The spousal relationship is one of the most common bases for immigration to the US.  US citizens can petition for foreign-born spouses as immediate relatives, meaning the spouse will have an immediately available visa number.  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 88,000.  Spouses are also eligible to immigrate as derivative beneficiaries of a married adult child of a citizen and of brothers or sisters of citizens.

However the spouse will be immigrating, 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 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

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 US, being 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.

Marriages entered into in the US 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 US are also almost always valid as well.

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 to still be in existence.

Was the Marriage Entered into for Immigration Purposes?

Over the past two decades, Congress and the INS have grown increasingly suspicious of marriages.  Since 1986, a foreign-born spouse who has been married to the petitioner for less than two years 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 the conditional status to be revoked if the marriage does not last two years.

It is important to note at the outset that it is not against the law to consider immigration in deciding to get married.  Considering immigration benefits will only be a problem if those were the ONLY reason to marry.  So a couple, one of whom is undocumented and the other a citizen would not be breaking the law if they married before they would otherwise have planned to so the noncitizen can legalize his or her status.  Despite this, and despite the fact that it can be impossible to determine why people marry, the INS makes this determination every day.  Therefore, it is important to know what factors will make the agency suspect marriage fraud.

Some of the most obvious of these are if the couple did not know each other for very long before marrying or had seen each other only a few times before marrying.  Also, if the couple does not live together, the INS will be very suspicious, even more so if they have never lived together.  Also, marriages between couples from different backgrounds, especially those that lack a common language, are viewed with suspicion.

The INS is very suspicious of marriages entered into after one of the parties is placed in removal proceedings or is being investigated by the INS.  In such cases, the beneficiary is required to stay outside the US for two years after the marriage unless the parties can prove the marriage is bona fide.  The best way to show that the marriage is bona fide is to present evidence of the parties’ joint ownership of property and their cohabitation.  Evidence of children born in the marriage, as well as affidavits from friends and family testifying to the bona fides of the marriage are also helpful.

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.