Choosing between Adjustment of Status, Consular Processing, or Fiancé Visa

Love knows no boundaries, and in an era where love transcends borders, binational relationships have become increasingly common. This has led to a rise in couples from different nationalities seeking ways to unite in the United States under secure legal status. This guide aims to shed light on the various green card pathways available to couples before they tie the knot, particularly when one partner is a U.S. citizen and the other is a foreign national residing in the U.S. It's important to note that these options apply regardless of gender or whether the immigrant partner is male or female. 

Love in the Age of Immigration

As an attorney skilled in family-based US immigration and nationality law, I’ve seen numerous international couples eager to start their shared life in the U.S. However, navigating the green card process requires more than just a deep connection between the couple. Missteps in understanding and executing immigration procedures can hinder their path to living together in the U.S.

For this discussion, we're focusing on couples who are yet to marry, where the foreign partner is living in the U.S., considering their entry method and duration of stay. 

Entry and Stay: Critical Factors in Pre-Marital Green Card Cases

Numerous couples in this situation seek advice on converting their relationship into a legally recognized marriage while adhering to U.S. immigration laws. The route taken depends largely on the foreign national's entry and stay in the U.S.:

• The foreign national lawfully entered the U.S. and is still within the visa period.

• The foreign national lawfully entered but now has an expired visa.

• The foreign national entered the U.S. without formal authorization.

• The foreign national’s intent when entering the U.S.

Scenario 1: Immigrant Entered Lawfully and Visa Is Valid

In this scenario, the immigrant partner entered the United States legally and is still within the validity period of their non-immigrant visa. They can pursue adjustment of status, provided there is no visa fraud involved. This means they must have adhered to the purpose they declared when entering the U.S. (honest intent and no misrepresentations at entry). If they entered as tourists, they must have genuinely visited as tourists. Once married, the immigrant can proceed with an Adjustment of Status for permanent residence at a local immigration office. Alternatively, they could marry in the immigrant's home country and process their permanent residence application abroad through consular processing. The former takes about on year, the latter takes about two years.

Scenario 2: Immigrant Entered Lawfully but Visa Has Expired (Overstay)

In this case, the immigrant entered legally but overstayed their visa. They may still be eligible for adjustment of status in the U.S. upon marriage, as long as there are no other issues such as visa fraud. However, if the immigrant returns to their home country, the duration of their stay in the U.S. beyond the authorized period becomes crucial, unless they traveled abroad with an approved advance parole. If they have overstayed by more than 180 days, they may need to apply for a waiver to re-enter the U.S. This waiver, known as a 601 waiver, can be challenging to obtain.

Scenario 3: Immigrant Entered Without Permission

For couples where the immigrant partner entered the U.S. without permission, the options are more limited. In most cases, adjustment of status in the U.S. is not possible. An exception may exist if an immigrant petition was filed on their behalf by a U.S. citizen or lawful permanent resident in the past and was approved. This could potentially allow the immigrant to adjust their status in the U.S. under certain conditions.

Conclusion: Choosing between Adjustment of Status, Consular Processing, or Fiancé Visa

In summary, the options available to unmarried binational couples depend on the foreign partner's entry and residence history in the U.S. Some may be able to adjust their status within the States, while others might need to pursue consular processing or fiancé visa pathways, often involving waivers for overstays or unauthorized entries.

Ultimately, the success of gaining permanent residence hinges on the specifics of each couple’s situation. Timing is also an important factor as there are rules such as the 90 day rule that must be navigated safely to make sure that intent doesn’t come into question and lead to greater scrutiny than is necessary. Those contemplating marriage should carefully consider their options to ensure a successful union in both love and legal status. Immigration can be a complex journey, but with the right approach and guidance, love can indeed conquer borders.

Should you or your loved one have any questions or need representation, please do not hesitate to call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for an immigration consultation. We have represented many clients with successful results even with the most difficult set of facts.