Marriage immigration is when a foreign national marries a citizen or a lawful permanent resident of the United States. To live in the United States permanently, an immigrant must hold a valid visa.
According to U.S. laws, the immediate relatives and family preferences of a U.S. citizen or permanent resident are eligible to get family-based immigration visas.
The spouse of the petitioner comes as an ‘immediate relative’. A marriage-based immigrant visa, also called a green card, can be issued to a non-citizen married to an American citizen. A green card holder is eligible to live and work anywhere in the United States. The spouse of a US citizen may then apply for citizenship in the future (after three years) through the naturalization process.
Eligibility Requirements for Marriage-Based Immigration
To get a marriage-based immigrant visa, certain requirements need to be fulfilled.
The first step in getting the green card through marriage is submitting the I-130 form, or the Petition for Alien Relatives. It is necessary to collect all relevant documents in advance. The requirements for the filing process are listed below.
1. Payment of required fees for filing I-130.
2. Proof of applicant’s spouse being a U.S. citizen or a lawful permanent resident
U.S. citizenship can be obtained through a number of ways, namely, by being born in the United States, by naturalization, or by acquiring citizenship via family. Documents that prove citizenship include a valid U.S. passport, birth certification, citizenship certificate, or a naturalization certificate.
Similarly, a lawful permanent resident can prove their residency with a valid green card.
3. Proof of a legally valid marriage
A marriage certificate is required to prove the validity of the marriage. The marriage must be legally recognized by the government where the marriage took place. The USCIS (U.S. Citizenship and Immigration Services) may also ask for other documents establishing genuinity of the marital relationship such as joint bank accounts, insurance documents, wedding photos, etc. The couple would also have to attend interviews with a USCIS officer, as the final step of the approval process. This may further help in proving that the marriage is not fraudulent or a sham.
4. Proof that any previous marriages have been terminated
Any documents of previous marriages of either of the spouses must also be submitted to prove that these marriages have been officially terminated, either by divorce or death. In the absence of these, the current marriage may fail to be recognized.
After establishing the marital relationship, the applicant can apply for the green card by filing form I-485 (for those living in the United States) or form DS-260 (for those living abroad).
Filing the form I-485 is called the adjustment of status process. The following requirements need to be fulfilled in the application process.
1. Payment of the required filing fees.
2. Proof of applicant’s nationality
The beneficiary’s birth certificate or valid passport are valid documents.
3. Copy of travel records to prove lawful entry into the United States
4. Medical examinations
5. Proof that the petitioning spouse can financially support the beneficiary
For those filing form DS-260, proof of prior run-ins with law enforcement would need to be submitted, if any, instead of travel records.
As mentioned above, the couple may have to attend an interview as the final step of the process. This would take place before final approval to establish that the marriage is not fraudulent. The interview typically focuses on the couple’s relationship and their future plans together.
Marriage Immigration Laws for Same-Sex Marriages
The Supreme Court’s ruling in the 2013 United States vs. Windsor case means that same-sex marriages must be treated the same as heterosexual marriages for immigration purposes. Same-sex couples can apply for marriage-based immigration visa if one partner is a US citizen or a permanent resident.
Immigration laws are federal, so the state in which the couple gets married is not relevant. Since 2015, same-sex marriages are federally recognized everywhere in the United States.
However, if a couple is married abroad, the country in which they were married must recognize a same-sex marriage as legal. If that is not the case, the immigrant spouse may consider applying for a fiancé(e) visa.
Obtaining a K-1 fiancé(e) visa follows a similar procedure as applying for a marriage-based green card. Once approved, the couple must get married in the United States upon 90 days of arrival, else leave the country. Fiancé(e) visas are only available when one partner is a U.S. citizen.
Reasons for a Marriage Immigration Application to be Rejected
Although a spouse lawfully married to a U.S. citizen or a permanent resident is automatically eligible for a U.S. visa, an applicant may be considered ineligible on various grounds. Some of these include:
- Criminal history or violation of specific laws
- Medical reasons
- Failure to give proof of a legal and established marriage
- Other marriages of either of the spouses are not annulled
- Country of marriage of a same-sex couple does not recognize same-sex marriages legally
- Marriage not officially recognized in the country for other reasons
- Missing information, documents, or failure to pay the full required fees
- Lies and dishonest claims of marriage
Penalty of Marriage Fraud or Marriage Immigration Violation
Marriage Immigration Fraud is when two people knowingly devise a sham marriage to obtain an immigration visa. If the couple submits falsified marriage documents or willingly gives false information on their marriage and living arrangements with intent for fraud, they are considered to be violating the law.
Marriage immigration violation is a crime and its legal consequences are serious. Both of the spouses can face severe penalties. These include deportation, imprisonment of up to five years, heavy fines, loss of immigration status, or a lifetime ban on the immigrant spouse from obtaining U.S. citizenship.
The Role of an Attorney in the Immigration Visa Process
Contacting or hiring an immigration attorney may be in the best interest of a couple seeking marriage immigration visa, if they want a smoother application process. A knowledgeable attorney would be well versed with immigration laws and the eligibility criteria. They would also help with any legal hiccups, if the need arises.