Marriage Visas Fiancé K-1/K-3 Visas and Green Card
- I Plan to Get Married. What I Can Do Before Marriage to Help The Green Card Visa Process?
Generally before you become married, you are not able to file any marriage-based petitions except for the K-1 fiancé visa petition. However, we advise most of our clients to start as soon as possible to obtain documents that are likely to be needed from a foreign country. Some of these documents are typically difficult and time consuming to procure, especially foreign birth certificates or registrations.
For those aliens whose births were not registered, or whose birth registration is lost, special procedures are necessary to obtain the affidavits and substitute documentation from the foreign local government that may satisfy the requirement. In addition, all documents in a foreign language must be provided along with certified translations. Those planning to submit marriage based visa petitions may make the process faster if they obtain foreign documents with certified translations ahead of time. Such will typically include birth certificates or registrations, divorce decrees, adoption records, school records, marriage certificates and such.
- I Am Married. What is Faster, the K-3 Spousal Visa or the Marriage Green Card?
The K-3 visa petition generally permits those married to US citizens to enter the US faster than if they had to wait for the entire green card process to be completed before entering. Note however, that upon entry with the K-3 visa, the spouse of the US citizen must still complete the green card process in the US. See Faqs for K-1 fiance/K-3 Visas.
- I Married an Abusive Spouse Who Refuses to Sign My Marriage Green Card Visa Papers. Can I Apply under VAWA?
Victims of spousal abuse, assault and/or battery may be able to self-sponsor for a green card. Where an abusive US citizen spouse refuses to support an application, the alien may be able to file the petition on his or her own behalf under the provisions of the Violence Against Women Act (VAWA). The application may be approved with or without the support of the abusive spouse. To qualify for self-sponsorship under VAWA, applicants must show the following:
- He/she is a spouse of a US citizen or Legal Permanent Resident (LPR);
- Entered into a good faith marriage;
- Has resided with US citizen or LPR;
- Has good moral character;
- Was battered or subjected to extreme mental cruelty by spouse OR is the parent of a child abused by USC or LPR spouse; and
- Has credible evidence to prove the items above.
Petitions under VAWA are filed using the Form I-360 at the Vermont Service Center and may also be filed by those who may have entered without inspection (EWIs), illegal aliens and those in removal or deportation proceedings.
- I Married an Illegal Alien, Can My Spouse Get a US Marriage Green Card Visa?
Illegal aliens may seek adjustment of status under section 245i if they qualify. Also, provisions of VAWA may permit those spouses that have been subjected to abuse to self-sponsor a VAWA adjustment of status application while in the US. Finally, illegal aliens married to US citizens may apply for a hardship waiver at the US embassy of their native country. Visit our Married to Illegal Aliens page for more information on the waiver for illegal aliens married to US citizens.
- I Married a US Citizen but Worked Illegally, Can I Get a Marriage Green Card Visa and Work Permit?
Aliens married to US citizens but have worked illegally may nevertheless apply for a green card, adjustment of status and work authorization. However, the income earned from illegal employment cannot be counted to meet the I-864 Affidavit of Support obligation. Aliens who have worked illegally should apply for work authorization at the earliest possible time to minimize the duration of unauthorized employment
- I Entered Legally but My Visa Expired, Can I Apply for a Marriage Green Card Visa And EAD Card?
Most aliens who entered legally with a visa whose visas subsequently expired may still apply for a green card, adjustment of status and work authorization if married to a US citizen. However, it is important to consult an experienced immigration attorney to review the facts and circumstances of the entry, the type of entry visa, and to confirm that adjustment of status application is appropriate and approvable.
- Can I Travel Outside the US While My Marriage Green Card Visa Is in Process?
Green card applicants who have applied for adjustment of status can only travel with permission from the USCIS. Aliens with pending adjustment of status applications must first apply for Advance Parole and may only travel upon approval of the application for advance parole. Such aliens must carry the approved Advance Parole application and present such upon re-entry. Those aliens on H-1B or H-4 visa status are not required to obtain advance parole. Such aliens may travel on the H visa. However, it is important to speak to an experience immigration attorney before traveling to ensure that current state of the law and that there are no special requirements that may apply to that alien.
Aliens who entered illegally and those that overstayed their visa may not qualify for advance parole and may not be permitted to return to the US after traveling abroad. Such aliens should consult an experienced immigration attorney before making any travel plans.
- Can I Apply for a Work Permit and Travel Document When I Submit My Marriage Green Card Application?
Yes, In fact our law firm routinely submits those at the same time for qualified applicants. You can submit an application for an EAD card as well as Advance Parole at the same time you submit the marriage green card application. It takes anywhere from 60 to 90 days to obtain USCIS approval for these.
- What Should I Expect at the USCIS Interview for My Marriage Green Card Application?
Generally, the USCIS examiner’s goal is to determine whether the couple is in a good faith marriage and sharing a joint life. The USCIS examiner typically asks questions about day-to-day life of the couple; where and how they met; whether friends, relatives and coworkers are aware of the marriage and joint life; and whether or not they have visited friends and family members as a couple. Examiners also review documents from the couple such as leases, bills, photographs, bank statements, credit card statements, and insurance policies to determine whether the claim of a joint life is supported by the documentation provided by the couple. In some instances, the couple will be separated and quizzed separately on different aspects of their daily life, home and activities.
The examiner generally does not rely on one or two factors alone. Instead, they review all of the facts of the situation together to reach a judgment whether they believe that the couple share a joint life.
- Will I Get the Green Card on the Day of the USCIS Marriage Interview?
