Immigrant visas for spouses of U.S. citizens

Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 USA

Telephone: (334) 832-9090
E-mail: CLICK HERE

Immigrant visas for spouses of U.S. citizens

By BOYD F. CAMPBELL
Attorney at Law and Civil Law Notary

    A U.S. citizen may file a petition on behalf of his or her spouse, and, if the spouse meets the eligibility requirements for the immigrant visa ("green card"), the visa is made available to the spouse "immediately," based upon this close family relationship.
    Often, the real issue in a case based upon marriage is not whether the spouse can get the visa, but whether the spouse is eligible to either adjust his or her status in the United States to that of an immigrant, or successfully complete consular processing in a foreign country. Currently, there are no immigration benefits for foreign nationals who enter the United States illegally, i.e., "without inspection."
    To get approval for the petition, both the U.S. citizen and the spouse should be of marriageable age, be free to marry, and provide proof that a valid marriage exists (the marriage certificate, for example).

Marriage fraud factors

    Other issues involving marriage revolve around the "marriage fraud factors" passed by Congress in 1986 to discourage "sham" or marriages of convenience to get around the immigration laws and illegally obtain federal immigration benefits.
    A list of factors that contribute to a determination by an examiner for the Immigration and Naturalization Service (INS) that the parties got married to get around the immigration laws follows:
    * Rapid sequence of events (marriage, divorce, claimed death prior to filing petition ? adverse action by INS).
    * Age difference -- 10 years or more.
    * Prior marriages by petitioner to aliens or by aliens to U.S. citizens or lawful permanent resident aliens.
    * Marriage outside ethnic or religious group.
    * Marriage to "entry without inspection" alien not of the Western Hemisphere.
    * Witnesses to marriage are same nationality as beneficiary.
    * Beneficiary and petitioner claim separate address; beneficiary departed U.S. after marriage.
    * Confidential marriage. This is a special proce-dure in California where the parties can request that their marriage not be recorded in the public record.
    * Beneficiary has minor children residing abroad.
    * Inconsistent or nonexistent petitioner identification.
    * Excessive documentation in support of the application (e.g., Forms I-864, Affidavits of Support, submitted by relatives other than spouse).

    Many people try to navigate the federal bureaucracies, including Citizenship and Immigration Services (CIS, formerly the INS) of the U.S. Department of Homeland Security and U.S. Department of State and its overseas consulates, on their own. If you are doing this yourself, you should not "over-document" the case. Just prepare the required documents and provide the letters, photographs, insurance and financial documents, etc., that verify the length and sincerity of the relationship. Also, do not fail to file for removal of the condition of the foreign spouse's conditional permanent resident status within 90 days before the date he or she got that status from CIS. The expiration date should be on the front of the conditional resident "green card."
    Common law marriage is recognized in Alabama, as well as by some other states. Marriage laws in the United States are under the exclusive jurisdiction of state legislatures. The federal government has no business telling you whom you can and cannot marry. If you are married at common law, you can rely on your immigration lawyer to help you provide the documentary evidence necessary to prove it.
    Finally, you should be aware that U.S. immigration law and federal bureaucratic and administrative procedures change frequently and dramatically because Congress has passed so much patchwork legislation during the past 20 years. If you got a "green card" even 10 years ago, you would be amazed at how the process has changed and how difficult the government makes it to immigrate the "legal way". That's certainly one good reason to consult a qualified immigration lawyer about any new visa application process.

Adjustment of status (the 'green card')

If the spouse is in the United States, the U.S. citizen spouse files Form I-130, Petition for Alien Relative, and the alien spouse files Form I-485, Application to Register Permanent Residence or Adjust Status, along with applications for employment authorization and travel documents. Following is a short list of some of the evidence required to support this an I-485 application:

    • Documentation showing joint ownership of property
    • Lease showing joint tenancy of a common residence
    • Documentation showing commingling of financial resources
    • Birth certificates of children born to the petitioner and beneficiary
    • Affidavits of third parties having knowledge of the validity of the marital relationship
    • Other documentation establishing that the marriage is bona fide and was not entered into in order to evade U.S. immigration laws

    Within 90 days before second year of the foreign spouse being granted conditional permanent resident (CPR) status, the parties must apply for removal of the condition, and may be scheduled for an interview at a CIS district office. Depending upon the country of origin of the foreign spouse, this interview can be either easy or difficult. Examiners look for "marriage fraud" factors, particularly if the country of origin of the foreign spouse is what is deemed a "high fraud" country.
    If the marriage ends within the two years, or the parties are separated, the foreign spouse can still file for removal of conditions, either jointly with the U.S. citizen spouse, or alone.
    If the CIS issues an order to show cause why the spouse should not be deported, the matter becomes more serious and should be examined by a qualified immigration lawyer.
    Lawful permanent resident aliens may also file immigrant visa petitions on behalf of their spouses and children, but all such petitions are subject to minimum four- to six-year waiting periods for the availability of an immigrant visa.

WARNING: Family, friends, fellow workers, and acquaintances are good sources of bad advice about immigration law and application procedures. Your future in the United States is too important to trust to someone who may want to help you but really doesn't know how. Citizenship and Immigration Services considers these forms legal cases for adjudication under the federal Administrative Procedures Act. You may need the help of a qualified immigration lawyer. If you do not know one, please call the American Immigration Lawyers Association in Washington, D.C., toll-free, 1-800-954-0254.

Boyd F. Campbell is a member of the American Bar Association (ABA) and the American Immigration Lawyers Association (AILA). He served as Chair of the Immigration Law Committee of the ABA's General Practice / Solo and Small Firm Lawyers Section and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998. He is also a member of the ABA's International Law Section. Mr. Campbell served as Chair of the International Law Section of the Alabama State Bar from 2000 to 2002. In August, 2001, he was appointed Alabama's first practicing civil law notary by the Alabama Secretary of State. He is listed in The Best Lawyers in America Consumer Guide, published by Woodward/White, Inc. Best Lawyers is a subscription service available on the World Wide Web at www.bestlawyers.com.

Questions or comments about this article may be directed to:
Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 USA

Telephone: (334) 832-9090
Send email: CLICK HERE

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