Marriage Based Green Card
United States Citizens and lawful permanent residents can petition for their spouses to become permanent residents in the United States. If the alien spouse is currently in the United States, it may be possible to adjust status and become a permanent resident without having to leave the U.S. Oftentimes, concurrent filing of the I-130 visa petition and I-485 adjustment application is wise if the petitioner is a US citizen.
As a general rule, if the marriage is valid under the law of the place of celebration, it is valid under US immigration laws. However, if the marriage is valid in the country where celebrated but considered offensive to public policy of the United States, it will not be recognized under US immigration laws. Plural marriages fall under this category. The petitioner should provide a valid marriage certificate that has been duly certified by the appropriate government agency. Recently, the validity of gay marriage has changed under federal immigration laws. Now, same sex marriage is viewed as having the same rights.
Proxy marriages, whereby the spouses are not physically present at the marriage ceremony are not acknowledged under federal immigration laws. Under INA 101(a)(35) provides that "spouse", "wife", and "husband" do not include those that entered into marriage if they were not physically present at the ceremony. An exception exists if the marriage was consummated after the ceremony.
At the time of the marriage, both spouses must be free to marry, meaning any and all prior marriages must be terminated. In cases of prior marriage, the spouses must provide divorce decrees to prove termination. A legal separation is not proof of freedom to marry. Alternatively, annulment decree or death certificate of prior spouse proves freedom to marry.
Depending on whether the couple will pursue consular processing of the visa petition or adjustment of status, there may be an interview involved. With adjustment of status, the petitioner and the spouse will attend an interview at the local USCIS office. The main goal is to determine whether the marriage is bona fide. The viability of the marriage is not the issue. USCIS should not speculate or determine whether the couple is likely to remain together for a long time. Although the petitioner and spouse may not appear to have a viable marriage, the petition should be approved if the couple did not enter into the marriage solely for immigration purposes. USCIS officers are well-trained to look for indications that a marriage was entered into for immigration purposes. If the officer believes the marriage was not entered into in good faith, she can take part in more in depth questioning, order a field examination or a full investigation.
In depth questioning could involve separating the petitioner and beneficiary to ask questions separately. The officer then compares the answers. A field examination generally involves the officer leaving the USCIS office and interviewing neighbors, relatives, employers and colleagues at their homes, work, community centers and other locations. A full investigation is serious and may involve overseas investigations.
A sham marriage has been defined by the Board of Immigration Appeals as a marriage that complies with all the formal requirements of the law but which the parties entered into with no intent to live together and which is designed solely to circumvent the immigration laws. Sham marriages are not recognized for immigration purposes. If USCIS rules that a person has taken part in (or attempted to take part in) a sham marriage, the beneficiary will not be eligible to pursue a separate marriage based petition. Additionally, INA 204(c) prohibits the approval of any petition for the beneficiary, not just an I-130 petition. For example, such an alien would be barred from having an I-140 approved based on employment.
When an alien is in deportation/removal proceedings and gets married, there is a general prohibition on approval of the visa petition. The petitioner can request an exemption of he or she is able to prove through clear and convincing evidence that the marriage was entered into in good faith and not for the purpose of obtaining permanent residency. The interview process in these cases can be strenuous with the officer asking fifty detailed questions to the sequestered spouses and scrutinizing the answers meticulously. Field examinations are routine as well.
If the marriage is less than two years at the time of adjustment or admission, and the green card is approved, the beneficiary is granted conditional permanent resident status. The green card will expire two years after approval. This means the couple must submit an I-751 petition to remove conditions from residency during the ninety days preceding the expiration of the green card.
I am so happy about this green card. Thanks for all your hard work. I appreciate it. Now I don't need to live in the shadows.
How Nelson & Nuñez, P.C. Can Help
We can process any green card application or petition. We will carefully analyze your case and make recommendations on the most appropriate strategy for you. We assist with preparing all the necessary forms and acquiring and organizing all the required documents to maximize your opportunity to have your green card granted. We will continue the case through the adjustment of status or consular processing stage until the principal applicant and family members receive the green card.