In some cases, the examiner will approve the petition at the time of the interview. In may cases however, the examiner may first need to get approval from a supervisor, request additional documentation, or conduct additional research before the application is approved. Petitions are sometimes approved on the day of the interview where all of the necessary information has been obtained by the USCIS, the interviewing agent has authority to issue the final approval and no additional documentation is required from the couple prior to the approval. Where additional documentation or material is requested, the alien should cooperate with the USCIS examiner to arrange a mutually convenient time to provide the documents and information expeditiously.
- Must My Spouse Also Attend the Marriage Green Card Visa Interview with Me?
Yes. The USCIS typically requires that your spouse be present at the interview. If your spouse is unable to attend, it is good practice to explain the reasons in writing, submit supporting evidence and request that the interview be rescheduled so that your spouse may attend at a later date.
- After My Marriage Interview, USCIS Requested More Evidence to Prove Our Marriage. What can I do?
A typical request for additional evidence must be responded to in 30 or 84 days. It is important to review the amount of time within which to respond in order to provide ample time to do so. Review our checklist of items to show a good faith marriage. If you have already submitted all of the documentation that you have but the examiner is still not satisfied and is asking for more, it is advisable to seek the help of an experienced immigration attorney if you did not retain one already. The attorney is likely to interview the couple extensively to determine whether additional information can be obtained. The attorney may also collect sworn statements from friends, family, co-workers, landlords and others to submit to the USCIS.
- My Spouse Filed for Divorce While Our Marriage Visa Was In Process, Should I Go to the Interview?
This situation needs a thorough review of the case file before a recommendation should can be made. An experienced immigration attorney will likely review the entire application, the divorce decree, other visa options available to the alien and explore whether self-sponsorship is viable under the situation. Aliens in this situation need to consult an attorney as soon as possible while different options may still be available. It is important to note however that failure to appear for the interview will likely result in a rejection of the application
- My Spouse and I Do Not Have Enough Income for the I-864 Affidavit of Support. What Can We Do?
The sponsoring spouse is required to complete and submit an I-864 affidavit of support regardless of income. To meet the public charge requirement however, income from other family household members as well as the alien count in some instances. Those couples with less than the required income may ask household members and other relatives with verifiable income to provide sponsorship as joint sponsors. Joint sponsors must complete the I-864 form and submit the required income verification and tax returns. All of the income, when combined, must also exceed the poverty guidelines considering the number of dependents that they sponsors have.
- My Spouse Is a US Citizen, How Long is it Before I Qualify for Citizenship after I Get My Green Card?
Generally, those married to US citizens qualify for citizenship after 3 years. Please review our Citizenship/Naturalization Page for information on citizenship.
- How Long Does the Marriage Green Card Visa Process Take from Application to Approval?
This is typically difficult to predict because a lot of it depends on the workload of the USCIS. However, an estimate of 6 months to one year is fair. Sometimes, the process is completed sooner than six months. In other instances, it takes more than one year to complete. The difficulty in predicting the length of the processing time stems from the largely unpredictable schedule of the USCIS and its process. The USCIS is committed to reducing this backlog and the waiting period is likely to improve in the coming months and years.
- I Am a US Citizen with a Criminal Conviction, Can I Apply for a Marriage Visa for My alien Spouse?
Yes, you may apply for your alien spouse even though you have a criminal conviction
- I Am An Alien with a Criminal Conviction Married to a US Citizen, Can I Apply For a Green Card?
Most minor traffic offenses and parking tickets do not affect an alien’s ability to complete the green card process. Aliens convicted of certain crimes may or may not be able to obtain adjustment of status, depending on the nature of the conviction. More severe crimes and felonies may affect an alien’s ability to obtain or even retain his or her green card. Violent crimes and crimes involving fraud and moral turpitude may hurt an alien’s chances of obtaining permanent residence. Since the determination depends very much on the specific nature of the charge and conviction, Aliens with a conviction should obtain the entire criminal case file from the courthouse and set an appointment with an experienced immigration attorney who will review the facts and circumstances surrounding the conviction and render an opinion.
- I Am On J-1 Visa Married To a US Citizen, Must I get a J-1 Waiver Before Applying for a Green Card?
J-1 visa holders who are not subject to the 2 year foreign residence requirement do not need a waiver prior to seeking a change or adjustment of status. Those subject to the requirement must return to their home country to complete the 2 year foreign residency requirement or obtain a waiver of that requirement through various methods. Review our J-1 visa waiver options page.
- I Attended a Marriage Green Card Interview and My Application Was Denied, What Can I Do?
Depending on the reason for the denial, there are a couple of options. Generally, most denials can be appealed to the BIA, AAO or Federal court, depending on the reasons and how the denial came about. In some instances, an alien may be able to file a motion to reopen the case and for additional evidence or documentation to be submitted in support. If the case is reopened, it may be reviewed and approved based on the existing evidence and additional evidence submitted. In many instances, the alien is able to resubmit the entire application and pay the filing fees again. Where a petition is resubmitted, the alien would ensure that the missing information that resulted in the prior denial is addressed in the new petition so that another denial does not result.
- I Got My Green Card Through Marriage But Now Divorced, Can I Sponsor My New Alien Spouse?
An individual who obtained a green card through marriage to a US citizen is barred from applying for a new spouse for five (5) years unless he/she can show that the previous marriage was bonafide. As such, those evaluating this option must carefully weigh the risks and additional documentation that may be required before proceeding with a petition for a new spouse during the 5-year period.
- I Am a Legal Permanent Resident (LPR), Can I File For a Marriage Visa for My Alien Spouse?
Yes. However, your alien spouse will have to wait until a visa becomes available in the Family-based 2A classification before applying for a visa abroad or seeking adjustment of status if in the US. During the waiting period, the alien spouse is not permitted to remain or work in the US unless on another valid visa
- I Am a Legal Permanent Resident (LPR), Can I File a Fiancé K-1 Visa or The K-3 Visa for My Spouse?
