INDIAN BRIDES /BRIDE GROOMS SHOULD KNOW THIS
-Sudhir Shah, Advocate, Mumbai

USA Immigration Laws provide for 2 types of visa. Immigrant, for those who intend to stay in USA permanently and Non immigrant for those who desire to travel to USA for specific purposes for temporary duration. It is quite natural for an Indian, who marries someone residing in USA, to travel to USA to unite with her/his husband/wife and thus in need of an Immigrant visa.

If an Indian marries someone residing in USA, who is a USA citizen, that person is eligible to sponsor his/her Indian spouse for an Immigrant Visa under Immediate Relative” category. Immigrant visas given under this category are not restricted by any quota numbers and Petitions filed under such category are normally processed and approved within 8 to 24 months. The Indian spouse thereupon becomes eligible to receive Immigrant Visa to travel to USA and obtain a Green Card. The USA citizen spouse, after filing an Immigrant Visa petition for his/her Indian spouse, is also eligible to sponsor his/her spouse for a K-3 finance visa. K-3 fiancé petitions are processed and approved within 6-8 months and the Indian spouse thereafter can apply and receive K-3 visa and travel to USA, stay there with his/her spouse and upon his/her petition for Immigrant Visa being processed and approved, apply for Adjustment of Status from K-3 to a Permanent Resident and receive a Green Card. Thus upon marrying a US citizen, the Indian spouse is eligible to travel to USA within 10-12 months to stay there permanently.

As against this, if an Indian marries a Green Card holder his/her Green Card spouse is eligible to sponsor him/her under Family 2nd Preference category, waiting time for which today is approximately 5 years. Thereupon Indian spouse can receive an Immigrant visa and travel to USA.

Indians desirous of marrying a person residing in USA therefore obviously prefer a USA citizen to a Green Card holder. Green card holders therefore lure Indians, into marrying them, by telling that they are be eligible to receive USA citizenship by naturalization very soon.

A Green card holder can acquire USA citizenship after a laps of 5 years from the date of receipt of the Green card. During this 5 year period, the green card holder must physically remain present in USA for a minimum of 2 ˝ years and should not remain out of USA, on any occasion, for a continuous period of more than 180 days. They are also required to pass English language, Civic and USA history test and should show their good moral character.

USA Laws provide that an application for citizenship by naturalization should be decided within 120 days.

All Indians intending to marry a Green card holders under the belief that the Green Card holder would be eligible to become a USA citizen by naturalization within a short period if all of the above conditions are met with must know that since September 11, 2001 the pace of considering applications for citizenship has slowed down to a very very great extent. The Immigration officers have begun scrutinizing applicant background more extensively. All applicants for citizenship must undergo a FBI name check to determine whether they appear on any terrorist watch list are mentioned in a Federal Law Enforcement Investigation. If red flags arise the applicant must prove that he /she is not the person in question.

Since October 2007 the Immigration officers have submitted 7,92,397 name check request to FBI. In March 2008 out of these on 4,46.797 applications were cleared and 3,45,600 applications were still pending. 72,000 applications there from were submitted for more than 6 months. Last year USA Govt. has received nearly 1.4 million applications for naturalization and it is unlikely that those applicants would receive USA citizenship in the near future. Applicants for USA citizenship have therefore started resorting to file Law suits against USA Govt. In fiscal year 2005, law suits filed against Department of Homeland Security, complaining that their applications for citizenship by naturalization were undecided for an in usual long period numbered 370. This Number increased to 3900 in the fiscal year 2007 and this year 5200 such law suits are already filed. All applicants for citizenship cannot afford such costly litigation and cannot approach federal courts complaining that their application for citizenship have remain undecided for an unusual length of time and that the department of Homeland Security should be directed to decide them expeditiously.

Prospective Indian Brides and Bridegrooms therefore should think twice before tying the nuptial knot by presuming that their spouse would soon become a USA citizen and would be eligible to sponsor them for a green card as an Immediate Relative. It may happen that their spouse’s applications for citizenship may not see the light of the day for next few years.