IMMIGRATION
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.
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