No. The K-3 and K-1 visas are only available to those engaged to marry a US citizen and those already married to US citizens. LPRs cannot sponsor the K-1 or K-3 visa.
- I am A US Citizen or Permanent Resident (LPR) Married To An Undocumented Spouse, Who Entered Without Inspection, Or Has No Papers. Can Anything Be Done?
Those who entered [without inspection] are generally not eligible for adjustment of status. They are subject to the [3/10 year bar] and are thus required to return to their native country for 3 or 10 years (depending on the length of the unlawful presence) before becoming eligible to enter or stay in the US legally. There are 3 ways that affected aliens may attempt to gain permanent residency.
- First, the alien may attempt to adjust his or her status through [section 245(i)] where he/she filed a green card petition or labor certification petition prior to April 30, 2001.
- Second, the alien’s US citizen spouse may make an I-130 green card petition on behalf of the alien. The I-130 petition itself is not a visa and does not permit the alien to remain in the US. Upon approval however, the alien may apply for a green card at the appropriate US consulate in the alien’s native country. As part of the application, the alien may submit a request for a waiver of the [3/10 year bar]. The waiver application requires that the alien prove that absence from the US will result in extreme hardship for the alien’s US citizen spouse and/or family.
Such hardship may be based on physical and psychological illnesses in the family, financial and economic stresses, and other similar circumstances. The waiver application will typically require extensive documentation and support that show extreme hardship to the US citizen relative. Medical and psychological evaluations as well as documentation of the effect of such on the family will assist. The alien may also have to demonstrate good moral character. If the waiver application is approved, the alien will be granted permanent residency and may enter the US without the application of the 3/10 year bar. More...
- The third alternative for undocumented aliens is for the alien to depart the US and wait either 3 or 10 years and apply for a green card thereafter. This requires that the alien remain outside the US with or without his or her family.
- I Am A US Citizen Or Permanent Resident (LPR) and Filed a Marriage Green Card Visa Petition for My Spouse, How Do I Show The USCIS That Our Marriage Is Valid?
At the USCIS interview for marriage-based petitions, the USCIS officer questions both the husband and wife to make a determination whether the marriage is real. The officer also looks at the documentation submitted by the parties to determine whether the marriage seems to be real. In many instances, the USCIS officer will attempt to obtain documentation starting from the first months of marriage until the date of the interview. The USCIS officer will likely be impressed where the parties show apartment leases, bank accounts, pictures, assets and other documents dating back to the early months of marriage through the date of the interview. The more documentation that is provided, the more likely that the petition will be granted. Here is a list of documents that may be helpful in showing a joint life:
- Evidence of children born to marriage (birth certificate)
- Evidence of joint property (mortgage or lease contract)
- Joint income tax returns (filed together)
- Utility bills with both names reflecting your current address together (electric bills, water bills, phone bills)
- Evidence of joint finances (joint checking account, joint loans, bank statements, letter from bank)
- Evidence of joint purchases (automobiles, furniture, washer/dryer, refrigerator, etc.)
- Evidence of joint insurance policies (life, health, automobile, house)
- Wedding pictures / vacation pictures / holiday pictures of the husband and wife (and other family members if they were with you)
- Letters and other correspondences to one another (birthday cards, holiday cards, e-mails)
- Letters from family, friends, landlord, neighbors, etc, that could attest to marriage
- Documents if the wife took her husband’s last name (driver’s license, ID cards, ATM card, membership cards, i.e. health club or video stores)
One should start collecting such evidence throughout the months and years of marriage.
News Items on Marriage Visas
- USCIS Announces Changes to I-751 Petitions to Remove Conditions On Marriage Visas
USCIS plans to revise the filing instructions for the I-751 Petition to Remove Conditions on Residence. This will affect marriage-based green card visa petitions where the alien was granted 2-year conditional residence. Such aliens must petition to remove the conditions prior ro the expiration of the 2-year period. [Read The Entire I-751 Petition Changes]
- Guidelines to Reschedule An Immigration Visa Interview And Handling A Missed Visa Interview
Aliens who have appointments for visa interviews are generally expected to appear for the interview with their sponsors. This is especially important for green card interviews sponsored through marriage or other family member whose presence is typically required to prove a bona fide relationship. USCIS provides guidance on how to reschedule an immigration visa interview under certain circumstances. It also provides guidance handling situations where the applicant, petitioner, sponsor or beneficiary failed to appear for an Scheduled USCIS interview. [Read Guidance on a missed or rescheduled interviews..]
- Marriage Green Card Visas - Battered Spouses May File Without Abusive Spouse’s Support
The USCIS has issued a memorandum providing guidance for approving I-130/I-485 petitions submitted by aliens married to or in an abusive relationship with their U.S. citizen spouses. This April 21, 2008 memorandum explains that the Violence Against Women Act (VAWA) allows battered immigrants to petition for legal status on their own. In addition, victims of abuse may submit an I-360 petition for a special immigrant visa status. It also explains that such petitions may be approved even where the alien entered the U.S. without inspection. It essentially permits illegal aliens who are in such relationships to self-sponsor without relying on Section 245(I). It also explains the steps to take where a petition was previously denied because of illegal entry. [Read The Entire Marriage Visa Guidance For Self-Sponsorship]
- Marriage Visas/Green Cards - Illegal Aliens May Self-Sponsor Under VAWA
The USCIS issued a memorandum on April 11, 2008 clarifying that aliens who entered illegally or without inspection (EWI) may still apply for a green card under VAWA if married to a US citizen. This announcement makes it possible for those married are subject to spousal abuse to sponsor themselves for a green card whether or not they entered illegally, without inspection or have overstayed their visa. [Read entire memorandum].
