Family Visas

The spousal relationship is one of the most common paths to immigration.

U.S. citizens can petition their foreign-born spouses as immediate relatives, which means the spouse will have a visa (green card) number made immediately available to her/him.  Lawful Permanent Residents (LPRs) can also petition their spouses, but there is no visa number immediately available.  Rather, petition falls into the second of several family immigration preference categories, which means the spouse must wait to be able to immigrate. There is a limit on the number of visas given each year in each category.  However, unlike immediate relatives, spouses of LPRs are also eligible to immigrate certain children as derivative beneficiaries of of their spousal petition.

In a spousal petition, three very important standards must be met:

• The marriage must have been valid at the time it was entered into;
• The marriage must still be in existence at the time the immigration process in completed (not just when the petition is submitted);
• The marriage must not have been entered into solely for immigration purposes.

Was the marriage valid at the time it was entered into?

• Each party must have been legally able to marry, and
• The marriage must be considered legal under the laws of where it was performed.

In cases where one of the parties was previously married, the divorce must be final and valid before a subsequent marriage.  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 are often suspect. 

Common law marriage, recognized in only a handful of states, is valid in immigration law only where the law of the place of residence legally recognizes it as such.

Customary marriages, those performed according to local custom but not licensed by civil authorities, may at times be valid for immigration purposes.  This depends on whether the law of the country where the marriage occurred recognizes the marriage as valid.

Marriages entered into in the US are almost always valid, unless one of the parties was under the age of consent, the family relationship between the spouses is too close, or there was no prior divorce.  Divorces obtained in the US are also almost always valid.

Is the Marriage Still in Existence?

For a person to immigrate through marriage, the marriage cannot have been legally terminated prior to approval of the immigrant visa (green card) application.  Moreover, if the couple is separated and do not plan to reconcile as husband and wife, the application can be denied.

Was the Marriage Entered into for Immigration Purposes?

The government has over time become increasingly suspicious of fraudulent marriages, those entered into solely for immigration purposes.  This resulted in passage of the Immigration Marriage Fraud Act in 1986, which allows a grant of conditional residence to foreign spouses married less than two years to a U.S. citizen petitioner.  While conditional resident status is in essence the same as regular permanent resident status, it is designed to provide assurance that the couple did not marry solely for immigration purposes.  In other words, conditional resident status may be revoked if the marriage does not last two years.

It is certainly not against the law to consider immigration benefits in deciding to get married.  However, this becomes a problem if immigration benefits are the ONLY reason to marry.  Therefore, a couple where one is does not have legal status and the other is a U.S. citizen will not break the law by getting married sooner than they would have so that the noncitizen can seek legal status.  Despite this, as well as the fact that it's not always possible to know why people marry, the Immigration Service continues to suspect and find cases of marriage fraud every day.  It is important, therefore, to know what factors will generally cause the agency suspect marriage fraud.

Some of the most obvious marriage fraud triggers are if the couple: 1) didn't know each other very long or had seen each other only a few times before marrying, 2) doesn't live together, 3) are from different backgrounds, especially if they lack a common language.

The Service is also suspicious of marriages entered into after one of the parties is placed in removal proceedings or is being investigated by the government.  In these cases, the couple must prove the marriage is bona fide, otherwise the foreign spouse must remain outside the US for two years after the marriage.  To show that a marriage is bona fide, among other things the couple should present evidence of joint ownership of property and cohabitation. 

Where a spousal petition is filed by a lawful permanent resident who obtained her/his LPR status through marriage, additional rules apply.  First, five years must have passed since the permanent resident spouse became a LPR.  Second, the permanent resident spouse may be required to prove that her/his prior marriage was not entered into for immigration purposes.  These additional rules do not apply if the prior marriage was terminated due to the death of the spouse.

Our mission is to provide every client with individual attention and efficient and effective representation.  For the skill, experience, and personalized service you want for all your immigration needs, whether for employment or family matters, contact the Immigration Law Office of Isabel Machado.