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: usvisa@visaus.com

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 identifica-tion.
    * 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 the Immigration and Naturalization Service 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 of the date he or she got that status from INS. The expiration date should be on the front of the "green card."
    Common law marriage is recognized in Alabama, as well as by some other states. Marriage laws are under the exclusive jurisdiction of our state legislatures. The federal government has no business telling you whom you can and cannot marry. You can rely on your immigration lawyer should be able to help the couple provide the proof necessary to prove a common-law marriage exists.
   Finally, you should be aware that U.S. immigration law changed dramatically on September 30, 1996, when the U.S. Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Even if you obtained a visa or immigration benefits in or prior to 1996, you should 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 alien spouse should file an INS Form I-485, Application to Register Permanent Residence or Adjust Status. Following is a short list of some of the evidence required to support this 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 was not entered into in order to evade U.S. immigration laws.

    Within 90 days of the second anniversary of the foreign spouse being granted conditional permanent resident (CPR) status, the parties must apply for removal of the condition, and will be scheduled for an interview at the INS 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 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 the condition, either jointly with the U.S. citizen spouse, or alone.
    If the INS issues an order 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 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. The INS considers these forms to be legal cases for adjudication. 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., (202) 216-2400.

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
E-mail: usvisa@visaus.com

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