- Marriage Visas & K1/K3 Visa Holders - Legal Rights Of Victims Of Spousal Violence Or Abuse
The USCIS has issued a memorandum regarding the legal rights of K-1 and K-3 visa applicants and others married to U.S. citizens. This memorandum addresses the rights of those subject to family or domestic violence or abuse in the hands of their U.S. citizen spouses. It explains that victims of domestic abuse may be able to self-sponsor for a marriage green card by filing an I-360 (VAWA) Petition as a Special Immigrant. It also explains self-sponsorship for the I-751 Petition to Remove Conditions without the assistance of the abusive spouse as well as the availability of child support payments in the event of a separation. [marriage-visa-k1-k3-visa-domestic]
- Citizens - Married to Illegal Aliens
Green Card/Permanent Residency Visa for Illegal Aliens Married to US Citizens Through Exceptional Hardship Waiver
US citizens married to illegal aliens (without papers) and those who entered the US without inspection (EWIs) face significant hurdles before they can obtain a visa or green card for their illegal alien spouse. In addition to meeting the requirements that all other applicants must obtain, these cases have additional filing requirements. The following are some options to be considered for illegal aliens married to US citizens.
Adjustment of Status Through Section 245i
245(I) permits those who previously filed a permanent residency or labor certification petition on or before April 30, 2001 to remain in the US and seek adjustment of status even if the previous green card application is not approved. Upon marriage to a US citizen, the affected illegal alien will submit an immediate relative petition as well as an I-485 adjustment of status application, pay a fine and proceed with the green card process while remaining in the US — [Section 245i overview]
I-601 US Citizen Spouse Hardship Waiver
Illegal aliens, EWIs, and those subject to the 3/10 year bars may apply for a green card if married to a US citizen through the hardship waiver process. The first step is to submit an I-130 immediate relative petition to a USCIS service center in the US. Upon approval and NVC processing, the alien would apply to complete the green card process at a consulate in his or her native country. As part of that application, the illegal alien will submit an I-601 request for a hardship waiver along with extensive documentation and evidence. The alien is not permitted to complete the process while in the US but must leave the country to do so.
The I-601 hardship waiver application requires the alien to prove that not permitting him to reenter the US will result in extreme hardship to his or her S citizen spouse. Extensive and detailed documentation is required to prove this equirement. Such evidence should include sworn statements from family members, friends and acquaintances, medical records, psychiatric/psychological records, school records, evidence of illness of family members, financial information and tax returns, letters from teachers, support letters from churches and community organizations, evidence of health and emotional problems that may result from the separation, and such other documentation. This waiver process may also be used for applications submitted by US citizen parents on behalf of their illegal child as well as applications by permanent residents on behalf of their illegal spouse or child. If approved, the green card application is granted and the alien is permitted to return to the US to assume permanent residency or green card status.
Due to the extensive nature of the documentation required for this process, it is important to consult an immigration attorney familiar with the law in this area. Our immigration attorneys are competent and can assist with questions or filing the application. A recent ruling by the [Administrative Appeals Office (AAO)] should also provide some guidance for reparing the I-601 hardship waiver application.
Please use our Contact Us form or call at 312 795-9110 to get more information
- I-751 Removal of Conditions For Marriage Green Card Visa
Marriage Visas, Family Visas, Joint Removal of Conditions, Waivers, Effect of Divorce Or Separation on I-751 Applications
I-751 Removal Of Conditions Those who obtained a green card through a marital relationship less than 2 years old are granted conditional residency for two years. The green card issued typically has an expiration date of two years. Within 90 days of the expiration of the two year period, the couple and dependents who received green cards must file a petition with the USCIS for removal of the conditions. The application and supporting documentation are filed using Form I-751.
Upon approval, the alien is then granted complete permanent residency. The application to remove the condition must be filed jointly by the couple along with documents showing a joint life. In some instances, those divorced, separated or in the process of doing so may file and request a waiver of the joint filing requirement.
USCIS has issued several memoranda dealing with policies and procedures in different situations including joint filing, availability of waivers, divorced couples, separated couples as well as those in the military:
Delegation of Authority to USCIS Service Center Directors to Deny Petitions
In a January 30, 2006 Memorandum, the USCIS granted the Service Centers authority to deny an I-751 if satisfied that the marriage was entered into for the purpose of evading US immigration laws. The Service Center is also directed to forward any fraudulent petitions to the Office of Fraud Detection and National Security (FDNS). The Service Centers may also forward petitions to the local USCIS office for an interview if an interview is likely to be useful. Read Entire Memo
Effect of Divorce/Separation on I-751 Petition-Additional Clarification
USCIS NSC Flash #19-2005, Revised Revision to NSC Flash #6-2005.
With USCIS NSC Flash #19-2005 issued on April 11, 2005, the USCIS clarified its position on how to file an I-751 petition when the parties are divorced or separated. In a nutshell, divorced aliens may file a separate petition and request a waiver. Those aliens separated but not divorced or who have initiated divorce proceedings which is not completed, may submit a joint petition to remove conditions. This memorandum provides USCIS’ updated position on the effect of a divorce or separation on I-751 petitions. [i-751-condition-nscflash19-2005] NSC Flash #18-2005, Revision to NSC Flash #6-2005.
