. This is also evidence of a lawful inspection or valid entry. Be aware though that persons from Canada or Europe or some other countries will not have a visa as they are part of the visa waiver program and do not require one upon entering. They will however and should have a stamp in their passport showing when and where they entered the United States and this will satisfy the requirement for a valid lawful entry. Most persons entering legally by air will also have what is known as an I-94 record. In the past these were paper issued however now they are electronically documented online and can be downloaded to prove a lawful entry and inspection.
To sum it up, if you are thinking of getting your green card through your US citizen spouse, make sure to know how and by what manner they entered the country. Stay tuned for our next segment on getting your green card through marriage.
If you are curious about how this may apply to you specifically, please feel free to contact our office at (480) 355-4245 and make an appointment for a consultation. We look forward to hearing from you!