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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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