These memoranda had been previously issued by the USCIS and were superceded by NSC Flash #19-2005 above. They contain USCIS’ position on I-751 petitions by those divorced, separated or in the process of doing so prior to the final revision above. NSC Flash #18-2005 was issued on March 30, 2005 and NSC Flash #6-2005 was issued before that on December 27, 2004. [Read Entire Memo i-751-condition-nscflash18-2005 Read Entire Memo i-751-condition-nscflash6-2005]
I-751 Filing A Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage
On April 10, 2003, the USCIS issued a memorandum on whether a conditional resident can file a waiver of the joint petitioning requirement on Form I-751 after the commencement of divorce or annulment but prior to final termination of the marriage. This memo instructs that a waiver may not be filed by those whose marriages have not reached complete termination. Read entire memo i-751-waiver-joint-filing-41003
Extension of Green Card Status for Conditional Residents with Pending Form I-751. Petition to Remove Conditions on Residence
A December 2, 2003 memorandum provides an automatic extension of an alien’s conditional green card status once a properly filed I-751 is received by the USCIS. The extension lasts until the USCIS makes a determination on the I-751 petition. This memo also authorizes that such aliens be given evidence of lawful status in the form of a 12-month I-551 stamp or I-94 showing conditional green card status. Read Entire Memo i-751-extend-status-12203
Military Service-Removal of Conditional Resident Status if Spouse is Serving Abroad in the U.S. Armed Forces as Part of Operation Enduring Freedom
A January 7, 2002 memorandum provides guidance for USCIS in adjudicating I-751 petitions to remove conditional status on residence when the conditional resident is married to a member of the US armed forces serving abroad as part of Operation Enduring Freedom. Read Entire memo i-751-condition-military-10702
- What are the qualifications for Citizenship/Naturalization?
To qualify for U.S. citizenship, an applicant must: have been a U.S. permanent resident for 5 years (3 years if applying based on marriage to a U.S. citizen), be a person of good moral character, be 18 years of age, meet the physical residence requirements for citizenship, pass the literacy, U.S. history and government tests.
- How long do I have to be physically present in the US in order to qualify for citizenship?
To qualify for citizenship, an applicant must not only be a U.S. permanent resident for the required time period, but must also demonstrate that he has maintained continuous U.S. residency for a certain period of time. For those applying based on marriage to a U.S. citizen, the requirement is 3 years of continuous residence in the U.S. Such applicants must also prove that they were physically present in the U.S. for at least half of that time (18 months).
For those applicants not applying based on marriage to a U.S. citizen, 5 years of continuous residence is required. Such applicants must also be physically present in the U.S. for at least half that time (30 months).
For all applicants, absences of six months or less from the U.S. do not break an applicant’s continuous residence. However, absences that are six months or more may result in a break of the continuous residence. Once broken, an applicant must re-accrue continuous residence.
In some instances, an applicant who must take an extended trip outside of the U.S. may file an application to preserve residence for naturalization. If approved, this permits a permanent resident to meet the continuous residence requirement even though he is not physically present in the U.S. for a prolonged period as required.
- I am in the US armed forces, are the requirements different for US citizenship?
- The requirements for naturalization are different for those who served in the armed forces. A person can naturalize even though he is not a lawful U.S. permanent resident if he meets all of the other requirements: served honorably in the U.S. armed forces in times of war or other declared hostilities, and enlisted or was inducted while in the U.S.
- What is the requirement that I must show good moral character to be eligible for citizenship?
Good moral character is not specifically defined. However, it reflects character that measures up to the standards of the average citizen in a particular community in which the applicant resides. It does not require that the applicant be a person of the highest degree of morals.
Generally, an applicant must show that he or she has been a person of good moral character for the statutory period (typically five years, or three years if married to a U.S. citizen, or one year for Armed Forces expedite) prior to filing for naturalization. The Service is not limited to the statutory period in determining whether an applicant has established good moral character. An applicant is permanently barred from naturalization if he or she has ever been convicted of murder. An applicant is also permanently barred from naturalization if he or she has been convicted of an aggravated felony as defined in section 101(a)(43) of the Act on or after November 29, 1990. A person also cannot be found to be a person of good moral character if during the last five years he or she:
- has committed and been convicted of one or more crimes involving moral turpitude;
- has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more
- has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana;
- has been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more;
- has committed and been convicted of two or more gambling offenses;
- is or has earned his or her principle income from illegal gambling;
- is or has been involved in prostitution or commercialized vice;
- is or has been involved in smuggling illegal aliens into the United States;
- is or has been a habitual drunkard;
- is practicing or has practiced polygamy;
- has willfully failed or refused to support dependents;
- has given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.
An applicant must disclose all relevant facts to the Service, including his or her entire criminal history, regardless of whether the criminal history disqualifies the applicant under the enumerated provisions.
- I have been convicted of a crime, may I still apply for US citizenship?
Applicants are required to show good moral character. Certain convictions may adversely affect one’s ability to show good moral character. In some instances, applicants are not able to demonstrate good moral character when they engage in certain criminal conduct even if no conviction or charge was obtained against them. The determination whether one is prevented for naturalizing due to a crime depends on the nature, severity and circumstances surrounding the criminal conduct. In order to evaluate the impact of a charge or conviction on a potential citizenship petition, an immigration attorney is likely to review all documents relating to the charges and conviction as well as copies of the court file.
- How early can I apply for Citizenship/Naturalization?
An application for naturalization may be submitted 90 days earlier than the date on which the applicant meets the continuous residence requirement. As such, those who seek to apply based on marriage to a U.S. citizen may submit the application after 2 years and 9 months. Other applicants may submit the petition after 4 years and 9 months.
- Do I have to register for selective service in order to qualify for citizenship?
- The law requires that every male U.S. citizen or permanent resident between the ages of 18 and 26 register for selective service. Those who become citizens or permanent residents after the age of 26 are not required to register. Failure to register may result in the denial of the citizenship application based on lack of good moral character if the applicant knowingly and willfully failed to register for selective service.
