Getting a Green Card through Your Spouse
By Masood Khan

(This column is not to be construed as legal advice and is of a general nature. Be sure to consult an attorney for your specific legal issues).

The most common and easiest way to get legal permanent residence in the US is through one’s spouse. If you’re an American citizen, you can petition for your alien spouse as immediate relatives which means that your spouse will have a visa number immediately available.

If you are currently a legal permanent resident (green card holder) you can still sponsor your foreign-born spouse. However, the process will take much longer because the petition falls into the “second preference” family category which has an annual limit of 114,200 visas. The second preference also includes adult unmarried children of permanent residents. This category is backlogged several years.

Requirements for a valid marriage
There are three basic standards that the marriage must meet in order for it to be considered valid.

* The marriage must have been valid (i.e. legally) at the time it was performed
* The marriage must still be in existence at the time the immigration process in completed
* The marriage must not have been entered into solely for immigration purposes
How do you know the marriage was valid at the time of performance?
For a marriage to be valid, there are two primary requirements:
* Each spouse must have been legally able to marry, and
* The marriage ceremony must be considered legal under the laws where it was done

If one of the parties has been previously married, the divorce must be final and valid in accordance with the law where it occurred. Divorces granted when only one person was present, especially in countries known for granting divorces in such cases, are highly scrutinized by the USCIS. Whether a subsequent marriage is valid depends on the law of the place of the new marriage.

Marriages occurring in the US and which are legally registered with the appropriate government agency 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.

How do You Know if the Marriage Still in Existence?
For a person to immigrate through his spouse, the marriage cannot have been terminated. In addition, even if the marriage is not terminated but if the parties are separated and do not plan to live again as husband and wife, a petition can still be denied.

Was the Marriage Entered into for Immigration Purposes?
USCIS is known to scrutinize marriages very closely to determine if they are genuine. A foreign-born spouse who has been married to the petitioner for less than two years is given conditional permanent residence for two years. This means that after 2 years have elapsed, USCIS requires that the couple submit additional paperwork and perhaps even submit to an additional interview to make sure that the marriage is still existing and whether it was in fact a genuine marriage.

It must be noted that it is not illegal to consider immigration status when deciding to get married. However, it is when immigration status is the sole consideration in a marriage that the genuineness of the marriage comes into question. Therefore, it is important to know what factors will make the agency suspect a marriage fraud.

For example, if the couple is not living together, or if the two share no common language or background, the USCIS may view the marriage with suspicion. In addition, the USCIS is very suspicious of marriages that occur after one of the parties is placed in deportation proceedings. However, if the marriage is bona fide, there are several supporting documents that could be presented which would easily prove that the marriage is real.


Editor: Akhtar M. Faruqui
2004 . All Rights Reserved.