Green Card Through Marriage
is when a foreign national becomes eligible to
live permanently in the USA, due to him or her being married to a US citizen. This occurs natually at the culmination of the Fiance Visa
process. A foreign fiancee is granted permission to enter the USA via a K1 Fiance Visa. If the marriage takes place within 90
days of arrival, the foreigner has the ability to apply for Adjustment of Status, to obtain her Green Card through marriage.
Next most common is the marriage of a US citizen to a foreigner who is resident outside the USA. The American spouse applies for a CR1 Spouse Visa for his foriegn born spouse. She eventually travels to the USA using the CR1 visa, and her Green Card is already granted, and will be provided without must additional petitioning
Finally there comes the situation where a foreign national is inside the borders of the USA, and has married a US citizen. He or she would be also eligible for their Green Card through marriage. Depending on the circumstances, and the visa which the alien entered the USA, would determine whether the alien must return to home country, and apply for the CR1 Visa, or could remain in the USA, apply for Adjustment of Status, and be granted the Green Card without need to depart the USA.
Often I am asked about what can be done, when an American marries a foreigner visiting the USA on a tourist, visa waiver, student or work visa.
In most cases the foreign spouse hopes to remain in the U.S. and apply for a green card based on marriage. In some situations, without leaving it is possible to obtain a green card. In other situations, is it highly unlikely, or simply impossible to obtain the green card without leaving the USA.
Getting married is not an issue. There are no restrictions regarding the 'immigration status' of someone to marry. As long as you follow the rules and procedures in your state, (or Las Vegas) you can marry.
The real issue is: whether your new spouse will be allowed to remain in the USA, appling for permanent residency, or must leave the USA, and wait in her home country pending approval of a Spousal visa.
Basically, the visa that is designed to allow your fiancee to enter the USA for the purpose of marriage, and with permission to remain and apply for permanent residence, is the K1 Fiancee Visa. This is the only visa designed for this purpose.
If the foreign enters the USA after traveling on another visa, two issues apply. 1. Intent 2. Restrictions on the visa used.
Intent to remain
Lets say a tourist travels to USA for holiday, meets a new American friend, ( falls head over heels in love, and after a few weeks marries. As there actually was no advance contact between the couple, and no apparent 'intent' to use the tourist visa to REMAIN in the USA, immigration will probably believe that this is a legitimate case was no actual intent, and allow the foreign spouse, to remain, apply for her green card, and be granted it, all without leaving the USA.
Conversely an American's girlfriend after corresponding for a year , is able to obtain a tourist visa, arrives in the USA and marries after a week. Immigration will be unlikely to believe there was no intent to remain in the USA, so most likely, her green card application would be denied, and she would be asked to return home.
Some visas, regardless of intent, won't permit the foreigner to remain to obtain the green card. Visitors on Visa Waiver are not permitted to remain, and must return to home country to await spousal visa approval. Some student visas include provisions that the student, must return to home country for 2 years, NO MATTER WHAT.
If you have an EXISTING relationship, AND are considering marriage, the correct, direct and reliable immigration procedures to follow are to apply for a Fiance Visa, or marry (here or there) then apply for a CR1 visa while she waits in home country.
Read this article on what can happen when the correct and direct procedures are not followed Green Card through marriage problems