- Can I travel after filing my citizenship application?
- Applicants for naturalization are expected to maintain their continuous residency while the petition is pending.
- What if I am applying for Citizenship and I registered to vote, or voted unlawfully?
Please click here to read the USCIS memorandum on Procedures for Handling Naturalization Applications of Aliens Who Voted Unlawfully or Falsely Represented Themselves as U.S. Citizens by Voting or Registering to Vote.
To see a flow chart on illegal voting and false claim to U.S. Citizenship, click here.
- Deportation/Removal Due To Claim of Citizenship, Voting, & Document Fraud
Falsely Claiming Citizenship.
Any alien who falsely represents, or has falsely represented, him or herself to be a citizen of the United States for any purpose or benefit is deportable. INA §237 (a)(3)(D).
Waiver/Exception: However, there is an exception to this rule for certain aliens if: (1) each natural parent of the alien is or was a citizen (whether by birth or naturalization), (2) the alien permanently resided in the United States prior to attaining the age of 16, and (3) the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be deportable under any provision of this subsection based on such representation.
Unlawful Voters - INA §237 (a)(6).
Any alien who has voted in violation of any federal, state, or local constitutional provision, statute, ordinance, or regulation is deportable.
Waiver/Exception: An alien may fall within an exception to this rule if the following conditions are met: (1) each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), (2) the alien permanently resided in the United States prior to attaining the age of 16, and (3) the alien reasonably believed at the time of such violation that he or she was a citizen.
Document Fraud - INA §237 (a)(3)(C).
An alien may be deportable if they are convicted under the Immigration Nationality Act ("INA") for, among other offenses, forging, counterfeiting, altering, or falsely making any document for the purpose of satisfying a requirement of the INA or to obtain an immigration benefit.
Waiver: The Attorney General may waive this ground for deportability if: (1) The alien lawfully admitted for permanent residence, (2) if no previous civil money penalty was imposed against the alien for the offense, and (3) the offense was incurred solely to assist, aid, or support the alien's spouse or child (and not another individual). INA §237 (a)(3)(C)(ii).
- Are there any tests that I have to complete in order to become naturalized?
Yes, applicants must pass a test to demonstrate ability to read, write and speak elementary English. Disabled persons who are unable to pass this test may obtain and submit a statement from a health-care provider to obtain an exemption.
Applicants are tested on their ability to speak and understand the English language. This requirement will be waived if:
- the applicants are over 50 years of age and have lived in the U.S. for 20 years subsequent to their lawful permanent resident status; or
- the applicants are over 55 years of age and have lived in the U.S. for 15 years subsequent to lawful permanent resident status.
Applicants are also required to take a written exam regarding U.S. government and history. Applicants over the age of 65 who have been lawful permanent resident for 20 years or more may obtain special consideration. Applicants who qualify for this special consideration would only be required to take a written examination which consists of 25 questions. The applicants would be required to answer only 10 of those questions. Of those 10 questions, the applicants need to answer only 6 correctly. The test would be administered in the persons' native language. Preparation material for this examination may be obtained at a U.S. government book store. In addition, certain schools offer preparatory courses.
- How can I prepare for the tests required for naturalization?
Knowledge of U.S. History and Government Examination
- United States History Study Guide for Civics Exam
- United States Government Structure Study Guide for Civics Exam
- 100 Sample U.S. History and Government Questions with Answers
- Naturalization Test Questions for Applicants Meeting 65/20 Exception
English Language Examination
- United States History Study Guide for Civics Exam
- May I take a sample test online to determine if I am ready for the Naturalization tests?
Yes, click here to perform an online self-test of U.S. History.
- Citizenship and Naturalization for Adopted Children
Under the Child Citizenship Act (CCA) of 2000, effective on February 27, 2001, orphans adopted by U.S. Citizens acquire citizenship automatically when the following requirements are met:
- At least one parent is a U.S. citizen.
- The child is under 18 years of age.
- There is a full and final adoption of the child, and the child is admitted to the U.S. as a Lawful Permanent Resident.
- The child is residing in the legal and physical custody of the citizen parent in the United States.
Orphans entering the U.S. under the IR-3 visa become U.S. citizens upon admission as long as they meet the above-mentioned requirements. Those meeting the requirements usually receive a certificate of citizenship within 45 days of entering.
On the other hand, orphans entering the U.S. under the IR-4 visa do not become U.S. citizens when the adoption is finalized in the United States. They will however, be Lawful Permanent Residents until then.
For more information, please see Frequently Asked Question on Child Citizenship Act
Child Citizenship Act
- CCA-Will USCIS automatically provide me with documentation of my child's
At the present time, USCIS is not able to automatically provide biological parents with documentation of their child's citizenship. USCIS will continue to implement programs that streamline processes to more rapidly issue Certificates of Citizenship to qualifying children.
- CCA-Is automatic citizenship provided for those who are 18 years of age or older?
No. Individuals who are 18 years of age or older on February 27, 2001, do not qualify for citizenship under the CCA, even if they meet all other criteria. If they wish to become U.S. citizens, they must apply for naturalization and meet eligibility requirements that currently exist for adult lawful permanent residents.
- CCA-What documentation can I get of my child's citizenship?
If your child permanently resides in the U.S, you can obtain evidence of your child's citizenship by applying for a Certificate of Citizenship. You will need to file an Application for Certificate of Citizenship to the USCIS. You can also apply for a U.S. Passport from the Department of State.
- CCA-Do I have to apply to USCIS for my child's citizenship?
No. If your child satisfies the requirements listed above, he or she automatically acquires U.S. citizenship by operation of law on the day he or she is admitted to the United States as an immigrant. Your child's citizenship status is no longer dependent on USCIS approving a naturalization application.
- CCA-Does my child qualify for automatic citizenship under the CCA?
Under the Child Citizenship Act (CCA), your child will automatically acquire U.S. citizenship on the datethat all of the following requirements are satisfied:
- At least one parent is a U.S. citizen
- The child is under 18 years of age
- The child is admitted to the United States as an immigrant.
- Citizenship/Naturalization-USCIS Addresses Workload, Backlogs and Delays in Process and Interviews
An April 25, 2008 Memorandum issued by the USCIS responds to the surge in N-400 citizenship and naturalization applications as well as the lengthy delays in processing applications already filed and pending. The memo also addresses the lengthy delays and wait for citizenship/naturalization interviews.The USCIS will hire and train several hundred adjudicators. In addition, the USCIS has installed new processes and implemented changes to the existing processes in the following areas:
- Citizenship/Naturalization Interview - Pre-examination Check-in
- Citizenship/Naturalization Interview - Testing
- Citizenship/Naturalization Interview - Applicant Interview
- Citizenship/Naturalization Interview - Post-examination Process
In addition, citizenship/naturalization applications and interviews must now be conducted and approved by a designated examiner. [Read the entire USCIS Citizenship/Naturalization Application Changes]
- Citizenship/Naturalization Application Delays - USCIS Memo Cites Reduction in Backlogs
An August 11, 2008 memorandum by the USCIS updates the citizenship/naturalization processing times and provides a status report on USCIS attempts to reduce the processing delays and backlogs that have haunted the citizenship/naturalization application process.
This USCIS memorandum discusses the surge in naturalization applications, its aggressive hiring plans and expanded work hours in an attempt to reduce the application backlogs and delays. The memo also provides citizenship/naturalization application statistics and processing times by the different USCIS offices as of September 2008. [Citizenship/Naturalization Application Delays - USCIS Memo Cites Reduction in Backlogs].
- Naturalization/Citizenship By Military Service - USCIS Update
The USCIS issued an updated memorandum on April 14, 2008 regarding naturalization/Citizenship through military service. The provides a good avenue for those who served or are serving in any of the following branches of the military: Army, Navy, Air Force, Marine Corps, Coast Guard and certain reserve components of the National Guard of the Ready Reserve. Read USCIS Fact Sheet..
- Class Action Settlement To End Naturalization And Adjustment Of Status Delays
USCIS and Counsel for class members in the class action complaint of Kaplan v. Chertoff, 06-5305 (E.D. PA) reached a settlement on the lawsuit regarding the various delays and backlogs associated with citizenship/naturalization and adjustment of status applications. Under the settlement, class members that have had an application pending for more than six months are permitted to request expedite processing of their petitions.
The USCIS and FBI are also directed to request priority processing of any pending or future security checks. Under the agreement, the social security administration is to identify and contact individuals whose benefits were terminated and those at risk of termination while waiting for a stalled naturalization application. [Class Action Settlement To End Naturalization And Adjustment Of Status Delays].
- USCIS Announces New Naturalization Test
FAQs- U.S. Tax on Income of Aliens and Visa Holder
- What is the difference between a resident alien and a nonresident alien for tax purposes?
For tax purposes, an alien is an individual who is not a U.S. citizen. Aliens are classified as resident aliens and nonresident aliens. Resident aliens are taxed on their worldwide income, the same as U.S. citizens. Nonresident aliens are taxed only on their U.S. source income.
- What is the difference between the taxation of income that is effectively connected with a trade or business in the United States and income that is not effectively connected with a trade or business in the United States?
The difference between these two categories is that effectively connected income, after allowable deductions, is taxed at graduated rates. These are the same rates that apply to U.S. citizens and residents. Income that is not effectively connected is taxed at a flat 30% (or lower treaty) rate
- I am a student with an F-1 Visa. I was told that I was an exempt individual. Does this mean I am exempt from paying U.S. tax?
The term "exempt individual" does not refer to someone exempt from U.S. tax. You were referred to as an exempt individual because as a student temporarily in the United States on an F Visa, you do not have to count the days you were present in the United States as a student during the first 5 years in determining if you are a resident alien under the substantial presence test.
- I am a resident alien. Can I claim any treaty benefits?
Generally, you cannot claim tax treaty benefits as a resident alien. However, there are exceptions.
- I am a nonresident alien with no dependents. I am working temporarily for a U.S. company. What return do I file?
You must file Form 1040NR if you are engaged in a trade or business in the United States, or have any other U.S. source income on which tax was not fully paid by the amount withheld. You can use Form 1040N R-EZ instead of Form 1040NR if you meet all 11 conditions listed under Form 1040NR-EZ in chapter 7.
- I came to the United States on June 30th of last year. I have an H-1 B Visa. What is my tax status, resident alien or nonresident alien? What tax return do I file?
You were a dual-status alien last year. As a general rule, because you were in the United States for 183 days or more, you have met the substantial presence test and you are taxed as a resident. However, for the part of the year that you were not present in the United States, you are a nonresident. File Form 1040. Print "Dual-Status Return" across the top. Attach a statement showing your U.S. source income for the part of the year you were a nonresident. You may use Form 1040NR as the statement. Print "Dual-Status Statement" across the top.
- When is my Form 1040NR due?
If you are an employee and you receive wages subject to U.S. income tax withholding, you must generally file by the 15th day of the 4th month after your tax year ends. If you file for the 2007 calendar year, your return is due April 15, 2008. If you are not an employee who receives wages subject to U.S. income tax withholding, you must file by the 15th day of the 6th month after your tax year ends. For the 2007 calendar year, file your return by June 16, 2008.
