SPECIAL SECTON: CLARITY
Perhaps the most romantic adventure we can embark on is to plan a life with someone else. Then, it’s up to us to keep day-to-day exciting. It’s what makes us glow a little brighter, smile a little longer and sigh in a loving way. So how do romance and marriage play a role in immigration?
Well, let’s begin with the fact that marriage is a serious commitment. Before contemplating an immigration solution by marriage to a U.S. citizen, a couple should be living together in a genuine marriage, co-mingling their funds and other important matters for a few years to obtain and keep a resident status. The U.S. citizen should be fully aware and prepared for the fact that the affidavit of support — signed by the U.S. citizen to attest to their ability to support the foreign born spouse — is not terminated by a divorce. It is enforced until the foreign-born spouse becomes a U.S. citizen.
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There is a fair amount of paperwork and presentation of evidence materials required, but it is not generally a difficult process. Many people don’t have the patience to follow through with all the tedious details involved though. Often, U.S. citizens can become infuriated with the demands and delays, especially if their foreign-born spouse lives in another country and cannot come to the U.S. In those cases, it is prudent to involve an attorney.
Fortunately for true love, U.S. immigration law allows marriage to a U.S. citizen to remove almost all barriers and sanctions commonly imposed by immigration laws. Sadly this has also led to a much-abused “immigration solution.” Many of us have seen the humorous side of this scenario as it played out in the 1990s film Green Card, but we rarely hear the true horrors of a marriage scam. You can orchestrate or pretend there is a bone fide marriage, but no one can guarantee that under the pressure of an interview with USCIS, the truth will not rear its ugly head. USCIS officers are particularly adept at knowing how to grill people.
The biggest problem with failing the “test,” as some people call it, is that the foreigner gets deported and the U.S. citizen goes to jail. Not only does the foreigner get deported, but there is no solution, relief or way around the finality of the decision.
If a couple has been married for less than two years, the foreign-born spouse is given a conditional residence. Many people believe that they cannot get a divorce prior to removing the conditional residence or they will lose their status. That is not true. A bad marriage is a bad marriage, and you can get out. A U.S. citizen is not entitled to intimidate his or her spouse. The spouse would just need to document that the marriage took place in good faith.
To remove a condition, you must be married at the time of the interview or you have to be fully divorced. A mere separation does not allow you to remove the condition. To remove the condition after a divorce the foreign-born spouse must prove the marriage was for love and not for any other interest. If the foreign-born spouse has been beaten or mistreated, they can file for residency without the U.S. citizen, but they must still be married.
Antonia Canero Immigration Lawyer Miami-Dade
Corporate Partner Member of the Miami-Dade Gay & Lesbian Chamber of Commerce