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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.
[The following paid consultation question is taken from the Guru’s past client files.]
I am a permanent resident and am going to apply for a US citizenship within a week. My fiancee from Mexico and I are talking about our marriage this year. But I wonder whether we should get married before or after I convert my nationality to a US citizen. Is it better to get married before my naturalization? She came here with a B1/B2 visa with I-94 four months ago and has to renew her I-94 every 6 months to stay in California. I’ve sent you separately details about my naturalization case.
First of all, someone with a B-1/B-2 tourist visa can only request one extension to stay here for an additional six months, it’s not something to renew every six months (a person simply can’t be a tourist for years and years in the US). Also, your fiancee must have good reasons why she wants to stay here longer as a tourist before the extension will be granted. As long as she files for extension before the date her current stay expires on her I-94 (which should be in about two months), she will be allowed to stay here pending a decision on the extension. Since you’re here in the Los Angeles area, it’s currently taking California Service Center about 2 ½ months on average to reach a decision.
As far as timing of the marriage, you can do it before or after your naturalization has been approved based on the information you’ve shared. It should be after her tourist extension application (Form I-539) has been filed, to prevent USCIS from denying the extension on the grounds that she has a husband who has a green card and so she’ll likely have immigrant intent to stay permanently in the US. If you do that and file an I-130 for your wife immediately, still before your naturalization case is approved, there will be no visa number available for a few years for her because the I-130 will be under the F2A category, which has only a limited number of visas each year. Filing the I-130 for her will only be a preliminary step; she still would have to wait a few years before being eligible for a green card. That would be the situation if you don’t become a citizen quickly enough. However, as soon as you become a citizen, the I-130 is automatically converted to that for an immediate relative and she’ll be able to file for green card right away if she’s still in the US. From what you sent me before, your naturalization case (Form N-400) will probably be approved within about five months from now here in L.A. since it looks pretty routine. You don’t seem to have difficult issues such as criminal arrests or convictions, or other issues that could drag the case out for more than the expected time until approval. So, yes, under these circumstances, you can marry after her own I-539 is filed and file an I-130 for her because five months from now, it appears fairly certain you will become a US citizen (Note: this is an average time as currently being reported by USCIS, each case may take slightly longer or shorter).
You also asked what if for some reason your citizenship is delayed and takes a lot longer to be approved, say a year and half from now. In that case, your wife, even after receiving an extension of her tourist status for six months, may be running up against the end of her allowed stay while your own case is still waiting for a decision. However, she could stay here and even be out of status and wait for a favorable decision on your case, then file for green card. Is there a risk for her being out of status? Yes, but there’s only a slight risk since immigration officials are not likely, during current immigration climate, to send notice of deportation proceedings to her for being only a short time out of status.
You can, of course, delay the marriage until after your naturalization is approved. That would seem to be about five months from now, as stated above, if your case is smooth. But even if it’s not smooth, and takes a year and half to get approved, and assuming she will even be out of status, you could still marry her after your naturalization has been approved, and she’ll be able to get her green card here.
Larry L. Doan, Esq.
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