A social security number (SSN) must be furnished on returns, statements, and other tax-related documents. If your spouse does not have and is not eligible to get an SSN, he must apply for an individual taxpayer identification number (ITIN). If you are a U.S. citizen or resident and you choose to treat your nonresident spouse as a resident and file a joint tax return, your nonresident spouse needs an SSN or an ITIN. Alien spouses who are claimed as exemptions or dependents are also required to furnish an SSN or an ITIN.
- I am a nonresident alien. Can I file a joint return with my spouse?
Generally, you cannot file as married filing jointly if either spouse was a nonresident alien at any time during the tax year. However, nonresident aliens married to U.S. citizens or residents can choose to be treated as U.S. residents and file joint returns.
- I have an H-1 B Visa and my husband has an F-1 Visa. We both lived in the United States all of last year and had income. What kind of form should we file? Do we file separate returns or a joint return?
Assuming both of you had these visas for all of last year, you are a resident alien. Your husband is a nonresident alien if he has not been in the United States as a student for more than 5 years. You and your husband can file a joint tax return on Form 1040, 1040A, or 1040EZ if he makes the choice to be treated as a resident for the entire year. If your husband does not make this choice, you must file a separate return on Form 1040 or Form 1040A. Your husband must file Form 1040NR or 1040NR-EZ. Is a "dual-resident taxpayer" the same as a "dual-status taxpayer"?' No. A dual-resident taxpayer is one who is a resident of both the United States and another country under each country's tax laws. You are a dual-status taxpayer when you are both a resident alien and a nonresident alien in the same year.
- I am a nonresident alien and invested money in the U.S. stock market through a U.S. brokerage company. Are the dividends and the capital gains taxable? If yes, how are they taxed?
The following rules apply if the dividends and capital gains are not effectively connected with a U.S. trade or business. Capital gains are generally not taxable if you were in the United States for less than 183 days during the year. Dividends are generally taxed at a 30% (or lower treaty) rate. The brokerage company or payor of the dividends should withhold this tax at source. If tax is not withheld at the correct rate, you must file Form 1040NR to receive a refund or pay any additional tax due. If the capital gains and dividends are effectively connected with a U.S. trade or business, they are taxed according to the same rules and at the same rates that apply to U.S. citizens and residents.
If you are a nonresident alien, 85% of any U.S. social security benefits (and the equivalent portion of tier 1 railroad retirement benefits) you receive is subject to the flat 30% tax, unless exempt, or subject to a lower treaty rate.
- Do I have to pay taxes on my scholarship?
If you are a nonresident alien and the scholarship is not from U.S. sources, it is not subject to U.S. tax. If your scholarship is from U.S. sources or you are a resident alien, your scholarship is subject to U.S. tax according to the following rules. • If you are a candidate for a degree, you may be able to exclude from your income the part of the scholarship you use to pay for tuition, fees, books,A supplies, and equipment required by the educational institution. However, the part of the scholarship you use to pay for other expenses, such as room and board, is taxable. If you are not a candidate for a degree, your scholarship is taxable.
- I am a nonresident alien. Can I claim the standard deduction?
Nonresident aliens cannot claim the standard deduction.
- I am a dual-status taxpayer. Can I claim the standard deduction?
You cannot claim the standard deduction allowed on Form 1040. However, you can itemize any allowable deductions.
- I am filing Form 1040NR. Can I claim itemized deductions?
Nonresident aliens can claim some of the same itemized deductions that resident aliens can claim. However, nonresident aliens can claim itemized deductions only if they have income effectively connected with their U.S. trade or business.
- I am not a U.S. citizen. What exemptions can I claim?
Publication 519 (2007) Resident aliens can claim personal exemptions and exemptions for dependents in the same way as U.S. citizens. However, nonresident aliens generally can claim only a personal exemption for themselves on their U.S. tax return. There are special rules for residents of Mexico, Canada, and the Republic of Korea (South Korea); for U.S. nationals; and for students and business apprentices from India.
- What exemptions can I claim as a dual-status taxpayer?
As a dual-status taxpayer, you usually will be able to claim your own personal exemption. Subject to the general rules for qualification, you can claim exemptions for your spouse and dependents when you figure taxable income for the part of the year you are a resident alien. The amount you can claim for these exemptions is limited to your taxable income (figured before subtracting exemptions) for the part of the year you are a resident alien. You cannot use exemptions (other than your own) to reduce taxable income to less than zero for that period.
- I am single with a dependent child. I was a dual-status alien in 2007. Can I claim the earned income credit on my 2007 tax return?
If you are a nonresident alien for any part of the year, you cannot claim the earned income credit.
- l am a nonresident alien student. Can I claim an education credit on my Form 1040NR?
If you are a nonresident alien for any part of the year, you generally cannot claim the education credits. However, if you are married and choose to file a joint return with a U.S. citizen or resident spouse, you may be eligible for these credits.
Generally, services you perform as a nonresident alien temporarily in the United States as a nonimmigrant under subparagraph (F), (J), (M), or (Q) of section 101 (a)(15) of the Immigration and Nationality Act are not covered under the social security program if you perform the services to carry out the purpose for which you were admitted to the United States.
If social security or Medicare taxes were withheld in error from pay that is not subject to these taxes, contact the employer who withheld the taxes for a refund. If you are unable to get a full refund of the amount from your employer, file a claim for refund with the Internal Revenue Service on Form 843.
- I am an alien who will be leaving the United States. What forms do I have to file before I leave?
Before leaving the United States, aliens generally must obtain a certificate of compliance. This document, also popularly known as the sailing permit or departure permit, is part of the income tax form you must file before leaving. You will receive a sailing or departure permit after filing a Form 1040-C or Form 2063.