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When someone receives a green card based on marriage to a U.S. citizen, it is called “conditional residency” for the first two years. In order to remove the “conditional” title, thereby making it “permanent,” both spouses must jointly petition to remove the condition three months before the second year anniversary of when the green card was issued. Stated differently, the petition must be filed no earlier than 21 months (but no later than 24 months) after the green card was approved. Once the petition is approved, the condition is dropped and applicant becomes a permanent resident.

But what happens if the couple divorces before the condition is removed? Can the green card holder still become a permanent resident? The answer is yes. If a couple divorces before the conditional residency is removed, the green card holder can apply for a waiver of the requirement to file jointly. You will need to show that the you entered into the marriage in good faith and not to defraud the government. If you are separated but the divorce is not finalized,, you can file the waiver request and the USCIS will issue a request for evidence of the divorce decree once the dissolution proceedings are finalized. You will continue to be allowed to work under your green card until a decision has been made with respect to the waiver.

Cedric M. Shen is a U.S. immigration attorney and Canadian immigration consultant. He is the founding attorney at Maximilian Law Inc., a U.S. & Canadian immigration law firm with offices in Los Angeles and Vancouver.
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www.maxlawinc.com

Congratulations! You just married, or are about to be married to an American citizen. This means you are one step closer to obtaining permanent residency in the United States – also known as a green card. Spouses of United States citizens are considered “immediate relatives,” which means they are immediately eligible for a green card without having to wait for one to become available. In legalese, this means that the foreign national’s priority date is current. However, getting a green card requires consideration of a few things.

Consular processing v. adjustment of status

Consular processing is the process in which the United States citizen spouse files a petition to sponsor the foreign spouse from within the United States. Once the petition is approved, the foreign spouse will be interviewed at the United States consulate abroad and then issued permanent residency papers, thereby allowing him/her to move to the United States.

Adjustment of status applies to foreign spouses who are currently in the United States, and who wish to adjust their current immigration status to that of permanent residency.

I’m currently married to a U.S. citizen and outside the United States

Most foreign spouses outside the United States will apply for a green card from abroad through consular processing. This often means that the foreign spouse has to remain abroad during the pendency of the application – thereby resulting in prolonged periods of separation from the United States citizen spouse.

To minimize separation time, the United States citizen spouse can travel to be with the foreign spouse abroad during the pendency of the application. The foreign spouse can also apply for a K-3 visa, which is intended to shorten the physical separation between the spouses by having the option to enter the United States to await approval of the immigrant visa petition.

The foreign spouse may also attempt to enter the United States on a temporary non-immigrant visa and apply for a green card through adjustment of status. For example, a foreign spouse may have a job offer from a United States employer and enter under an H-1B work visa. Once in the United States, the foreign spouse will adjust his/her status from H-1B to permanent residency.

Preconceived intent

However, entering the United States on a non-immigrant visa such as a visitor visa (B-2) could result in a finding of preconceived intent when filing for adjustment of status. Preconceived intent means that there is evidence that the foreign spouse had intent to permanently immigrate to the United States at the time he/she entered on a temporary visa. Such a finding could result in a denial of permanent residency. While preconceived intent can be rebutted, foreign spouses should nevertheless be careful if electing to enter the United States on a temporary visa.

I’m currently engaged/unmarried and outside the United States

If you are outside the United States and not yet married, you have a few option options: 1) get married abroad and apply for your green card from abroad through consular processing; 2) enter the United States under a fiancé visa (K-1), get married in the United States, and then apply for adjustment of status; or 3) enter the United States under a non-immigrant visa and then adjust your status, provided that there are no preconceived intent issues.

If you are engaged, the United States citizen can file a petition for alien fiancé to allow the foreign spouse to enter the United States. The couple will have 90 days to get married, after which the foreign spouse can apply for adjustment of status.

If the foreign citizen enters the United States under a non-immigrant visa, such as a visitor or a work visa, he/she may still be able to adjust to permanent residency after the marriage provided that there are no preconceived intent issues.

I’m currently married and in the United States

If the foreign citizen is legally in the United States (i.e., visitor visa, student visa, work visa, etc.) and married to a United States citizen, the United States spouse can file a petition for alien relative while the foreign spouse concurrently files for adjustment of status.

Documented v. undocumented foreign spouse

If the foreign spouse had entered the United States legally (entered with inspection) but overstayed his/her visa, then he/she can still file for adjustment of status. However, if the foreign spouse is undocumented and entered the United States without inspection, then he/she will not be eligible for adjustment of status. As a result of their status, undocumented spouses are subject to a ban from the United States for up to ten years before being eligible for a green card. In some cases, the foreign spouse may be eligible for a waiver of the ban.

Issues relating to the application

Prior to filing the necessary documents, the couple should be aware of a few prerequisites. First, the foreign spouse will have to undergo a medical exam and a criminal background check. Adverse health conditions or a criminal history may render the foreign spouse inadmissible. Potential applicants should discuss all medical and criminal history issues with their attorneys prior to filing.

In addition, the United States citizen spouse must sign an affidavit of support indicating that he/she is willing and able to support the foreign spouse financially. To do so, the United States citizen spouse must meet a certain income level as established by the USCIS (presently $18,912.00 for a household of two). If the United States citizen spouse is unable to meet this income requirement, the couple may use a joint sponsor who does. The joint sponsor does not have to be related to the couple.

