Immigrant Visa Petition for a Spouse of a U.S Citizen or Lawful Permanent Resident Alien.
An Immigrant Visa Petition for a spouse may be filed by a United States Citizen or a Lawful Permanent Resident of the united States using Form I-130 Petition for Alien Relative.
Where the beneficiary spouse has a visa number available and is present in the United States, an adjustment of status application- green card may be concurrently filed with the Alien Relative Petition.
The legal standing of the petitioner ie U.S. citizenship or Lawful permanent Residence status and the validity of the qualifying marriage relationship must be established.
The validity of the qualifying marriage is determined by the law of the place where the Marriage took place. However, were a marriage is valid in the country where celebrated but offensive to the united States public policy,it will not be recognized as valid for immigration purposes.
The marriage relationship must not be fraudulent/sham or entered into soley to obtain an Immigration benefit.
A sham marriage has been defined as a marriage which may comply with all the formal requirements of the law but which the parties entered into with no intent, or “good faith”, to live together and which is designed solely to circumvent the immigration laws or soley obtain an immigration benefit. Sham marriages are not recognized for immigration purposes.
The sincerity,intent,purpose and bonafide of the Marriage relationship has to be established by the Petitioner and beneficiary ,this is usually investigated by U.S.Citizenship & Immigration Services.
A number of factors may raise questions about the intent,sincerity and bona fide of the marriage, and therefore necessitate some investigation by United States Citizenship and Immigration Services. Some indications that a marriage may have been contracted solely for immigration benefits may include;
- Large disparity of age;
- Communication barrier-Inability of petitioner and beneficiary to speak each other’s language.
- Vast difference in cultural and ethnic background;
- Marriage arranged by a third party;
- Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States;
- Discrepancies in statements on questions for which a husband and wife should have common knowledge;
- No cohabitation since marriage;
- Petitioner has filed previous petitions on behalf of aliens, especially prior alien spouses.
Whether an alleged marriage is valid for purposes of immigration is a question of Federal law not of State law.
Federal law has defined the word ‘marriage’ to mean only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife. For a marriage relationship to qualify for purposes of Immigration Law one partner must be a man and the other a woman.
Criminal penalties imposed on individuals who are convicted of having engaged in a fraudulent/sham marriage for immigration purpose.
A person may be imprisoned for up to five years or fined $250,000, or both, for entering into a marriage contract for the purpose of evading any provision of the immigration laws. In addition, a person may be fined up to $10,000 and imprisoned for up to five years, or both, for knowingly and willfully falsifying or concealing a material fact or using any false document in submitting an Immigrant Visa petition.
A finding of marriage fraud will lead to a denial of the application and prevent the alien spouse from obtaining any immigration benefit in the future.
The law generally prohibits the approval of an Immigrant Visa petition filed by a Lawful Permanent Resident for a spouse within five years of the date on which the petitioner became a Lawful Permanent Resident if that Lawful Permanent Resident obtained his or her Lawful Permanent Residence status through a prior marriage.
The Lawful Permanent Resident can overcome this prohibition if he or she establishes by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading the immigration laws, or that the prior marriage ended through death.
There is a prohibition against approval of an Immigrant Visa petition filed on behalf of an alien by a United States citizen or a Lawful Permanent Resident spouse if the marriage creating the relationship occurred on or after November 10, 1986, and was contracted while the alien was in exclusion, deportation, or removal proceedings. The petitioner can request an exemption from the above prohibition if he or she Is able to establish through clear and convincing evidence that:
- The marriage was entered into in good faith; and not entered into for the purpose of obtaining Lawful Permanent Resident status for the beneficiary; or
- The alien beneficiary has resided outside the United States for at least two years after the date of the marriage.
Where the qualifying marriage is less than two years at the time of admission,a conditional Permanent resident status is confered.