The spousal relationship is one of the most common and easiest ways to immigrate to the U.S. Spouses of U.S. citizens are considered immediate relatives and there are no quotas on the amount of visas in this category. As a result, the spouse will have an immediately available visa number.
If the non-citizen spouse is in the U.S. pursuant to a lawful admission, the spouse may file for an immigrant visa and permanent residence in one petition package called a “one-step.” Upon applying for the visa petition and adjustment of status to permanent residence, the spouse may obtain work authorization, and, in certain circumstances, travel permission. As long as the spouse made a lawful entry into the U.S., the spouse will be forgiven for most other “status-related” immigration violations such as work without authorization and overstaying a period of authorized stay.
What specific criterion must the marriage meet to be considered valid?
For a marriage to be considered valid it must meet the following criteria:
- The marriage must have been valid at the time it was performed;
- The marriage must still be in existence at the time the immigration process in completed (and not just when the application is submitted); and
- The marriage must not have been entered into for immigration purposes.
In addition, for the marriage to be recognized each party must have been legally able to marry, and the marriage ceremony must be considered legal under the laws where it was performed.
In cases where one of the parties had previously been married, the divorce must be final and valid. Divorces granted when only one person was present are highly suspect. Whether a subsequent marriage is valid depends on the law of the place of the new marriage.
Common law marriages are valid for immigration purposes if the laws of the place of residence legally recognize common law marriage.
Customary marriages, those performed according to local custom but not licensed by civil authorities, may at times be valid for immigration purposes. Whether they are depends on whether the law of the country where the marriage occurred recognizes the marriage as valid.
Same sex marriages are recognized for immigration purposes as long as the marriage was legal in the state or country in which the marriage was obtained.
Conditional Permanent Residence for new marriages:
A foreign-born spouse who has been married to the petitioner for less than two years is given conditional permanent residence for two years. Conditional permanent residence provides the same benefits as regular permanent residence; however, the spouse must take additional steps at the end of the two year conditional period to maintain permanent resident status. If the spouse does not file a petition to remove conditions on residence at the end of the two year period, the conditional permanent resident status automatically terminates and the foreign spouse is out of status, and may be deportable.
Marriages entered into while in removal proceedings:
There is a presumption of fraud if a marriage is entered into while the foreign spouse is in removal proceedings. Such marriages are subjected to strict scrutiny by USCIS and the married couple must submit extensive evidence to demonstrate that the marriage is, indeed, valid.