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Physical presence and permanent residency  

 

For an U.S. citizen/foreign national couple, determining whether to apply for adjustment of status or consular processing will significantly depend on the location of each and the status of their relationship. 

U.S. citizen is in the U.S. and the foreign fiance(e) is out of the U.S.
In this situation, an option available to the couple is the K-1 fiance visa. This visa petition can be approved by the INS fairly quickly. After notice is sent to a U.S. embassy/consulate overseas, the foreign fiance can obtain a K-1 visa, enter the U.S., and get married. Thereafter the foreign national will apply for adjustment of status and wait for permanent residency. Alternatively, the U.S. citizen can fly out to meet the foreign fiance, get married, and submit paperwork at the local INS overseas or U.S. consulate to apply for an immigrant visa. This second option is less desirable as, in most cases, the U.S. citizen will have to return to the U.S. before the immigrant visa is issued, thus resulting in a period of separation for the married couple. 

U.S. citizen is in the U.S. and foreign fiancé is in the U.S.
Here, we assume that the foreign fiancé is currently in the U.S. in a valid temporary status such as a F-1 student. It would then be possible for the two to get married in the U.S. and then submit a petition for permanent residency and an application for adjustment of status. INS regulations permit the two applications to be submitted at the same time. The result is that the foreign national can wait in the U.S. and work while waiting for permanent residency. It is vital that foreign fiancé understand that he or she must have entered the U.S. for a valid purpose; entering with the intention of marrying a U.S. citizen is not valid and could lead to an INS allegation of fraud. Such a course of action is not encouraged. 

U.S. citizen is in of the U.S. and the foreign spouse is out of the U.S.
 The U.S. citizen spouse can submit a petition to the INS. Upon approval the INS will send notice to the National Visa Center who will then send a packet to the spouse with instructions on obtaining an immigrant visa and provide notice of approval to the near U.S. consulate. Thereafter the consulate will contact the foreign national for an interview during which she can obtain an immigrant visa to be used to enter the U.S. 


U.S. citizen is out of the U.S. and the foreign spouse is out of the U.S.
This situation is similar to the first scenario with the result that the U.S. citizen can submit paperwork to the local INS office, if available, or to the nearest U.S. consulate.


 

   
   

 

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