The spousal relationship is one of the most common bases for immigration to the U.S.. U.S. citizens can petition for foreign-born spouses as immediate relatives, meaning the spouse will have an immediately available visa number with no wait other than the time it takes to process the paperwork. Generally, if your non-citizen spouse is in the U.S. (through a lawful admission or parole) at the time you file the Form I-130, Petition for Alien Relative, your spouse may file a Form I-485, Application to Register Permanent Residence or to Adjust Status at the same time as part of the same petition package. Otherwise, the spouse will complete the residency process by obtaining an immigrant visa at a U.S. embassy abroad and then enter the U.S. as a permanent resident.

Lawful permanent residents can petition for their spouses, but the petition falls into the second preference family category. There is an annual limit of 114,200 visas in this category, plus whatever visas are unused in the first preference. The second preference also includes adult unmarried children of permanent residents. Within the second preference, spouses receive 77 percent of the visas, or just under 8,000. Spouses are also eligible to immigrate as derivative beneficiaries of a married adult child of a citizen and of brothers or sisters of citizens. These categories can be backlogged for several years. This means that while a petition for the spouse may be approved, he or she may not complete the process of permanent residence until a visa becomes available in that preference category.

What specific criteria must the marriage meet to be considered valid?

There are three very important standards that the marriage must meet.

  • The marriage must have been valid at the time it was performed
  • The marriage must still be in existence (not terminated) at the time the immigration process in completed (and not just when the application is submitted)
  • The marriage must not have been entered into for immigration purposes

Was the marriage valid at the time of performance?

For a marriage to be valid, there are two primary requirements:

  • Each party must have been legally able to marry, and
  • The marriage ceremony must be considered legal under the laws where it was performed and must not violate the public policies of the United States (such as a polygamous marriage).

In cases where one of the parties had previously been married, the divorce must be final and valid. Divorces in which neither party was present in the jurisdiction granting the divorce are almost always invalid, whereas those granted in a jurisdiction where both parties were present are almost always valid. Divorces granted when only one person was present, particularly those that occur in countries known for granting divorces in such cases, are highly suspect. Whether a subsequent marriage is valid depends on the law of the place of the new marriage.

Common law marriages, which are now quite rare in the U.S. and only recognized in only a handful of states, can be valid for immigration purposes if the laws of the place of residence, or last previous residence, legally recognize them.

Customary marriages, those performed according to local custom but not licensed by civil authorities, may at times be valid for immigration purposes. Whether they are depends on whether the law of the country where the marriage occurred recognizes the marriage as valid. Such questions almost always require legal assistance from someone who is an expert in the laws of the particular country of marriage.

Marriages entered into in the U.S. are almost always valid, unless one of the parties was under the age of consent, or if the family relationship between the spouses was too close. Divorces obtained in the U.S. are also almost always valid as well. United States marriages and divorces must be registered with local civil authorities. Religious marriages and divorces that are not civilly registered are not recognized.

Is the Marriage Still in Existence?

For a person to immigrate through the spousal relationship, the marriage cannot have been legally terminated. Furthermore, if the parties are separated and do not plan to live again as husband and wife, a petition can still be denied.

In places with no-fault divorce laws, where a legal separation can mature into a divorce, the period of separation will most likely not be considered as the marriage still in existence.

Was the Marriage Entered into for Immigration Purposes?

Over the past two decades, Congress and the USCIS have grown increasingly suspicious of marriages. Since 1986, a foreign-born spouse who has been married to the petitioner for less than two years at the time of the marriage interview and approval is given conditional permanent residence for two years. While this conditional status is for the most part the same as regular permanent residence, it is designed to provide assurance that the parties did not marry for immigration purposes by allowing in some cases for the conditional permanent resident status to be terminated if the marriage does not last two years. The couple must file a joint petition to remove the conditions within the 90-day period before the two years expire. There are limited circumstances where the foreign national spouse may file a waiver of the joint petition in cases of divorce, spousal abuse, or fear of persecution in the home country.

It is important to note at the outset that it is not illegal to consider immigration consequences and opportunities in deciding to get married. Considering immigration benefits will only be a problem if that was the ONLY reason to marry and there are no other legitimate reasons. Therefore, it is important to know which factors will make the agency suspect marriage fraud.

Some of the most obvious factors include if the couple did not know each other for very long before marrying or had seen each other for very few times before marrying. Also, if the couple is in the United States and never had or does not live together, the USCIS will be very suspicious. Additionally, marriages between couples from different backgrounds, especially those that lack a common language, are sometimes viewed with suspicion (this is probably a violation of the law, but it is pretty tough to prove immigration officers are engaged in such behavior). There are a number of supporting documents that may be presented to show that the marriage is bona fide. This would include, but is not limited to, evidence of the parties’ joint ownership of property and their cohabitation, evidence of children born in the marriage, joint finances, as well as affidavits from friends and family testifying to the bona fides (the genuine nature) of the marriage.

The USCIS is more suspicious of marriages entered into after one of the parties is placed in removal proceedings or is being investigated by the USCIS. They are subject to a higher level scrutiny that has been written into the law. Thus, they must prove by clear and convincing evidence that the marriage was not entered into just to protect the foreign national from removal from the United States.

Lawful permanent residents who obtained their status through marriage as a spouse of a U.S. citizen or permanent resident are precluded for a period of five years from petitioning and approval for a second-preference visa petition filed for a new spouse. The bar does not apply if the petitioner can prove by “clear and convincing” evidence that the earlier marriage was not entered into for the purpose of getting a green card. It also does not apply if the first spouse died.


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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.

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