One of the “easiest” ways to become a legal resident of the United States is through lawful marriage to an American citizen. By “easiest,” we mean to say the process of obtaining a K-1 fiancé or fiancée visa, which falls under the non-immigrant visa category, isn’t as convoluted when compared to other immigrant petitions. The K-1 visa and subsequent adjustment of status required to get a green card are more streamlined than the IR-1 and CR-1 visa processes, which must be followed when a U.S. citizen marries a foreigner overseas. Even though we tend to think about the marriage bond as being very strong, it shouldn’t lead us to believe it would prevent or stop deportation.
Marriage & Civil Status
The laws and rules that outline deportation and removal of foreigners from the U.S. don’t take into consideration marital status. The status of immigrants in the U.S. can be boiled down to admissible and documented. Neither of these designations refers to civil status. Being found to be inadmissible or becoming an undocumented immigrant would entail a risk of deportation whether you’re married to a U.S. citizen or not.
Legal Strategies for Foreign Spouses
Case adjudicators from U.S. Citizenship and Immigration Services (USCIS) can recommend deportation for various reasons, but they also have to shoulder the burden of proof if the foreigner exercises his or her right to due process. Let’s say a Malaysian man married to an American citizen is found to be inadmissible after the wedding but before the immigration interview with his spouse. A defense strategy in this case would be to question how USCIS determined the foreign spouse to be admissible when granting the K-1 visa. What changed in the months between the time of entry and after the wedding? These are questions a seasoned immigration attorney can bring up in court, and it would be up to USCIS adjudicators to answer without ambiguity.
The Role of the Courts
It’s always easier for an immigration court to remove a foreigner who doesn’t have ties to the U.S. than one who is an immediate relative, such as the spouse of an American citizen, but this is hardly a solid defense. When we look at cases involving foreigners who entered the U.S. illegally or overstayed their visas prior to getting married to American citizens, we see the courts aren’t disinclined to dismiss deportation proceedings and call off removal, but if the foreign spouse is ordered to return to his or her country of origin and resume the process from overseas, a San Diego immigration attorney or immigration law firm would have to pursue a waiver for reentry, which can sometimes be difficult.
With all the above in mind, it should be noted that not all deportation cases are the same. A foreigner who has been granted bond during a deportation hearing could get married to an American citizen and request adjustment of status down the line, but it would be up to the court to not only determine admissibility but also terminate the deportation complaint.
For more information on issues such as citizenship, naturalization, and family-based immigration, San Diego residents should reach out to the experienced immigration attorneys at KS Visa Law. Call us today at 858-874-0711 to schedule an appointment.