As a U.S. citizen or permanent resident, you're free to marry a foreign national or non-citizen immigrant - but you'll need to consider immigration laws to move your new spouse to the U.S. permanently.
If you, as a United States citizen, decide to marry a person from another country, you probably have questions about that person's rights under the U.S. immigration laws. In particular, you might be curious about helping your fiancé or spouse to receive a U.S. green card (lawful permanent residence). Some of the more common questions are addressed below.
Is It Legal to Marry a Non-U.S. Citizen?
Yes, you can marry anyone you like, unless it happens to violate local laws. Some U.S. states, for example, don't recognize a marriage between close family members or people under a certain age. But such situations are rare. The person's immigration status (legal or not) has no bearing on whether your marriage will be recognized as legal.
Can I Marry My Gay or Lesbian Partner (of the Same Sex)?
Yes, as of 2013, when the U.S. Supreme Court overturned a piece of federal law called the Defense of Marriage Act (DOMA), same-sex marriages are treated like any other marriage for federal immigration law purposes. But you will still need to make sure that gay marriage is legally recognized under the local laws of wherever your wedding took place. This should not be a problem within the United States, since the U.S. Supreme Court ruled in Obergefell v. Hodges that no state may ban same-sex marriage.
You will need to present a government-issued certificate of your marriage as part of the immigrant's application for U.S. lawful permanent residence (a green card).
Will My Immigrant Spouse Become a U.S. Citizen Automatically?
Sorry, but no. An immigrant who marries a U.S. citizen must apply for a green card (U.S. permanent residence). This is a long process involving many forms and documents. Any immigrant can be refused entry if they're found to be inadmissible, perhaps because of a medical problem, criminal history, past immigration violations, or the U.S. immigration authorities' belief that the marriage is not bona fide, but merely a fraud to get a green card.
After successfully obtaining a green card, the immigrant spouse can, after three years as a permanent resident, apply for U.S. citizenship. (This assumes that you're still married and living together when the immigrant applies. If not, the waiting period changes to five years.)
We're Not Married Yet: How Can My Fiancé Get a Visa to Come to the U.S. for Our Wedding?
A fiancé (K-1) visa grants permission to a non-U.S. citizen who is engaged to marry a U.S. citizen to enter the United States for the purpose of getting married. In order for your fiancé to get a K-1 visa, you will need to file a petition on Form I-129F with U.S. Citizenship and Immigration Services (USCIS).
If the petition is approved it will be forwarded to the U.S. consulate in the immigrant's home country for review. An interview with the applicant will be scheduled to take place at the consulate.
If all goes well at the interview, the visa (K-1) will be issued. Once the fiancé visa is issued, the immigrant has six months in which to use it to enter the U.S., and then another 90 days in which to get married.
It's best to get married early on if the immigrant wishes to apply to adjust status (get a green card) based on your marriage. That's because you'll need an official government certificate proving the marriage in order to submit with the adjustment of status application.
To learn more about the K-1 visa, see the eligibility requirements and overview of the process.
Are There Any Regulations About Our Finances and Income Levels?
Yes, the immigration law of 1996 outlines financial requirements for U.S. citizens who marry non-U.S. citizens who will apply for a green card. The U.S. citizen will need to fill out a Form I-864 Affidavit of Support, which proves the ability to support the immigrant at a level above the U.S. Poverty Guidelines. In fact, the citizen will need to promise the U.S. government to support the non-U.S. spouse for approximately ten years; an obligation that continues even after a divorce.
If the U.S. citizen doesn't have enough income and assets to support the immigrant at the required level, you might need to find a household member or other person in the U.S. to promise support. The immigrant's own assets can be counted, as well. But it won't help for the immigrant to get a job offer in the United States.
What If My Spouse Overstayed a Visa or Is "Out of Status"?
The process of helping a spouse immigrate to the U.S. is much easier for citizens than green card holders. That's partly because a visa is immediately available to the spouse of a citizen (who is an "immediate relative," in immigration law terms).
The combination of your status as a U.S. citizen and the fact that your spouse entered the U.S. with inspection (on a visa) as opposed to having crossed the border or otherwise evaded inspection by immigration officials, gives your spouse an important procedural right: to "adjust status" in the U.S., that is, to file a green card application at an office of U.S. Citizenship and Immigration Services (USCIS) and attend the required interview at a local USCIS office. All of this can be done regardless of the length of time the visa was expired, and without leaving the U.S. for a U.S. consulate. (In fact, you should avoid at all costs having your spouse leave the U.S. until receiving the green card, for reasons of the "three- and ten-year time bars described next.)
Contrast that with the situation faced by spouses of lawful permanent residents. They are able to start the immigration process as soon they're married, by filing USCIS Form I-130, but that typically only puts the foreign-born spouse on a waiting list. Years could then go by (though not always), during which the foreign-born spouse will be accruing "unlawful presence" in the United States and could be picked up and deported at any time.
Worse yet, when the wait (if any) is over and it's time to apply for a green card, the immigrating spouse will NOT be able to adjust status, but will have to leave the U.S. to attend an interview at a U.S. consulate. There, as punishment for any time over six months spent in the U.S. unlawfully, the spouse can be barred from return for three or ten years.
What Forms Do I Need to Complete for My Spouse's Green Card Application?
That's a complicated question, the answer to which depends on various factors such as whether you're married yet, whether the immigrant lives in the U.S. or overseas, and if the immigrant lives in the U.S., whether they're actually eligible to use the procedure known as adjustment of status.
You can count on filling out several forms, starting with a visa petition on Form I-129F for the K-1, or I-130 for spouses (both filed by the U.S. citizen). You might want to consult an immigration lawyer to help you determine the best way to proceed.
Should I See a Lawyer?
If you're confused or intimidated by the information above, you've probably already got an idea of why contacting an immigration attorney might be a good idea. Immigration laws are notoriously complicated, and the application procedures involve a forest of paperwork and arcane rules.
The immigration attorney can help you:
- figure out your spouse's basic eligibility for a visa or green card
- make sure some bit of history or problem of status won't impact their right to apply for the green card
- prepare the immigration forms and gather the correct documents
- prove the legitimacy of your relationship and marriage, and
- attend your immigration interview(s).
Unlike some types of attorneys, immigration attorneys often charge flat fees for basic services such as assistance with obtaining a marriage-based green card. That means you won't have to worry that the hours will tick by and you'll end up paying a million dollars in legal fees. Instead, you can price compare at the outset.
Of course, that doesn't mean you should go with the cheapest attorney you find. Make sure you sign up with an actual attorney (not a "notary public" for example), who is experienced in these matters and who you're comfortable working with.
See our section on Using an Immigration Lawyer to learn more about finding, choosing, and paying an attorney.