Posted May 14, 2014 by Allison Herre and Douglas Halpert 

Five Key Immigration Issues for Foreign Students Marrying U.S. Citizens

You may be a foreign student planning to marry a U.S. citizen. Or you’re a foreign student advisor who is visited by a foreign student who tells you they are getting married to a U.S. citizen next month. What do you do? What are the hidden traps that you might not know about?

Trap No. 1: The Travel Trap
When applying for a U.S. visa at a U.S. Consulate abroad or when re-entering the U.S., F-1 (student) and J-1 (exchange visitor) visa holders have the burden of proving that they are entering the U.S. for a temporary period. While marrying a U.S. citizen does not establish that one plans to permanently reside in the country, U.S. Immigration typically reach that conclusion and will likely deny the F-1 or J-1 visa application or re-entry. F-1 and J-1 applicants must be truthful when asked about their marital status. Consequently, once one is engaged, it is advisable not to travel abroad until one has gotten married, applied for permanent residence, and secured a special travel document known as advance parole that permits travel abroad and re-entry without a visa.

Trap No. 2: The Financial Trap
For some decades now, U.S. immigration law has required the U.S. citizen petitioner to file an Affidavit of Support to pledge financial support to the foreign national being sponsored. The U.S. citizen must submit the latest federal tax return plus all W-2s, if employed. If the U.S. citizen is not working and lacks income, the U.S. citizen may count the foreign national’s income, if gained via legal employment. If the couple cannot meet the required income threshold, currently $19,387 for a family of two, the couple may apply liquid assets at a rate of $3 for each $1 that the couple is short. If the couple still is short, a joint sponsor domiciled in the U.S. is required. The financial obligation of the U.S. citizen endures until the foreign national works for 40 quarters paying into the FICA system, dies, or abandons the U.S. residence. Divorce does not relieve a sponsor of the support obligation.

Trap No. 3: The Evidence Trap
To receive a permanent resident “green” card, the U.S. citizen and foreign national must convince an immigration officer that they are involved in a loving, committed, and bona fide relationship. The immigration officer must determine whether the foreign national desires to marry the U.S. citizen solely to receive a green card. To help establish that the marriage is legitimate, the couple should provide evidence of the mingling of two lives in a myriad of ways. Examples of evidence include: documentation of joint finances; living together; traveling together; history of the relationship; raising children; or other items.

Trap No. 4: The Living Apart Trap
In an age of globalism, long-distance relationships are becoming more prevalent and more successful. However, to an immigration officer, living apart, especially for prolonged periods of time, raises red flags as to the sincerity of the relationship. If the U.S. citizen and foreign national live apart for financial or educational reasons, the immigration officer will want to see evidence of the underlying reasons, such as school enrollment documents and letters from employers.

Trap No. 5: The “It Wasn’t A Big Deal” Trap
Unbeknownst to many foreign nationals, a youthful indiscretion can have a devastating impact on a foreign national’s ability to receive a green card. Traffic tickets, such as speeding or parking tickets aside, a simple ticket for drug possession may make the foreign national ineligible for permanent residence. U.S. Immigration even views participation in some diversion and discharge programs to equal a conviction for immigration purposes. If the foreign national has a conviction for a criminal offense of any type, the foreign national may have larger issues arise relating to the foreign national’s prior U.S. immigration history. Any foreign national with an arrest, citation, or conviction ought to consult with an experienced immigration attorney.

Marriage is an exciting life event and securing a green card to permit a happy future in the U.S. for the newlyweds is a wonderful thing. It would be a mistake to plan the perfect wedding but forget to account for the legalities that the immigration process imposes.

Allison Herre

Allison Herre is the Associate at Hammond Law Group, LLC.

Allison focuses her practice primarily on helping families throughout the United States to navigate the U.S. immigration process. She represents many foreign students who marry U.S. citizens and handles a large volume of K-1 and I-130/I-485 cases.

Douglas Halpert

Douglas Halpert is the Partner at Hammond Law Group, LLC.

Douglas has more than a quarter century of experience helping university professors and researchers around the U.S. through the immigration process including EB1 Extraordinary Ability, Outstanding Professor/Researcher, and National Interest Waiver cases. He also handles family-based immigration cases including K-1 and permanent residence cases.


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