After the documentation is submitted, the couple will be asked by the USCIS to attend an interview, at which time the officer will asses whether the marriage is legitimate and bona fide. There is no checklist of questions that are asked at the interview. Contrary to popular belief, the couple is not always sequestered and interrogated in separate rooms about what the other spouse had for breakfast that morning. The interview is informal, often taking place in a small office, and may last anywhere from five minutes to an hour.

Two-year conditional residency

Once the green card is approved, the foreign spouse’s status is adjusted to conditional permanent residency. This status confers all of the rights and benefits of permanent residency, with the caveat that both spouses jointly file to remove the condition before the second year anniversary of receiving conditional residency. Once the condition is removed, the foreign spouse becomes a permanent resident.

Naturalization

Unlike those who obtained permanent residency through employment or investment based green cards, marriage-based green card holders are eligible to naturalize as United States citizens after three years of being a permanent resident.

Learn more about marriage-based green cards.

Maximilian Law Inc. is proud to announce that it received its first approval of a green card for its clients based on a same sex marriage petition. In June 2013, the Supreme Court struck down key provisions of the Defense of Marriage Act (DOMA), thereby allowing homosexuals to sponsor their partner spouses for U.S. permanent residency.

“I have been in the United States for the last 24 years as an out of status immigrant. I am proud to say that as of October 29, 2013, I am officially a Legal Resident. It’s been a long road and I have Cedric Shen of Maximilian Law to thank. I have been with my wife for almost seven years. But we never had the same rights as heterosexual couples until the monumental striking down of DOMA by the Supreme Court. Cedric was so helpful even prior to the laws changing. His vast knowledge of immigration laws made me feel more at ease during such a stressful process. He made the process easy and simple to understand. He answered all of our questions thoroughly and always responded with communication quickly. He is simply the best! I can’t say enough praises about Cedric! We are truly blessed to have found him!” – S.S. & J.B.

As an immigration attorney with a substantial number of Canadian clients, I am often asked what happens to their healthcare benefits once they leave their respective provinces and move to the United States. The answer depends on several factors, including: which province they were residing in, how long they plan to remain in the United States, and the purpose of their move (temporary visit, studying, working, permanent move, etc.).

For example, a Canadian residing in British Columbia who studies in the U.S. full-time may be eligible for continued health benefits so long as she returns to B.C. when her studies are completed. On the other hand, a B.C. resident moving outside of Canada permanently could lose her health care benefits at the end of the month that she left.

Before moving to the United States, be sure to research whether you are entitled to continuing coverage under your provincial health care plan.  If you are visiting temporarily, you may want to consider purchasing short-term travel insurance such those offered through Blue Cross.  If not, you should be prepared to secure health insurance in the United States – whether it be through your employer’s plan, spouse’s plan, or purchasing your own plan.  Click on your home province or territory to learn more about health care coverage when moving to the United States:

British Columbia
Alberta
Saskatchewan
Manitoba
Ontario
Quebec
Newfoundland and Labrador
Prince Edward Island
Nova Scotia
New Brunswick
Yukon Territories
Northwest Territories
Nunavut

The North American Free Trade Agreement (NAFTA) between Canada, U.S. and Mexico created a work visa category known as the TN visa. Under this category, Canadian and Mexican citizens can enter the United States to work temporarily in a professional occupation listed in Appendix 1603.D.1 of the North American Free Trade Agreement.

Education v. Work Experience

While most of the occupations under NAFTA require the applicant to possess at least a four-year bachelor’s degree, management consultants may qualify if they possess at least five years of work experience in the intended occupational field. Specifically, an applicant for a management consultant TN visa must possess a “Baccalaureate or Licenciatura Degree; or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement.” In other words, to qualify as a Management Consultant under a TN visa, the applicant must have either a bachelor’s degree (or higher) or five years of work experience, in the field he/she is being retained to perform consulting services in the United States.

Example: A Canadian citizen with a two-year college diploma and eight years of full-time IT work experience has been retained by a U.S. technology company to provide consulting services. She would be eligible for a TN visa as a management consultant based on her work experience despite the fact that she does not have a bachelor’s degree. If she has a bachelor’s degree in Psychology and three years of full-time IT work experience, she would not qualify because her degree is unrelated to the field in which she is being retained to perform services, and she does not have five years of relevant IT work experience.

As evidenced in the example, a primary benefit to the TN management consultant visa is that the intended field of employment does not have to fall within one of the occupations listed in Appendix 1603.D.1.

Employee v. Contractor

Instead of full or part-time employment, management consulting services are based on a temporary, periodic or fixed consulting nature. The key is that the management consultant is retained by the U.S. company as an outside, independent contractor. This means that the U.S. company should not directly employ the consultant as a salaried employee. Rather, there should be a written agreement between the company and the consultant that clearly outlines the scope of services to be performed, the method of compensation, and the anticipated duration of services. In the alternative, the U.S. company may contract with a Canadian company to provide consultation services. In these situations, the Canadian employees may enter the U.S. on TN management consultant visas to perform services for the U.S. company so long as they are compensated by their Canadian employers and not by the U.S. company.

Duration

TN visas may be issued for up to three years and are renewable indefinitely. However, since consulting services are usually of a fixed duration, TN visas for management consultants are often issued only for the duration outlined in the services agreement. Canadians and Mexicans are permitted to have multiple TN visas, so consultants may perform services for more than one U.S. company at a time so long as he/she obtains an appropriate TN visa for each project or agreement.

Learn more about the TN visa for Canadians and Mexicans.