The Alphabet Soup of Immigration Law

Alex, our Canadian client, is dating an American woman and planning to get engaged on his next visit to the US. He called so we could figure out the proper timing for everything, with his immigration status in mind. He wanted to know how long his trip to the US could be this time, whether they would be able to have the wedding during this stay, and how soon after that he would be able to travel back home.

“The first thing to mention,” I said, “is when you come to the US under ESTA, you are just supposed to be coming in for a temporary visit, and not to live there permanently.”

“Let me stop you for a second,” he interrupted. “What is ESTA, and what does it mean that I am coming in under it??”

ESTA, B1/B2, AOS, CP, K-1 – the list goes on. Immigration law is an alphabet soup of acronyms and visa names. It’s sometimes confusing even for those of us that use these terms on a day-to-day basis.

One of the most common calls we get at our office is: how do I go about getting married to my foreign-born fiancé(e), and getting him or her a green card to live in the US? There are multiple options when it comes to getting permanent residency for a foreign spouse via marriage. So what terms does a couple need to know, and how can they decide which options works for them?

Alex never heard the term ESTA, even though that’s how many Canadians enter the US every day. ESTA (or Electronic System for Travel Authorization) is an online system that allows citizens from certain countries to travel to the US for tourism or business for up to 90 days, without having to apply for a visa. You might also hear it referred to as the “Visa Waiver Program”. Entering the US under ESTA indicates that you are coming in with the intention of staying for a short-term, temporary visit.

The B1/B2 visa, also referred to as the Visitor Visa, allows foreign nationals to enter the U.S. temporarily for business or tourism. Someone might apply for a B1/B2 if they are from a country that is not under the Visa Waiver Program, or they need to stay longer than 90 days. Similar to ESTA, the B1/B2 visa does not permit long-term stays or working in the US.

Legal Permanent Resident (LPR) and the “Green Card”: A Legal Permanent Resident or LPR is a foreign national who has been granted the right to live and work in the US on a permanent basis. This status is commonly referred to as holding a Green Card, which serves as proof of lawful permanent residency. While it is called “permanent”, it is usually valid for 10 years (there are exceptions) and must be renewed.

Now that we know some basic immigration lingo, how do we go about getting our spouse a Green Card?? Adjustment of Status, Consular Processing, and the K-1 Fiancé(e) Visa are the primary routes available to help couples start building their lives together in the US.

Adjustment of Status (AOS): If, before getting married, the foreign fiancé(e) entered the US lawfully, such as on a student or work visa, then after getting legally married, the couple is able to apply directly for a green card. The foreign spouse can live in the U.S. while their application is being processed. They can also apply for a work permit and a travel document while waiting for their green card to arrive– but these can still take months to arrive.

If someone is in the US on a visa like B1/B2, or through ESTA, AOS may be the appropriate path, but they must be cautious about intent and timing. Marrying after the foreign spouse’s entry into the U.S. is permissible, but entering with the intent to marry and stay can lead to complications.

Consular Processing (CP): If a foreign spouse is residing abroad, they can’t “adjust status” because they have no status from which to adjust! After the relevant paperwork is approved, they must wait for an interview at the US embassy or consulate in their home country. After the interview (as long as they are approved!), the foreign spouse can enter the US as an LPR. This process can take longer than AOS, but might the best option if the foreign spouse is living abroad.

K-1 Visa: You may have heard this one referred to as the Fiancé(e) Visa. The K-1 can be used if a couple if not yet married, and the foreign fiancé(e) is not in the US. It allows the foreign fiancé(e) to enter the US on a non-immigrant visa, and the couple must marry within 90 days of entry. After the marriage, the foreign spouse can apply for AOS to become an LPR.

On our call, Alex and I went back to basics to make sure he knew all the lingo involved, so he would be able to make an informed decision about when to come in, when to leave, and when to get married. Wishing Alex and his bride congratulations and a stress-free immigration process!