LOVE MARRIAGE TO A CITIZEN DOESN’T ALWAYS RESULT IN A GREEN CARD - Part 1

By Michael J. Gurfinkel Esq. 

Everyone knows that a good faith (love) marriage to a U.S. citizen is one of the fastest and easiest ways to get a green card. But not everyone is eligible or entitled to adjust status in the U.S., even if they marry a U.S. citizen. The following people would not be able to adjust status in the U.S. and/or obtain a green card, even though they are married to a U.S. citizen:

1. Aliens who: (a) entered the U.S. as crewmen; or (b) entered the U.S. without inspection (snuck across the border), UNLESS that person had previously secured the benefits of Section 245(i).

Section 245(i) was a law that originally expired on January 14, 1998, and was then extended to April 30, 2001. It enabled certain people to preserve their future ability to adjust status (be interviewed for a green card) in the U.S. even though they overstayed, worked without authorization, entered as crewmen, jumped ship, entered the U.S. without inspection (EWI), etc. A person is eligible for Section 245(i) if the following conditions were met under the original or the second version of Section 245(i):

Under Original Version of 245(i):

1. The person had a “properly filed” and “approvable when filed” family petition or labor certification filed on his/her behalf on or before January 14, 1998.

Under Second Version of 245(i):

1. The person had a “properly filed” and “approvable when filed” family petition or labor certification filed on his/her behalf between January 15, 1998 and April 30, 2001; and
2. The person was “physically present” in the U.S. on December 21, 2000.

(Note: There was no requirement that an alien be “physically present” in the U.S. to qualify under the original version.)

If the person secured 245(i) eligibility (by having a petition filed on or before the above deadlines), they are able to “ transfer” that 245(i) eligibility onto a newly filed petition by their U.S. citizen spouse, even though that new petition is filed long after the expiration date of Section 245(i). So, the only way that crewmen or people who entered without inspection can adjust status in the U.S. through a U.S. citizen spouse is if they had previously secured the benefits of Section 245(i).

2. People who entered the U.S. on a fiancée (K-1 visa), but did not marry and/or obtain a green card through the American who originally filed the K-1 petition.

If a person enters the U.S. on a fiancée (K-1) visa, and, for whatever reason, does not marry the U.S. citizen who petitioned him/her, but instead, later marries a different U.S. citizen, then by law, he/she is not eligible to adjust status in the U.S. through this marriage. The law states that anyone who enters on a fiancée visa cannot adjust status in the U.S. except through marriage to the U.S. citizen who originally filed the K-1 visa. This is the case even if the marriage to another American is truly for love, the couple has been married for many years, have children, etc.

3. People who were previously found to have entered into a “fixed marriage”.

The law provides that if a person has ever been determined to have entered into a fixed marriage (i.e. a marriage of convenience, for purposes of obtaining a green card), then that person is subject to a lifetime ban, and no future petition can be approved on his/her behalf. Thus, if a person had entered into a marriage of convenience, and the U.S. Citizenship and Immigration Service (formerly INS) determined that it was a fixed marriage, then even if, years later, he/she finds true love with another U.S. citizen, she/she will not be able to obtain a green card, whether processed inside or outside the U.S.

As you can see, not everyone who marries a citizen would be eligible to obtain a green card. That is why it is important that if you are seeking any kind of immigration benefit, you should consult with a reputable attorney, who can analyze your situation and determine your eligibility for the benefits sought. Sometimes, there may be a chance, but you don’t want to apply for something that you are not entitled to and “rock the boat”, resulting in your ultimately being deported/removed. In a future article, I will discuss other people who also would not be eligible for a green card, even if they marry and are petitioned by a U.S. citizen spouse.