Regardless of one’s opinions, US immigration law purports to favor the unification of immediate families. Accordingly, spouses of US citizens are granted priority status for purposes of applying for permanent residency. US citizens are permitted to apply for immigration of their spouses and those spouses are entitled to immediately processing of their permanent residency applications. Fears that people fraudulently abuse this category of immigrants has also led to statutes that impose harsh penalties on those who marry strictly for immigration reasons.

The first issue that must be resolved in marriage cases is whether the marriage is actually valid. There are a number of issues that must be resolved here. First, is the marriage legal for immigration purposes? Generally speaking, the marriage needs to be valid in the place where it was celebrated. There are a few exceptions to this rule. For example, homosexual or polygamous are not permitted. A marriage to a blood relative is permitted if it is legal in the state where the marriage occurs, but the INS may question the intentions of the parties to see whether the parties were marrying in one state because their home state prohibited such a marriage. Proxy marriages are also not recognized for immigration purposes. Common law marriages are permitted if the marriage is recognized by the jurisdiction where the parties are living. A religious ceremony alone will not create a valid marriage for immigration purposes in countries requiring a civil ceremony.

A related issue that may arise is whether a prior marriage renders the current marriage invalid. If either spouse is not free to marry, then, of course, the application for permanent residency will be denied. Generally speaking, divorces in foreign countries are valid in the US and are recognized for immigration purposes. An exception might occur when the foreign jurisdiction does not have the legal authority to grant a divorce. This is frequently the case for “quickie” or “mail-order” divorces in jurisdictions where neither spouse resides. The major factors that go into determining whether a divorce will be recognized are whether the parties to the divorce were both physically present in the jurisdiction granting the divorce, whether both parties consented to the jurisdiction of the court and whether there was some prior residence in the country. Customary or tribal divorces have been recognized in some cases by the INS. Interlocutory, or temporary, divorce decrees are not considered acceptable, however. If the first spouse cannot be located, some states will permit a divorce simply by meeting relevant notice requirements. Where this is not available, some states have laws which create a presumption that the missing spouse is dead.

The second issue that must be resolved is whether the marriage is viable. If two people marry (even though they are legally free to marry and the marriage is legal in the jurisdiction where it occurs), but the couple does not intend to reside together or have the normal husband-wife relationship, the marriage is not valid for immigration purposes. The question will be whether the parties had the appropriate intentions at the time of contracting the marriage. Theoretically, a couple that informally separates before the green card interview can be approved if the marriage has not been legally terminated (either through divorce or legal separation) and the parties can demonstrate their good faith intentions.

The INS takes a position that a great number of marriages between US citizens and foreign nationals are fraudulent. Congress felt the same way and passed the Immigration Marriage Fraud Amendment Act of 1986. The major effect of the bill was to create conditional status for spouses of US citizens for a two year period after initial approval by INS (unless the couple is married more than two years at the time of granting of immigrant status). In effect, the foreign spouse receives a temporary green card. The condition on the green card can be removed two years after the grant of conditional status if the couple can demonstrate that the marriage was legitimately entered. It is possible that a couple that is divorced prior to the two year interview will get permanent residency, but it will be necessary to prove that the marriage was not fraudulently entered into by the parties.

The application process for applying for applying for permanent residency for a spouse depends on whether the spouse is in the United States or outside the United States. If the non-US spouse is outside the United States, consular processing will be required. The US citizen spouse must first file Form I-130 Petitioner for Immigrant Relative with the INS regional office having jurisdiction over the US citizen spouse and the INS must confirm the necessary spousal relationship actually exists. US citizen spouses residing in Austria, Germany, Greece, Hong Kong, India, Italy, Kenya, Korea, Mexico, Philippines, Singapore, Thailand and the United Kingdom can file their I-130 petitions at INS offices located in those countries. US Consular officers have the authority to accept the filing of an I-130 by a US citizen spouse even if the citizen does not reside in the consular district.

If the foreign national spouse is in the US, the applicant normally will apply for adjustment of status to permanent residency with the closest INS District Office. The couple will simultaneously file Form I-130 and Form I-485 Application for Adjustment of Status.

Whether one is filing for consular processing or adjustment of status, the applicant will need to submit a number of additional documents including the following:

* marriage certificate
* proof of termination of prior marriages (such as divorce decree or death certificate)
* passport, birth certificate, or naturalization certificate of US citizen
* proof of the viability of the marriage such as the following:
– birth certificates for children of the couple
– wedding pictures
– rental receipts or agreements showing both spouses as lessees
– joint bank account statements and/or credit cards
– auto insurance and registration showing both spouses as carriers and owners
– wedding announcement and/or wedding photographs
– cards and letters between both parties
– letter from employer to show the foreign spouse has been included as a
beneficiary in the employer’s insurance coverage
– joint income tax returns
– letter from parents of the US citizen stating the marriage is bona fide
* Biographical information (INS Form G-325A) and photographs for both spouses
* Medical exam for foreign spouse
* Fingerprint check

Since the movie “Green Card,” the Stokes type of interview for marriage cases has become quite famous. During marriage case interviews, INS examiners will frequently probe into personal areas of a married couple’s lives in order to assess whether the parties are actually living together as a bona fide married couple. It is not unusual for questions to arise regarding such matters as how the couple celebrated various family occasions, the layout of the couple’s home, product brands that are used in the home and other seemingly trivial questions. It is also not unusual for the spouses to be interviewed separately and for the interview to be videotaped.

As noted above, the foreign spouse will be granted conditional residence, unless the marriage is more than two years at the time of the granting of immigrant status. Conditional residence will normally be lost if the marriage terminates prior to the two year anniversary of the granting of conditional status, the marriage was entered for a fee or other consideration, the couple fail to file a Form I-751 petition to remove conditional residency in the 90 day period before the second anniversary of conditional residency, or one of the spouses fails to appear at the INS interview.

If the marriage ends or the US citizen spouse fails to cooperate in the filing of the I-751 application, the foreign spouse can file for a waiver. Waivers will be granted if the applicant can show:

– extreme hardship if the applicant is deported or
– the marriage was entered into in good faith and terminated
If the waiver is based on good faith entry into the marriage, the applicant should submit documents showing merged financial assets, length of the time the couple lived together and the grounds for the divorce. The waiver may be submitted before or after the 90 day period.

Finally, it is important to note that the marriage fraud can lead to not just the deportation of the foreign spouse, but potential criminal consequences for either spouse. Potential criminal violations include visa fraud, conspiracy and marriage fraud.

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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. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.

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