Fri | May 25, 2018

Marry or wait?

Published:Tuesday | November 20, 2012 | 12:00 AM
Dahlia A. Walker-Huntington

Dear Mrs Walker-Huntington,

My mother is a United States (US) citizen and is in the process of filing for me. However, my fiancé is also a US citizen and he wants to marry me. Please confirm how this will affect my mother's petition. Should I just wait on my mother's filing? Should I go ahead and get married? What are the pros or cons if I should marry my fiancé?


- D.W.

Dear D.W,.

An applicant for permanent residency in the US can have more than one petition being processed at any given time, as long as the subsequent petitions indicate the existence of the previous ones.

In your case, if you are the unmarried daughter of a US citizen you would be in the F1 preference category and the US Department of State is currently processing petitions with an approval date of November 1, 2005 and earlier. All beneficiaries who are immediate relatives of US citizens do not wait for their priority dates to become current before they can receive a visa - they are processed immediately, usually nine months to a year.

Immediate relatives are spouses of US citizens, parents of over 21-year-old US citizens, and under 21-year-old children of US citizens.

If you were to marry your US citizen fiancé, you would become an immediate relative and your petition for residency would be processed immediately. However, if you marry your fiancé your preference category for a visa based on your mother's petition would change from F1 to F3 - married daughter of a US citizen and also change your waiting period.

The petition filed by your US citizen husband would be subjected to strict scrutiny as all petitions by spouses are viewed to have been entered into solely for immigration benefit and the burden is placed on the couple to prove that their marriage is real. To do so you must keep all records of communications between you and your fiancé (phone, text, email, letters, chatrooms, cards, etc); photographs; money exchanges; proof of joint ownership of property and debts; proof of visits; and record of your wedding. You must also be prepared to give a truthful account of your relationship with your husband.

Sometimes when there are questions surrounding the validity of your marriage, the US embassy will schedule a petitioner interview and request that your husband appear in person with you for an interview. Other times, the embassy will return the petition to United States Citizenship & Immigration Services (USCIS) with instructions to revoke the approval. If this happens, USCIS will send a Notice of Intent To Revoke and you must respond to each and every allegation and legal argument as to why the revocation should not take place.

Take into account your priority date with your current filing and make your decision on whether to wait (if it is close to becoming current) or to go ahead and marry your fiancé and proceed with his filing. Good luck!

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal & personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida.