Your a foreign student attending a college or university in the United States and happily going to classes (at least before COVID 19) and when you least expect it you fall in love with an American. It is not just a college romance but the real thing. True love. Want to get married and live together love. What do you do?
The first concern is to make sure this is the real thing. I am an immigration attorney and my advise does not extend to what is real love. However, I can advise that the laws are very clear that marriage for the purpose of obtaining immigration benefits such as resident status in the United States, is considered serious fraud. A finding by the Citizenship and Immigration Services (CIS) that the marriage was for the purpose of obtaining immigration benefits is likely to get the foreigner removed from the United States and often permanent bar to ever coming back to the United States. The American is also subject to criminal charges and civil fines for lying to the government.
Second, are your (the foreign student) planning on remaining in the United States with your spouse or is your American spouse planning on moving back to your country? If the American is leaving to make a life in another country then the issue of immigrating to the United States is not something to discuss now. However, don't stop reading as someday the two of you may want to return to the United States. Some readers may believe that the married couple would, of course, want to live in the United States. Unfortunately, that is a myopic view. There are many countries that have a higher standard of living, less poverty, and higher happiness quotient then the United States.
If the decision is to live in the United States then there is a process that must be followed for the foreign national to be permitted to live in the United States. For now, lets skip the process and examine a few concerns about getting married while still a student.
- Your no longer a student once you submit an application to become a United States resident. The student visa, like almost all American visas, requires the foreign national to have the intent to leave the United States at the end of their studies. Once you submit an application to become a resident you no longer have the intent to leave the United States.
- If you are in the United States on a J-1 visa and you are subject to the two year requirement to return to your country of nationality after your studies then you might be held to that 2 two year requirement. Although there is a process to get the two year requirement waived there is no guarantee that it will be. Some J-1 visitors may find it exceedingly hard to qualify for the waiver.
- Are you living with your spouse? There are many reasons that newly weds might not be living together, for example one spouse might be in the armed services and stationed in another city. Understand that it is your job to prove to the immigration service officer that your marriage is real and not for the purpose of obtaining immigration benefits. If you and your spouse are not living together you have an incredibly difficult argument to make to meet that burden of proof. If this is the case seek the opinion of an immigration attorney before you get married.
- Does your American spouse have the income or assets to be a financial sponsor? If not you and your spouse will need to find a relative or very close friend to be a joint financial sponsor. Also be prepared to explain to an immigration service officer why that relative or very close friend would offer to be a sponsor.
- Is your marriage going to last? You may have true love and it may be the real thing but people change and as the wait to be processed by the CIS gets longer it becomes more likely that a change might happen before you get your resident status. When you interviewed by an immigration service officer and you and your spouse are having issues, or are separated, you may technically qualify for resident status but the reality is that your application is unlikely to be approved. Let me give you an example, a young couple got married and came to my office and retained me to prepare and file the husband's application for resident status. There was no question that they had know each other for several years and that that they were in love. However, they had never lived together before the marriage and as they waited for their appointment to be interviewed at the CIS office the American spouse realized that, even though they loved each other they were too different to live together. (I not saying anything about living or not living together before marriage I am just stating what happened in this case.) People make mistakes and get divorced. Unfortunately, getting divorced when you are applying for resident status has a very serious consequence that American citizens do not need to worry about.
- Be aware of differences. I am not saying that differences in age, religion, race, ethnicity and culture should be a factor in your relationship, your love for each other or decision to get married. Just be aware that it is your burden to prove the marriage is not for immigration purposes. The immigration service officer has been trained to spot marriage fraud and differences could raise the level of scrutiny. Please do not think this is always the case as it is not and immigration service officers are also trained to not let their biases affect their decision. Another example a couple came to my office, he was a large black American man and she was a petite Japanese woman. They were of totally different cultural and religious backgrounds and neither spoke the other's language well enough to communicate without a smart phone translation app. I knew there story but still I had deep concerns the day of their interview at the CIS office. However, their story of how they feel in love, overcoming difficulties, and belief in each other was more than enough to satisfy the immigration service officer.
I can keep going as it is my job as an attorney to look at all the factors that make a person, a couple, eligible for resident status. The above six concerns should be enough to start a discussion between you and your true love.
One more concern to share. The process of getting resident status through marriage to an American is full of obstacles; and getting stuck behind an obstacle can result in denial of your application and perhaps removal from the United States. Applying for residence status is a life changing event that you don't want to attempt on your own. With your fiancee or spouse seek the advice and assistance of an attorney who practices is limited to immigration law. You will hear many stories of couples who file their own applications and were approved. I consider them lucky; and you do not hear the stories of those foreign nationals that did it themselves and were denied and removed from the United States.