Immigration Petition For Spouse

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.

If a visa number is available and the spouse is in the U.S., a green card application can be filed with the Alien Relative Petition.

The legal standing of the petitioner i.e. 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. A marriage valid in its country of celebration but against U.S. public policy is not valid for immigration.

The marriage relationship must not be fraudulent/sham or entered into solely to obtain an Immigration benefit.

Understanding Immigration Marriage Validity

A sham marriage meets legal requirements but lacks intent to live together and bypasses immigration laws. Such marriages aren’t recognized for immigration.

USCIS usually investigates the marriage’s sincerity and intent, which the petitioner and beneficiary must prove. Citizenship & Immigration Services.

Several factors can raise questions about the intent and sincerity of a marriage, prompting investigation by USCIS. Signs a marriage may be solely for immigration benefits include:

1. The study observed a large disparity of age
2. Communication barrier- inability of petitioner and beneficiary to speak each other’s language.
3. Vast difference in cultural and ethnic background;
4. Marriage arranged by a third party;
5. Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States;
6. Discrepancies in statements on questions for which spouses or partners should have common knowledge.
7. No cohabitation since marriage;
8. 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 defines marriage as a union between one man and one woman, with a spouse being of another sex.

Courts impose criminal penalties on individuals convicted of engaging in a fraudulent or sham marriage for immigration purposes.

Marrying to evade immigration laws can lead to five years in prison, a $250,000 fine, or both. Using false documents or falsifying information in an Immigrant Visa petition can result in five years in prison, a $10,000 fine, or both.

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 prohibits approving an Immigrant Visa petition from a Lawful Permanent Resident for a spouse within five years of obtaining residency through a prior marriage.

Overcoming Marriage-Based Visa Restrictions

A Lawful Permanent Resident can overcome this prohibition by proving, with clear evidence, that the prior marriage was not to evade immigration laws or that it ended due to death.

SCIS does not approve an Immigrant Visa petition for an alien spouse if the marriage occurs on or after November 10, 1986, during exclusion, deportation, or removal proceedings. The petitioner may request an exemption with clear and convincing evidence showing:

• The marriage was in good faith and not for obtaining Lawful Permanent Resident status for the beneficiary.
• The alien beneficiary has resided outside the United States for at least two years after the date of the marriage.

Upon Approval the beneficiary spouse may seek an adjustment of status if in the U.S. or seek an Immigrant Visa at the United States Embassy in his or her home country.

Where the qualifying marriage is less than two years at the time of admission, a conditional Permanent resident status is conferred.