My boyfriend and I have a long-distance relationship for a while now. I visit him in Japan, and he visits me in New York, but we are separated by a huge distance. I want to propose to him so he can live with me here in New York. My question is, if I marry him, what happens with his status? Does he become an illegal immigrant after his visa expires, or does he obtain legal "residency" status in the US?
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3The process for claiming permanent residency after marriage is fairly complicated and not automatic (and also costs near $1500 to complete). You really should talk to an immigration attorney about all the details so they can help you.– animuson ♦Commented Apr 7, 2018 at 16:13
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@animuson as I understand it a straightforward spouse petition in the US is something that many people can reasonably undertake without involving a lawyer.– phoogCommented Apr 7, 2018 at 17:00
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@phoog I'm not saying they need an attorney for the entire process, but I wouldn't call a list of like 10+ forms and other info that have to be submitted straightforward. A consultation with someone with experience can make sure they fill out all the correct forms for their situation and submit things properly. Trying to go off broad advice from a vague question only opens the door to potential errors.– animuson ♦Commented Apr 7, 2018 at 17:09
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@animuson by straightforward I mean where there aren't complicating factors like a criminal history. Sure, there are lots of forms to fill out, but "time consuming" and "labor intensive" do not necessarily exclude "straightforward," at least in that sense. On the other hand, anyone who does not want to bother with acquiring at least a basic understanding of US immigration law should indeed engage a lawyer even if they have a very high tolerance for filling out application forms.– phoogCommented Apr 7, 2018 at 17:58
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@phoog I would not consider this to be straightforward and I am familiar with multiple cases in which screwing up a spouse or finance petition has caused serious hardship. The money for an immigration lawyer is worth it.– ohwillekeCommented Apr 8, 2018 at 19:08
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1 Answer
You may want to ask this on Expatriates. There are many questions there already on this topic, so have a look around.
Being married to a US citizen has no automatic impact on anyone's immigration status.
The first thing you should do is decide whether you will marry in the US or elsewhere. If you want to marry in the US, and your boyfriend is not in the US, he should apply for a K-1 fiancé visa. With that, he can enter the US, marry you within 90 days, and then apply to adjust his status to that of a permanent resident.
If you decide to marry in the US when he's already in the US, you can just get married and apply to adjust status, but you may need to prove that your decision to marry was reached after he entered the US, because entering on a B visa or with the VWP requires the intention not to stay indefinitely, so entering in either status with an intention to marry and remain could be taken as fraud.
If you decide to marry outside the US then he will need to apply at a US consulate for an immigrant visa.
As part of the process, whether adjustment of status or a visa application, you will file a petition for him to immigrate. The petition must be approved before the adjustment of status will be granted or the immigrant visa issued.
Once the adjustment is complete, or when he arrives in the US with his immigrant visa, your husband will be a permanent resident (also known as a green card holder).
It is important to note that if your boyfriend accrues any unlawful presence, he should remain in the country, marry you if you are not already married, and apply for adjustment of status. He will find it much harder to get an immigrant visa abroad than to adjust status, especially if he accrues more than 180 days of unlawful presence, in which case he would trigger an automatic ban for three or ten years by leaving the country.
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Also, if you don't have a finance visa, even if he has another kind of visa, don't claim to be engaged to be married until he is in the U.S., as being engaged changes his immigration visa eligibility status and would invalidate any other visa he currently has such as a tourist visa or a student visa or an H1-B visa. Commented Jun 6, 2018 at 19:58
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@ohwilleke how does being engaged invalidate a B visa, student visa, or H-1B visa? I'm especially puzzled by this assertion in the last case, since it is a dual-intent visa. But even for a B visa, being engaged to a US citizen is not a bar to eligibility. It might make it more difficult to overcome the presumption of immigrant intent, but it doesn't make it impossible to do so.– phoogCommented Jun 6, 2018 at 20:03
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I don't know the precise legal doctrine that causes this to happen, but I have witnessed it happen more than once in actual real world cases, causing fiances with otherwise valid visas to be detained in immigration detention for months. Commented Jun 6, 2018 at 20:04
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@ohwilleke I can then only imagine that it has something to do with immigrant intent, because there are certainly cases mentioned on Travel and/or Expatriates of people visiting the US while engaged to marry US citizens. The problem should in the first place only arise if there is an intention to marry and settle in the US (as there is here). A fiancé visa is not necessary, for example, for a foreigner to come to the US, marry a US citizen, and then leave. But to get in without a fiancé visa, it would be necessary to convince CBP that there is indeed a plan to leave.– phoogCommented Jun 6, 2018 at 20:10
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Could be. Also, often the law as it is enforced by CBP agents on the ground isn't an exact match to the law as it is written in books and in case law, and in the immigration context, where judicial review is extremely slow and due process is often marginal, the CBP agent's stance may be all that matters. Commented Jun 6, 2018 at 20:12